Citation Nr: 1753658 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-32 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to Agent Orange exposure. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a deep wound to the left thigh, Muscle Group (MG) XV. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force (USAF) from August 1970 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified before the undersigned at the Montgomery, Alabama RO. A copy of the hearing transcript has been associated with the record. During the hearing, the Veteran submitted a report, prepared by A.R., M.D., along with a waiver of initial RO consideration. Thus, a remand to have the RO consider this evidence in the first instance in a Supplemental Statement of the Case (SSOC) is not required. 38 C.F.R. § 20.1304 (2017). The Board notes that VA vocational rehabilitation records were added to the record after issuance of a May 2016 SSOC. As the decision to grant service connection for diabetes mellitus, type 2, in the decision below is fully favorable to the Veteran, there is no prejudice to him in not having the claim remanded to the Agency of Original Jurisdiction (AOJ) to have it issue a SSOC addressing the VA vocational rehabilitation records. Id; Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The issue of entitlement to an initial disability rating in excess of 10 percent for residuals of a deep wound to the left thigh, MG, XV, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, diabetes mellitus, type 2, had its onset during active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties to notify and assist is not required at this time. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). The Veteran seeks service connection for diabetes mellitus, type 2, to include as due to Agent Orange exposure. The Veteran has maintained, in both oral testimony and written statements, that his diabetes mellitus is the result of having been exposed to Agent Orange during service as an aircraft maintenance specialist while on temporary duty assignment (TDY) at Elgin Air Force Base in 1971. Transcript (T.) at pages (pgs.) 5-6. However, and as discussed in more detail below, the Board's award of service connection for diabetes mellitus is not based on exposure to herbicides, but on a direct service connection theory, thus, further discussion as to the laws and regulations governing Agent Orange will not be discussed herein. Generally, direct service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as diabetes mellitus is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.§ 1101; 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board finds that the first element of service connection has been met as there is current disability. A diagnosis of diabetes mellitus, type 2, was noted in reports, dated in December 2009, February 2011, and September 2017 from Dr. AR. Therefore, the Veteran has met the current disability requirement. The next issue is thus whether his diabetes mellitus, type 2, is in any way related to his period of military service. The Veteran's service treatment records, notably a June 1969 pre-induction examination report reflect that his endocrine system was evaluated as "normal." In a December 1973 STR, it was noted that the Veteran was placed on a 1500 calorie diet. A 1974 STR noted the Veteran gained weight and had a family history of diabetes. A September 1975 treatment record includes a notation that the Veteran had a history of diabetes mellitus. Other STRs note conjunctivitis, multiple infections, and removal of recurrent cysts. A June 1977 service discharge examination report reflects that the Veteran's endocrine system was evaluated as "normal." A blood sugar laboratory test was negative. On an accompanying Report of Medical History, the Veteran denied having had sugar or albumin in his urine. In reports, Dr. AR., dated in December 2009 and February 2011, he opined that a review of the Veteran's STRs revealed that he had received treatment during the 1970s for recurrent abscesses/cysts and chronic visual symptoms that might have been due to hyperglycemia or diabetes. Thus, according to Dr. A.R., it was plausible that the Veteran's symptoms had started in the 1970s, but that he was not diagnosed. In a September 2017 report, Dr. AR opined that the Veteran's in-service treatment eye problems, and multiple infections, as well as being advised by a dietician to be placed on a 1500 calorie a day diet in 1973, were early signs of diabetes mellitus that led to the Veteran eventually being diagnosed with this disability in 1975. The Board accords this opinion significant probative value as it was based upon a review of the relevant medical evidence and was supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("Not only must the medical opinion clearly consider direct service connection, it must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") There is no contrary opinion of record. The Board thus resolves reasonable doubt in the Veteran's favor, and will grant direct service connection for diabetes mellitus, type 2. 38 C.F.R. § 3.303. ORDER Service connection for diabetes mellitus, type 2, is granted. REMAND The Board finds that prior to further appellate consideration of the initial rating claim on appeal, additional substantive development is required for an adequate examination. The Veteran's deep wound to the left thigh, MG, XV, is evaluated under Diagnostic Codes 5315. This Diagnostic Code reflects that the Muscle Group's' function includes various combination of flexion and extension of the adduction and flexion of the hip and flexion of the knee. 38 C.F.R. § 4.73, Diagnostic Coded 5315 (2017). The proper evaluation of this Muscle Group injury requires tests of strength and endurance compared with the sound, uninjured sides. 38 C.F.R. § 4.56 (2017). VA last examined the Veteran to determine the current (then) severity of his residuals of a deep wound to the left thigh, MG, XV in April 2016. On his May 2016 VA Form 9, the Veteran testified that his left thigh disability had "deteriorated" since the April 2016 examination. He also maintained that the May 2016 examination was cursory, at best. The Board notes that range of motion testing conducted during the April 2016 failed to include muscle strength and endurance testing compared with the sound, uninjured side. See 38 C.F.R.§ 4.56. The examination also failed to include joint testing of the knees and hip for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Board finds that VA must provide an examination that considers the full effects of the Veteran's residuals of a deep wound to the left thigh, MG, XV, while on remand. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Centers and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected residuals of a deep wound to the left thigh, MG, XV. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the right knee and hip and left knee and hip. The examiner must also test muscle strength and endurance compared with the sound, uninjured side. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the initial rating claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the initial rating claim must be readjudicated. If the initial rating claim remains denied, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs