Citation Nr: 21074865 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-25 076 DATE: December 16, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (DMII) is granted. REMANDED Entitlement to service connection for an eye disability is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam. 2. The evidence is at least evenly balanced as to whether the Veteran has a diagnosis of DMII. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for DMII have been met on a presumptive basis. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1965 to November 1967 with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among other things, denied service connection for DMII and diabetic retinopathy. In September 2018, the Veteran filed his notice of disagreement with, among one other thing, the claims for service connection for DMII and diabetic retinopathy, was issued a statement of the case in July 2019, and in August 2019, perfected his appeal to the Board. The Veteran was scheduled to appear at a virtual Board hearing before a Veterans Law Judge on April 2, 2021 which was subsequently rescheduled. However, in April 2021, the Veteran withdrew his request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). In May 2021, the Board, among one other thing, remanded the Veteran's claims for service connection for DMII and the inextricably intertwined issue of service connection for diabetic retinopathy for an addendum opinion to clarify whether the Veteran has a current diagnosis of DMII. In October 2021, the RO continued its denial of the Veteran's claims for service connection for DMII and diabetic retinopathy, notifying the Veteran in a supplemental statement of the case. The Board notes that in February 2020, the Veteran filed a VA Form 10182 notice of disagreement, appealing the issues of entitlement to service connection for a back disability, and entitlement to an increased rating for bilateral hearing loss under the Appeals Modernization Act (AMA). These claims will be addressed in a separate Board decision consistent with the AMA framework as the current claims have been appealed under the legacy system. In a September 2021 statement, the Veteran's representative explained that the Veteran's claim for service connection for DMII should have been granted as presumptively due to exposure to Agent Orange, and failing to grant based on exposure to Agent Orange is clear and unmistakable error (CUE). The agency of original jurisdiction (AOJ) has not adjudicated the issue of CUE raised by the September 2021 statement, and the Board lacks jurisdiction to adjudicate allegations of CUE in decisions of the AOJ in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Therefore, the Board cannot adjudicate that issue. The Veteran may resubmit a motion alleging CUE to the AOJ or notify the AOJ that this issue is still pending, and must resubmit the claim in writing, signed by the Veteran or an authorized representative. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). If a Veteran was exposed to Agent Orange during service, certain listed diseases, including DMII, are presumptively service-connected. 38 U.S.C.A. §§ 1116(a)(1), (2)(H); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). DMII The Veteran's service treatment records do not note any treatment for DMII or symptoms associated with DMII, and his November 1967 medical examination report upon separation from service is normal. The Veteran's personnel records indicate that the Veteran served in the Republic of Vietnam from July 1967 through November 1967. The Veteran's DD-214 reflects that the Veteran is a recipient of the Vietnam Service Medal, and that he had 4 months of foreign service. January 2015 and March 2016 private treatment records indicate that the Veteran had high glucose readings. A March 2018 disability benefits questionnaire (DBQ) indicates that the Veteran has been diagnosed with DMII, and the examiner noted that the Veteran has eye conditions other than diabetic retinopathy that are at least as likely as not due to DMII. A separate March 2018 DBQ reflects that the Veteran has a diagnosis of DMII with hyperglycemia. A May 2018 DBQ reflects that the Veteran does not have an official diagnosis of DMII, but the examiner noted a diagnosis of impaired fasting glucose. The examiner opined that the Veteran did not have a condition that is at least as likely as not (at least a 50 percent probability) due to DMII, or permanently aggravated by DMII. The examiner noted that the Veteran had a diagnosis of macular degeneration in the left eye. In a June 2021 DBQ addendum, the examiner explained that the Veteran did not meet the criteria of hga1c above 6.5, while he met the criteria provided 3 years prior to the examination of having glucose more than 126 in 2015 and 2016 without any evidence of hga1c to confirm a diagnosis. The examiner stated that she was unable to provide an opinion about whether the Veteran has a current diagnosis of DMII as the Veteran does not have a hga1c above 6.5. She recommended a new examination with all available blood test results to clarify previous opinions with available hga1c reports from private doctors in 2015 and 2016, and indicated that she would like recent reports of blood tests to clarify her opinion. In an October 2021 letter, the Veteran's private physician stated that the Veteran is a type 2 diabetic. The Board finds that the evidence is at least evenly balanced as to whether the Veteran has a diagnosis of DMII which was caused by in-service exposure to Agent Orange. While the June 2021 examiner explained why the Veteran did not meet the criteria for a diagnosis of DMII, she was unable to determine whether he has a current diagnosis of DMII, and recommended a new examination with additional blood tests as her addendum opinion was based on a review of the record and not an examination of the Veteran. However, the Veteran's private physician provided a statement indicating that the Veteran had a diagnosis of DMII. While the private physician did not provide an extensive rationale to support his diagnosis, reading his opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's blood test results and his symptomatology made it likely that he suffered from DMII. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The evidence of record also reflects that the Veteran's private physician had previously provided the Veteran with blood tests and had treated the Veteran for at least 5 years. Thus, his opinion as to the diagnosis is afforded significant probative value. At this point, considering the available evidence of record which includes multiple diagnoses of DMII, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is at least evenly balanced as to whether the Veteran has a diagnosis of DMII, and the evidence reflects that he served in Vietnam and is therefore presumed exposed to herbicide agents. He thus meets the criteria for service connection for DMII on a presumptive basis under 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection for DMII is warranted on a presumptive basis. REASONS FOR REMAND Eye Disability As for the Veteran's claim for service connection for diabetic retinopathy, while the evidence of record does not indicate that the Veteran has a diagnosis of diabetic retinopathy, the physician who prepared the March 2018 disability benefits questionnaire indicated that the Veteran has an eye condition that is at least as likely as not (at least a 50 percent probability) due to DMII. He did not, however, identify what that disability was or explain how he reached this conclusion. The Board has thus expanded the issue on appeal to include all eye disabilities, to include diabetic retinopathy, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and finds that a remand is necessary to determine the specific diagnosis and etiology of any eye disability. The matter is thus REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate physician, to include via telehealth if feasible, to determine whether the Veteran has an eye disability, to include diabetic retinopathy. The physician must opine: (a.) Whether any eye disability is at least as likely as not (at least a 50 percent probability) related to an in-service injury, event, or disease; or (b.) Whether any eye disability was at least as likely as not (a 50 percent or greater probability) either (i) caused or (ii) aggravated by the Veteran's DMII. If aggravation is found, the baseline level of disability should be identified to the extent possible. The physician must provide a complete rationale for any opinion requested. The physician is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, Counsel 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED