Citation Nr: 1815877 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 16-51 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to October 1967, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). In this case, the Veteran's VA treatment records indicate that he receives treatment for his diabetes mellitus from a private endocrinologist. These records are not associated with the file, nor have any efforts been made to obtain them. As such, the issue must be remanded so that the Veteran may be contacted and asked to either submit or authorize for release any outstanding private treatment records pertaining to his diabetes mellitus. While on remand, any additional outstanding VA treatment records should be obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4) (2017). In this case, the Veteran was provided with a VA examination in October 2014. The examiner diagnosed the Veteran with diabetes mellitus of an unknown type, and proceeded to state that due to the lack of evidence in the file, an opinion could not be provided. The examiner additionally noted that according to the Veteran he became diabetic following a 2003 liver transplant. As the examiner did not provide a definitive diagnosis and could not provide an opinion due to the lack of evidence in the file, this examination is of no probative value. In response to the examination, in January 2015 the Veteran submitted a disability benefits questionnaire, signed by a private physician in December 2013. The questionnaire provided a diagnosis of type II diabetes mellitus, but provided no further information. The Veteran also submitted lab reports spanning the period from January 1999 to July 2002 which reflect elevated glucose readings prior to his 2003 liver transplant. VA treatment records from October 2014 forward were associated with the file in August 2016. These records include numerous diabetes consultations, all of which note that the Veteran has type I diabetes mellitus, not type II. However, an October 2014 record also notes that the Veteran's diabetes might have pre-existed the liver transplant. Thus, the evidence of record at present is currently in conflict as to the type of diabetes the Veteran has, as well as the cause of the Veteran's diabetes. Based on the above, the Board finds that it must remand the claim in order to determine whether the Veteran has type I or type II diabetes mellitus, and whether the Veteran's type I or type II diabetes is related to his active service or to the intervening 2003 liver transplant. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any further outstanding VA treatment records. 2. Contact the Veteran and request that he either submit or authorize for release any outstanding private treatment records concerning his diabetes mellitus. Then, make appropriate efforts to obtain all records so authorized for release. If the records cannot be located or do not exist, the Veteran should be notified and given the opportunity to provide them. 3. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus. The examiner should answer the following questions: a) Does the Veteran currently have type I or type II diabetes mellitus? All testing deemed necessary to confirm a diagnosis should be conducted. If type I diabetes mellitus is diagnosed, if possible the examiner should reconcile this finding with the December 2013 disability benefits questionnaire noting type II diabetes mellitus. b) If type I diabetes mellitus is diagnosed, is it at least as likely as not (a fifty percent probability or greater) that the disability is related to the Veteran's active service, to include his presumed herbicide agent exposure? c) If type II diabetes mellitus is present, does the evidence of record show that an intercurrent injury or disease, specifically the Veteran's 2003 liver transplant, caused the type II diabetes mellitus? In answering this question, the examiner should address (1) the October 2014 VA opinion noting an intervening 2003 liver transplant following separation from service and that the Veteran reported becoming diabetic thereafter, (2) an October 2014 VA treatment record noting diabetes might have pre-existed the 2003 liver transplant, and (3) lab reports from January 1999 to July 2002 noting elevated glucose levels. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period in which to respond. 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 (2012). _________________________________________________ KRISTY L. ZADORA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).