Citation Nr: 21004982 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 11-10 919A DATE: January 28, 2021 ORDER The July 20, 2020 Board decision, dismissing the issues of entitlement to service connection for diabetes mellitus type II and for diabetic neuropathy, is vacated. Entitlement to service connection for diabetes mellitus type II, to include as secondary to exposure to herbicide agents is granted. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to diabetes, is granted. Entitlement to service connection for peripheral neuropathy of the upper extremities, secondary to diabetes, is denied. Entitlement to service connection for erectile disfunction, secondary to diabetes, is granted. FINDINGS OF FACT 1. The July 2020 Board decision is vacated. 2. Resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise as to whether his diabetes is type II and thus, subject to presumptive service connection. 3. The Veteran’s peripheral neuropathy of the lower extremities is secondary to the Veteran’s diabetes. 4. The Veteran does not have a current diagnosis of peripheral neuropathy of the upper extremities. 5. The Veteran’s erectile disfunction is secondary to his diabetes. CONCLUSIONS OF LAW 1. The criteria for vacatur of the July 20, 2020 Board decision which dismissed the issues of service connection for diabetes mellitus type II and neuropathy, are met. 38 U.S.C. § 7104; 38 C.R.F. § 20.904. 2. The criteria for entitlement to service connection for diabetes mellitus type II, on a presumptive basis, are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309 3. The criteria for entitlement to service connection for peripheral neuropathy of the lower extremities, as secondary to diabetes mellitus, are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the upper extremities, as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for erectile disfunction, as secondary to diabetes mellitus, are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to February 1969. This matter comes before the Board of Veteran’s Appeals (Board) from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2016 when the claims were remanded for further development. The Board finds the March 2016 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in the Veteran’s notice of disagreement, received by VA in September 2008, the Veteran included a claim of service connection for hypertension, as secondary to his diabetes. He also included hypertension, as a condition secondary to his diabetes in the Form 9, dated April 2011. The original claim of service connection for diabetes on appeal, did not include a claim of service connection for hypertension. The RO has not addressed this claim. Thus, the Board does not have jurisdiction over the claim of service connection for hypertension, as secondary to diabetes. 1. Vacatur of the July 2020 Board decision. The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board’s own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. In the present case, the Board is vacating the previous appellate decision on its own motion. In its July 2020 decision, the Board dismissed the issues of service connection for diabetes mellitus type II and neuropathy based on an erroneous reading of the record; as the Board erroneously relied on a January 2018 rating decision that appeared to grant service connection for the claimed conditions. However, the January 2018 rating decision had not been promulgated at the time of the Board’s decision and the issues remained on appellate status. Accordingly, the Board finds the criteria for vacatur of the July 2020 Board decision have been met. 2. Entitlement to service connection for diabetes mellitus type II, to include as secondary to exposure to herbicide agents The Veteran seeks service connection for his diabetes, as due to his exposure to herbicide agents while serving in the Republic of Vietnam. The Veteran’s DD214 shows he is a recipient of the Vietnam Service Medal. Accordingly, the presumptions discussed below apply to the Veteran’s claim. Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A Veteran who, during military service, served “in-country” in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.30 (a)(6)(iii). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Type II diabetes is listed under 38 C.F.R. § 3.309 (e) as a disability presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). The Board notes that affirmative evidence is required to rebut the presumptions noted above. See 38 U.S.C. §§ 1113. In the present case however, the Board finds that there is not sufficient affirmative evidence with sound medical reasoning that considers the totality of the evidence of record to rebut the presumption. Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s medical records have been associated with the claims file. These show the Veteran has a current diagnosis of diabetes and he is prescribed insulin. See medical records. The issue before the Board is whether the evidence of record supports the finding that the Veteran’s diabetes is type II and thus, subject to presumptive service connection, as mentioned above. For the reasons detailed below, the Board finds that service connection for diabetes type II, on a presumptive basis is warranted. Medical records show that the Veteran was prescribed glucose in January 1992, prior to a Whipple procedure in March 1992. See medical records dated January 1992, associated with the claims file in November 2008. Medical records contemporaneous to the Veteran’s Whipple procedure of 1992 contain a letter from the Veteran’s physician dated March 1992 noting that no evidence of insufficiency nor glucose intolerance had been noted, following the procedure where part of the Veteran’s pancreas was removed. See letter by Dr. I, dated March 1992, associated with the claims file in January 2009. In May 1992, the same physician subscribed a follow up letter where he noted the Veteran continued to show no evidence of pancreatic insufficiency. See letter of May 1992 by Dr. I, associated with the claims file in January 2009. Medical records also show the Veteran reported to his doctors that he thought he had diabetes in November 1992 due to symptoms such as extreme thirst, weight loss, and feeling close to blacking out at times. See medical records for November 1992, associated with the claims file in November 2008. That same month, the Veteran was started on Humulin, a diabetic