Citation Nr: 1800337 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 09-39 533 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to diabetes. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes. 4. Entitlement to service connection for hypertension, to include as secondary to diabetes. 5. Entitlement to service connection for a kidney disability, to include as secondary to diabetes. 6. Entitlement to service connection for diverticulitis, to include as secondary to diabetes. 7. Entitlement to an effective date earlier than September 5, 2015, for the award of service connection for a back disability. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Bates, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) from the RO. In December 2011 and May 2015, the case was remanded for additional development. In June 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of that proceeding has been associated with the record. The issues of entitlement to service connection for hypertension, diverticulitis, and kidney disabilities, and entitlement to an earlier effective date for the service-connected back disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been diagnosed with diabetes during the pendency of his claim, suffered an injury to his pancreas during active duty, and the competent medical evidence of record indicates that this injury caused his diabetes. 2. The Veteran has been diagnosed with peripheral neuropathy of his upper and lower extremities, has been service-connected for diabetes, and the competent medical evidence of record indicates that his neuropathy was caused or aggravated by his diabetes. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017) 2. The criteria to establish service connection for peripheral neuropathy of the upper extremities have been met. 38 C.F.R. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria to establish service connection for peripheral neuropathy of the lower extremities have been met. 38 C.F.R. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for diabetes The Veteran seeks service connection for diabetes mellitus, type 2. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) the existence of a present disability; (2) an 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). The Veteran has been competently and credibly diagnosed with diabetes during the pendency of his claim, which satisfies the first service connection element. Shedden, 381 F.3d at 1167. The Veteran has also clearly established that he suffered from an injury to his pancreas during active duty, which satisfies the second service connection element. See id. Regarding the final element of causation, the Board observes that the Veteran submitted a medical opinion, which states that his active duty pancreatic trauma "most likely" caused his diabetes. See Private Medical Opinion, 2 (Jan. 15, 2016). Affording the Veteran the benefit of the doubt, the criteria to establish service connection for diabetes have been met. See Gilbert v. Derwinski, 1 Vet. 49 (1990). Service connection for peripheral neuropathy of upper and lower extremities The Veteran seeks service connection for peripheral neuropathy of his upper and lower extremities as secondary to his now service-connected diabetes. Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, (2) an already service-connected disability, and (3) that the disability for which secondary service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has been diagnosed with peripheral neuropathy of his upper and lower extremities, and he is now service-connected for diabetes. Thus, the Board finds that he has satisfied the first two elements of secondary service connection. See Allen v. Brown, 7 Vet. App. 439 (1995). Regarding the final element, the Board observes that the Veteran has submitted a private medical opinion that clearly attributes his neuropathy to diabetes. See Private Medical Opinion, 2 (Jan. 15, 2016). Affording the Veteran the benefit of the doubt, secondary service connection for peripheral neuropathy of his upper and lower extremities is warranted. ORDER Service connection for diabetes mellitus, type 2, is granted. Service connection for peripheral neuropathy of the upper extremities is granted. Service connection for peripheral neuropathy of the lower extremities is granted. REMAND Regarding the remaining service connection claims for hypertension, diverticulitis, and kidney disabilities, although the Veteran has been provided with various VA examinations, they are inadequate to fairly adjudicate these claims due to the conclusory and incomplete rationales of the accompanying medical opinions; consequently, the claims must be remanded for additional examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Regarding the earlier effective date for service-connected back disability, the Board observes that although the RO granted entitlement to service connection for the disability in October 2015, the Veteran was not provided with an appropriate notice of disagreement (NOD) form. See 38 C.F.R. § 20.201(a) (2017); see also Veterans Justice Group, LLC v. Secretary of Veterans Affairs, 818 F.3d 1336 (Fed. Cir. 2016) (upholding the validity of 38 C.F.R. § 20.201(a)). In light of the fact that the Veteran was not sent such a form, the traditional rules governing NODs apply. See 38 C.F.R. § 20.201(b) (2017). Notably, the Veteran submitted correspondence in November 2015 that appeared to express disagreement with the October 2015 disposition of his back disability claim; consequently, the Board finds that this statement was a timely NOD. See Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). When there has been initial RO adjudication of a claim and a NOD as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2017). Thus, remand for issuance of an appropriate SOC on this issue is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). This issue will be returned to the Board after issuance of the SOC only if it is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to the claims remaining on appeal. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any kidney disability present. For any diagnosed disability, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the disability was caused by, or otherwise related to, the Veteran's active duty service. The examiner should also opine whether any diagnosed disability was caused OR aggravated by any of the Veteran's service-connected disabilities, to include diabetes. A clear and complete rationale should be provided for any opinions expressed. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his hypertension. The examiner should opine whether it is at least as likely as not that the Veteran's hypertension was caused by, or otherwise related to, the Veteran's active duty service. The examiner should also opine whether the hypertension was caused OR aggravated by any of the Veteran's service-connected disabilities, to include diabetes. A clear and complete rationale should be provided for any opinions expressed. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed diverticulitis. If diverticulitis is found, the examiner should opine whether it is at least as likely as not that the disability was caused by, or otherwise related to, the Veteran's active duty service. The examiner should also opine whether the diverticulitis was caused OR aggravated by any of the Veteran's service-connected disabilities, to include diabetes. A clear and complete rationale should be provided for any opinions expressed. 5. Provide the Veteran with a SOC regarding the issue of entitlement to an earlier effective date for the grant of service-connected back disability. Advise the Veteran of the time period in which to perfect his appeal. If the appeal is perfected in a timely fashion, return the case to the Board for review as appropriate. 6. Then, re-adjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, issue the Veteran a supplemental statement of the case and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs