Citation Nr: 1807423 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-20 011A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for psoriasis and skin rash. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a hiatal hernia with gastrointestinal reflux disease. 3. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to November 1985 with additional service in the Florida National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction has since been transferred to St. Petersburg, Florida. By way of history, an August 2011 rating decision denied service connection for diabetes mellitus and denied to reopen claims of entitlement to service connection for psoriasis and skin rash and a hiatal hernia with gastrointestinal reflux disease. The Veteran submitted a timely notice of disagreement (NOD) in October 2011. In June 2014, the RO issued a statement of the case (SOC) which continued denials of the claims, as well as addressed issues of entitlement to service connection for bilateral feet hyperkeratosis and increased ratings for anxiety disorder, not otherwise specified (NOS), with depression and tension headaches. In June 2014, the Veteran submitted VA Form 9, indicating that he had received the 2014 SOC and only wished to appeal the issue of service connection for diabetes mellitus and the issues to reopen his claims of entitlement to service connection for psoriasis and skin rash and a hiatal hernia with gastrointestinal reflux disease. Accordingly, these claims are now before the Board. In July 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board notes that additional VA medical records and Social Security Administration (SSA) records have been associated with the claims file since the June 2014 SOC. However, as discussed below, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review these records on remand. The issue of entitlement to service connection for diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to the promulgation of a decision, the Veteran indicated at his June 2017 Travel Board hearing that he wished to withdraw his appeal to reopen a claim of service connection for psoriasis and skin rash. 2. Prior to the promulgation of a decision, the Veteran indicated at his June 2017 Travel Board hearing that he wished to withdraw his appeal to reopen a claim of service connection for a hiatal hernia with gastrointestinal reflux disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal to reopen a claim of service connection for psoriasis and skin rash are met. 38 U.S.C. § 7105(d)(5) (2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal to reopen a claim of service connection for a hiatal hernia with gastrointestinal reflux disease are met. 38 U.S.C. § 7105(d)(5) (2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the July 2017 Board hearing, the Veteran indicated that he was withdrawing his appeals to reopen claims of service connection for psoriasis and skin rash and for a hiatal hernia with gastrointestinal reflux disease. See July 2017 Board Hearing Transcript. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). As these appeals were withdrawn on the record at a hearing, the Board does not have jurisdiction over them and they are dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. As the Veteran has withdrawn these issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction over the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for psoriasis and skin rash and a hiatal hernia with gastrointestinal reflux disease and these issues are dismissed. ORDER The appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for psoriasis and skin rash is dismissed since withdrawn. The appeal of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a hiatal hernia with gastrointestinal reflux disease is dismissed since withdrawn. REMAND The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, and that his currently diagnosed diabetes mellitus was incurred during his National Guard service in 2010. As a preliminary matter, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d) (2017). In the July 2017 Board hearing, the Veteran testified that during his service in the National Guard, a routine medical examination in 2010 diagnosed the Veteran with diabetes mellitus. He stated that in 2010, he began to go through medical board proceedings to be discharged from service due to neck and back injuries. The Veteran testified that during an initial evaluation related to the medical board proceedings, the physician noted that the Veteran's low back pain, neck injury, and diabetes mellitus were incurred in the line of duty. The Veteran noted that he only had six days of active training in 2010 and explained that in May or June of 2010, he began going to the medical board and was advised not to go to drill anymore. Review of the evidentiary record reveals that the Veteran attended a follow-up visit at VA medical center (VAMC) on March 10, 2010 for chronic pain he was experiencing all over. Lab work showed elevated glucose and hemoglobin A1C (HbA1c) levels. The Veteran was assessed with diabetes mellitus, type II, which was noted to be a new diagnosis. He was prescribed metformin, educated about a diabetes diet, and scheduled for a diabetes mellitus education consultation. A July 2010 medical evaluation board examination report noted that the Veteran's diabetes mellitus, type II, was incurred in the line of duty; however, the report failed to identify the date of initial onset or provide further explanation, rationale, or evidence to support the finding that diabetes was incurred in the line of duty. The Board acknowledges that the medical evidence shows that the Veteran was initially diagnosed with diabetes while still enlisted in the Florida National Guard. As noted above, a National Guardsman seeking service connection for a Guard-related injury or disease must establish that they either became disabled or died from a disease or injury incurred during a period of ACDUTRA, or became disabled or died from an injury incurred during a period of INACDUTRA. 38 C.F.R. § 3.6. As diabetes mellitus is a disease and not an injury, it must be shown that such a condition either began during or was otherwise caused by a period of active duty or ACDUTRA. See 38 U.S.C. § 101(24). The record does not reflect that the Veteran was on active duty during the relevant time period, thus the claim must be based on a period of ACDUTRA. The Board finds that it is necessary to determine whether the Veteran was serving on ACDUTRA or INACDUTRA at the time he was diagnosed with diabetes mellitus, type II. While the record contains National Guard retirement points statements, these reports are imprecise for ascertaining specific periods of ACDUTRA or INACDUTRA. As the Board cannot make this determination based on the evidence currently in the claims file, a remand is warranted so that the AOJ may attempt to confirm the Veteran's actual periods of ACDUTRA and INACDUTRA service. Further, the Board notes that there has been no medical opinion rendered as to whether the Veteran's diabetes mellitus was incurred during a period of active duty or ACDUTRA. Therefore, on remand, after verification of the Veteran's periods of ACDUTRA and INACDUTRA, a VA medical opinion is warranted to ascertain whether the Veteran's diabetes mellitus, type II, was incurred during active duty or a period of ACDUTRA. Finally, the Board notes that additional VA medical records and SSA records have been associated with the claims file since the June 2014 SOC. Although the Veteran's substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the National Personnel Records Center (NPRC), the Defense Finance and Accounting Service (DFAS), or any other appropriate source verify all periods of ACDUTRA or INACDUTRA with the Florida National Guard. Reports of retirement points do not provide sufficient information to satisfy the requirements of this remand order. A listing of dates of service and whether within those dates the service can be characterized as active, ACDUTRA, or INACDUTRA, is required. 2. After the above development had been completed, refer the case to an appropriate VA examiner for review of the record and a medical opinion. The entire file must be reviewed by the examiner and all periods of ACDUTRA and INACDUTRA service must be provided to the examiner. A comprehensive clinical history should be recited, to include a discussion of the Veteran's documented medical history. After a thorough review of the evidence, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's diabetes mellitus, type II, manifested during active duty service (March 1976 to November 1985) or during a period of ACDUTRA. A complete rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) considering all evidence placed in the claims file since the issuance of the June 2014 SOC and return the case to the Board. 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. §§ 5109B, 7112 (2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).