medication. See medical records for November 1992, associated with the claims file in November 2008. In January 2008, the Veteran underwent a VA examination for his diabetes. The examiner noted that the Veteran underwent a Whipple procedure for pancreatitis in 1991 and developed diabetes requiring insulin. The examiner further commented that the Veteran’s diabetes was type I, which is characterized as the destruction of the pancreatic beta cells, leading to absolute insulin deficiency, as defined. See VA examination of January 2008. The examiner did not offer a complete rationale as to how he had arrived at that conclusion, nor did he opine as to the etiology of the Veteran’s diabetes and whether it was related to his service. Accordingly, this examination is of no probative value. Furthermore, the Board notes the date of the Veteran’s Whipple procedure is March 1992 and not 1991; thus, this opinion is based on an inaccurate factual premise. In October 2008, the Veteran’s private physician, Dr. P, subscribed a medical opinion where he noted the Veteran underwent a Whipple procedure in March 1992, involving a partial pancreatectomy. The physician noted that the residual pancreas controlled the Veteran’s blood sugars. However, in November 1992, the Veteran was diagnosed with diabetes and was started on insulin. The physician opined that the Veteran’s partial pancreatectomy did not cause his diabetes. See medical opinion by Dr. P dated October 2008. The examiner did not specify the Veteran’s type of diabetes; whether type I or type II. In December 2008, the Veteran’s private physician Dr. R, subscribed a medical opinion where he noted that in 1991, the Veteran was advised to follow a diabetic diet to lose weight and to increase exercise as a glucose tolerance test revealed a fasting blood sugar of over 149 mg, with no glycosuria. The physician noted that since the Whipple procedure of 1992, the Veteran’s diabetes had necessitated a more aggressive treatment involving insulin, an oral agent and a restricted diet. This physician also diagnosed the Veteran with peripheral neuropathy of all extremities and erectile disfunction, secondary to his diabetes. See medical opinion by Dr. R, dated December 2008. In February 2009, a letter by Dr. P dated December 2008 was associated with the claims file. In this letter, the physician noted he had reviewed the medical opinion by Dr. R of December 2008 and that he agreed with it. He also noted that the Veteran was started on insulin only because his blood sugars were so high and that he never displayed any evidence of ketosis or diabetic ketoacidosis. The physician reasoned that if the Veteran had diabetes type I, some level of ketoacidosis would be expected. Thus, the physician opined that in the absence of ketoacidosis; the Veteran’s diabetes was type II. See letter by Dr. P, dated December 2008 and associated with the claims file in February 2009. In March 2011, a medical opinion by a VA examiner was associated with the claims file. The Veteran’s records were reviewed by the examiner. The examiner noted the Veteran’s medical history, specifically how in March 1992 the Veteran underwent a Whipple procedure following the discovery of a mass at the head of the pancreas. The examiner noted that following the procedure the Veteran was noted to have elevated glucose levels in June 1992 and was placed on insulin. Following a review of the pertinent records, the examiner opined that the Veteran’s diabetes was less likely than not caused by exposure to an herbicide agent during service. In favor of his opinion, the examiner reasoned that it is well known in the medical community that Whipple procedures can cause diabetes which is usually insulin requiring. The examiner opined that the removal of the head of the pancreas would more likely than not result in insulin deficiency and that chronic pancreatitis increased the percent risk of damage to the pancreas. The examiner noted that the Veteran’s medical records did not show the Veteran had been treated with an oral agent for diabetes prior to his Whipple procedure. Furthermore, the examiner opined that the short interval between surgery and insulin treatment did not prove insulin resistance as there was enough insulin circulating post operatively, until the reserve was depleted. Additionally, the examiner noted that in 1997 the terms diabetes type I and diabetes type II were introduced by an ADA expert committee, recommending against the use of the terms used at the time, in an attempt to classify diabetes based on etiologic differences. Type I diabetes was characterized by the destruction of the pancreatic beta cells, leading to absolute insulin deficiency. Type II was characterized by variable degrees of insulin deficiency and resistance. The examiner further opined that the Veteran’s diabetes was caused by pancreatic disease and thus the Veteran did not have either diabetes type I or type II. See VA medical opinion of March 2011 which appears associated with the claim record in February 2011. The Board notes that although the Veteran’s medical records do support the finding of elevated blood glucose in June 1992, the same medical records do not clearly show the Veteran was prescribed insulin as a result. See medical records associated with the claims file in January 2009. In March 2016, the Board found all the evidence of record to be inadequate for adjudication and remanded the matter for medical clarification. See March 2016 Board decision. In May 2016, a medical opinion by Dr. P dated December 2008, was associated with the claims file. In this opinion, Dr. P noted he had been the Veteran’s physician since 1992, that the Veteran’s diabetes was initially controlled with oral agents and that accordingly, his diabetes was type II. See medical opinion dated December 2008, associated with the claims file in May 2016. In July 2016, the Veteran was administered a Diabetes Mellitus Disability Benefits Questionnaire (Diabetes DBQ). In this examination, the Veteran was noted to have diabetes type II with neuropathy and erectile disfunction. Following this examination, the examiner opined that the Veteran’s diabetes was at least as likely as not related to service as the Veteran had service in Vietnam and diabetes was a condition presumed to be associated with exposure to herbicide agents. See medical opinion dated July 2016. In September 2017, a VA addendum opinion was associated