Citation Nr: 21021266 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 08-36 958 DATE: April 12, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II (DMII) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 12, 2019 is remanded. Entitlement to service connection for erectile dysfunction (ED) secondary to the DMII also is remanded. FINDING OF FACT The Veteran’s DMII as likely as not manifested to a compensable degree within a year of his separation from service and is not attributable to any intercurrent cause.   CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for his DMII as presumptively related to his service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1984 and from June 1987 to July 1999. The Veteran testified in support of these and other claims during a hearing in March 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. This case was previously before the Board in July 2017 (ED claim), August 2019, and December 2020. Each time, however, these claims were remanded back to the local Regional Office (RO) for necessary further development and consideration –including to obtain all outstanding treatment records relevant to these claims and for a medical opinion concerning the origins of the Veteran’s DMII in relation to his military service and to determine whether his ED is a complication of, so secondary to, his DMII. The remand instructions pertaining to his DMII claim since have been completed, as directed, but not concerning his claim for ED. Consequently, the Board must again remand his claim for ED, also his claim for a TDIU as of an earlier effective date since the Board is granting his claim for DMII in this decision and this may, in turn, impact the disposition of his TDIU claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Service Connection Entitlement to service connection for DMII The Veteran contends that his DMII onset within one year of his separation from service so must be presumed to have incepted during his service. Certain “chronic” diseases, including DMII, will be presumed to have been incurred in service if they were shown as chronic in service; or, if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within the one-year presumptive grace period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has the required current diagnosis of DMII since confirmed during his recent January 2021 VA compensation examination. Moreover, as indicated, DMII is a presumptive disease according to 38 C.F.R. § 3.309(a). The Veteran’s DD Form 214 shows that his latter period of active service was until July 31, 1999. A post-service treatment record dated July 6, 2000 shows that he had a blood test and the results were consistent with DMII, as the January 2021 VA compensation examiner confirmed. For DMII to be compensable, at minimum it must require management by a restricted diet. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The July 2000 blood test results do not show whether the Veteran was directed to try and manage his suspected DMII in this way or, for that matter, that any modality of treatment was prescribed or recommended. However, during his March 2019 hearing before this Board, the Veteran testified under oath that he has managed his DMII since that initial time of suspicion he had this disease by restricting his diet. And he is competent to make proclamations regarding factual matters of which he has first-hand knowledge, so including managing his DMII by restricted diet since July 2000. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As a “chronic” disease, per se, according to VA regulation, any subsequent manifestations of this same disease are service connected unless attributable to an intervening (“intercurrent”) cause. No intercurrent cause has been identified in this instance. Therefore, at the very least, it is as likely as not, if not more likely than not, the Veteran’s DMII presumptively started during his service since it manifested to the required compensable degree within a year of his discharge from service. Thus, this claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for ED secondary to the DMII is again remanded. The prior July 2017 Board remand directed the RO to have the Veteran undergo a VA examination to address whether his ED is directly related to his military service or secondarily related, meaning caused or aggravated by any service-connected disability. At the time of that remand, he had not established his entitlement to service connection for his DMII and, in any event, the record does not reflect that any such VA examination occurred prior to returning this claim to the Board. During his subsequent March 2019 hearing before this Board, the Veteran testified that he was unsure whether his ED was caused by his DMII, but that his private neurologist, Dr. S, had attributed the ED to the DMII. Therefore, in the additional August 2019 remand, the Board directed the RO to have the Veteran undergo this needed VA examination concerning his DMII and ED, including for an opinion as to whether his ED is secondary to his DMII. In January 2020, to this end, the Veteran underwent this needed VA examination for his DMII and ED, but the examiner determined the Veteran did not have a then current diagnosis of DMII and, therefore, any ED was not secondary to DMII. But, in February 2020, the Veteran submitted private treatment records from Dr. S. And these records show Dr. S. had treated the Veteran for both DMII and ED, however, these records did not attribute the ED to the DMII. Consequently, the Board again remanded this claim in December 2020 for the needed medical comment concerning this posited correlation between these two conditions. And, in January 2021, a VA compensation examiner reviewed the file and provided an addendum opinion confirming – as already discussed, the Veteran has DMII that onset within one year of his service. As importantly, however, this examiner did not also provide any opinion concerning the Veteran’s DMII caused or is aggravating his ED. This additional medical comment especially is still needed since, as a result of this decision, the Veteran’s DMII is now considered to be a service-connected disability. Thus, there is now the possible pathway to also link his ED to his service (i.e., show that it, too, is a service-connected disability) if confirmed to be caused or aggravated by, so a complication of, his DMII. 2. Entitlement to a TDIU prior to March 12, 2019 also is remanded. In November 2012, the Veteran filed a claim of entitlement to a TDIU based on his then service-connected disabilities. A TDIU subsequently was granted, but only instead from March 12, 2019 onward, so the period prior to that is still at issue. And, for the reasons and bases already mentioned, service connection for his DMII is being granted in this decision. Thus, depending on the initial rating and effective date assigned for this now service-connected disability, it may factor into whether a TDIU was warranted as of an earlier effective date. Consequently, the RO must assign an initial rating and effective date for this now service-connected disability and determine whether there is any consequent impact on the claim for a TDIU prior to March 12, 2019. Accordingly, these claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran if unable to obtain any additional records that he identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s ED is (i) caused OR (ii) aggravated by his service-connected DMII or any other service-connected disability, including medication taken for them. The examiner must be certain to address both proximate cause AND aggravation. 3. After assigning an initial rating and effective date for the Veteran’s now service connected DMII, readjudicate his derivative claim for a TDIU prior to March 12, 2019. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.