with the claims file. In this opinion, the examiner noted the Veteran had been diagnosed with diabetes type II in 1991 according to the records available. The examiner further noted that diabetes type I is not service connected because the presumed connection is between diabetes type II and exposure to agent orange. See addendum opinion dated September 2017. Another VA addendum opinion dated September 2017 clarified that the Veteran’s diabetes type II diagnosis was made in November 1992. The examiner further noted that he agreed with the diagnosis of diabetes type II as the Veteran’s diabetes had responded to oral agents and that although he understood the arguments made regarding how the Veteran’s diabetes was a result of his pancreatic disease, it was still his opinion that it was at least as likely as not that the Veteran’s diabetes type II started in 1992. See addendum opinion dated September 2017. In March 2019, a third VA addendum opinion was associated with the claims file. The same examiner that subscribed the previous addendum opinions opined that upon further review of the available medical records he found no documentation regarding how the Veteran had been on diabetic medication prior to his Whipple procedure. Accordingly, the examiner opined that the Veteran’s diabetes was at least as likely as not related to pancreatic disease and the Whipple procedure. He also opined that the Veteran was insulin dependent and his diabetes was more like type I than type II. See addendum opinion dated March 2019. The Board finds this medical opinion inadequate as it does not address the findings of the Veteran’s physicians contained in the record regarding how months immediately following his Whipple procedure no pancreatic insufficiencies, nor any glucose issues had been found. Furthermore, the examiner did not address in his opinion that the Veteran had been prescribed glucose in January 1992, prior to his Whipple procedure. Finally, the Board finds this medical opinion inadequate as it does not provide a complete rationale for the finding that the Veteran’s diabetes is more like type I than type II. Accordingly, the Board assigns this medical opinion low probative value. As previously noted, the issue before the Board is whether medical evidence supports the finding that the Veteran’s diabetes is type II. The Board finds that there are medical opinions in favor and against the finding that the Veteran’s diabetes is type II. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diabetes is type II diabetes. Resolving doubt in the Veteran’s favor, the Board finds that service connection for diabetes type II is warranted on a presumptive basis, as the Veteran served in the Republic of Vietnam during the applicable period. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to diabetes Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the most recent Diabetes DBQ, dated July 2016; the Veteran was diagnosed with peripheral neuropathy of the lower extremities, secondary to his diabetes. See Diabetes DBQ of July 2016 and Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (Neuropathy DBQ) of July 2016. As the Veteran’s diabetes has been awarded service connection; the Board finds that service connection on a secondary basis for the Veteran’s peripheral neuropathy of the lower extremities is also warranted. 4. Entitlement to service connection for peripheral neuropathy of the upper extremities, secondary to diabetes The Veteran’s original claim of service connection for diabetes, included a claim of service connection for neuropathy of the bilateral upper extremities as secondary to his diabetes diagnosis. See Statement in Support of Claim dated November 2007. The Board has revised the existing medical records and finds that service connection for peripheral neuropathy of the bilateral upper extremities is not warranted as the Veteran’s medical records do not support the finding that the Veteran has a current diagnosis of peripheral neuropathy of the upper extremities. The Board notes that the medical opinion by Dr. R, dated December 2008, noted the Veteran reported loss of sensation in his hands. Based on that report, Dr. R diagnosed the Veteran with peripheral neuropathy, secondary to his diabetes. See medical opinion by Dr. R, dated December 2008. The Board found this medical opinion inadequate in its March 2016 remand. Furthermore, in the Neuropathy DBQ of July 2016, the Veteran only reported symptomatology associated with his bilateral lower extremities. Additionally, the examiner determined that the Veteran did not have peripheral neuropathy of the upper extremities. See Neuropathy DBQ of July 2016. The Board finds this medical opinion adequate and assigns it high probative value. Existing medical records also show the Veteran’s neuropathy is usually characterized in terms of his lower extremities. See medical records for October 2016. The Board notes that besides the medical opinion by Dr. R, the Board has not found medical evidence supporting a diagnosis of peripheral neuropathy of the upper extremities. Thus, although the Veteran has been awarded service connection for his diabetes by virtue of this decision. The Board finds that service connection for neuropathy of the upper extremities is not warranted as the medical evidence of record does not support the finding that the Veteran has a current diagnosis of peripheral neuropathy of the upper extremities. 5. Entitlement to service connection for erectile disfunction, secondary to diabetes The Veteran’s original claim of service connection for diabetes, included a claim of service connection for erectile dysfunction, as secondary to diabetes. See Statement in Support of Claim dated November 2007. (Continued on the next page)   In July 2016, the Veteran was administered a Male Reproductive System Disability Benefits Questionnaire (Reproductive DBQ). In this DBQ, the examiner noted that the Veteran had erectile disfunction. The examiner noted the etiology of the condition as “diabetes”. In the Diabetes DBQ of July 2016, the examiner also noted the Veteran’s erectile dysfunction as secondary to his diabetes. See Diabetes DBQ of July 2016. Thus, as the Veteran has a diagnosis of erectile dysfunction and it has been noted to be etiologically related to his diabetes, the Board finds that service connection for erectile disfunction, on a secondary basis is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.