Citation Nr: 21021439 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-06 346 DATE: April 13, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type I, is remanded. Entitlement to service connection for a bilateral eye disorder, to include as secondary to diabetes mellitus, type I, is remanded. Entitlement to service connection for a bilateral foot disorder, to include as secondary to diabetes mellitus, type I, is remanded. Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. Entitlement to an earlier effective date for the grant of bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to November 1984. This matter was previously before the Board in June 2015, wherein the Board remanded the claims for a VA examination. In December 2017, the Board granted service connection for bilateral hearing loss and denied service connection for diabetes mellitus, type I, bilateral eye disorder, and a bilateral foot disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded, in part, the December 2017 decision back to the Board. The Court noted that the portion of the Board’s December 2017 decision that granted entitlement to service connection for bilateral hearing loss was favorable to the Veteran and should not be disturbed on appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and January 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a June 2014 hearing. A transcript of the hearing is associated with the Veteran’s claim file. Pursuant to the December 2019 JMR, the Court found that vacatur and remand was warranted because the Board did not provide the Veteran with a new Board hearing. The Court stated that the Board had previously remanded the case in June 2015 and subsequently, the Veteran requested a new hearing before the Board by way of December 2016 and February 2017 correspondence. As such, a remand was warranted for the Board to provide the Veteran with a new Board hearing. In this regard, the Veteran was afforded another Board hearing with the undersigned in January 2021. A transcript of that hearing is also associated with the Veteran’s claim file. The Board acknowledges that the Veteran has a separate appeal for entitlement to service connection for basal cell cancer of the ear and nose. This appeal is being processed under the Appeals Modernization Act (AMA) and will be addressed in a separate decision. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for diabetes mellitus, type I The Veteran asserts that his diabetes mellitus, type I had an onset during service and that he experienced increased thirst, urinary frequency, and was unable to gain weight. The December 2017 Board decision denied entitlement to service connection for diabetes mellitus, type I because it found that based on the December 2016 medical opinion, the onset of the condition had a different onset than diabetes mellitus, type II in that while diabetes mellitus, type II had a gradual onset that could span more than a decade, diabetes mellitus, type I has an acute (immediate) onset. The VA examiner stated that as soon as there was damage to the pancreas, symptoms manifested immediately and required permanent immediate treatment with insulin and that damage was usually caused by an autoimmune attack or viral attack of the islets of Langerhans. The Board notes that the December 2019 JMR did not find that the December 2017 denial of service connection for diabetes mellitus, type I was erroneous and that the basis of the vacatur and remand was to provide the Veteran with an additional Board hearing. However, during the January 2021 Board hearing, the Veteran brought up theories of entitlement that he wished to further pursue. At the January 2021 Board hearing, the Veteran stated that during his basic training at Fort McClellan, Alabama, he was exposed to various toxins such as PCPs, mace, tear gas, mustard gas, white phosphorus, cobalt, uranium, plutonium, Agent Orange, nerve agent, and blister agent. See January 2021 Board hearing testimony at pgs. 14-15. Conversely, the Veteran had previously denied being exposed to any toxic hazards at his previous Board hearing in June 2014. See June 2014 Board hearing testimony at pg. 10. The undersigned encouraged the Veteran to submit evidence that he was exposed to such toxins at the January 2021 hearing. To date, the Board has not received any information from the Veteran regarding his potential exposures during basic training. The Veteran also testified that he was stationed in Germany in 1982 at Miesau Army Depot, which was a nuclear warhead site for missiles. The Veteran’s service personnel records confirm that he had service in Germany from February 1982 to August 1983. He stated that he was required to transport nuclear warheads around Europe from one base to another in a Chinook CH-17. The Veteran acknowledged that he never had badges, but he that he was exposed to radiation as he had to guard the front bunkers of nuclear warheads while they were being working on. See January 2021 Board hearing testimony at pgs. 16-17. An August 2014 private medical opinion from Dr. F.G. indicated that the islet cells concentrated in the tail of the pancreas are sensitive to radiation and thus that is it possible that the Veteran’s diabetes could be attributed to possible radiation exposure. Service connection for a disorder resulting from radiation exposure during service can be established in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). The first avenue of recovery applies to "radiation-exposed" veterans who participated in a radiation-risk activity and develop a disability listed under 38 C.F.R. § 3.309 (d). The second avenue of recovery applies to ionizing-radiation-exposed veterans who develop a "radiogenic" disease listed under 38 C.F.R. § 3.311 (b)(2) after service. Diabetes mellitus, type I is not a listed disorder under either regulation. The first and second avenues of recovery are not available to this Veteran. Further, the Veteran has not submitted any evidence indicating that his diabetes is a "radiogenic" disease. See also 38 U.S.C. § 1112(c). Nevertheless, service connection may be established on a direct basis under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, on remand, the RO must determine whether the Veteran was exposed to ionizing radiation during his service as he may establish his entitlement to service connection on a direct-causation basis pursuant to Combee. 2. Entitlement to service connection for a bilateral eye disorder, to include as secondary to diabetes mellitus, type I 3. Entitlement to service connection for a bilateral foot disorder, to include as secondary to diabetes mellitus, type I The Veteran contends that his bilateral eye and foot disorders are secondary disabilities related to his diabetes mellitus, type I. The issues of entitlement to service connection for a bilateral eye disorder and a bilateral foot disorders is inextricably intertwined with the appeal for service connection for diabetes mellitus, type I being remanded, and thus the Board will defer consideration of the appeal with regard to these two issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 4. Entitlement to an initial compensable evaluation for bilateral hearing loss The Veteran contends that his bilateral hearing loss warrants a higher evaluation than that as currently assigned. In December 2020, the Veteran’s attorney submitted correspondence that she essentially disagrees with the competency of the VA examiner to which the RO relied upon for a compensation and pension examination. She requested the examiner’s CV showing, at least, the examiner’s education, training, experience, and any discipline imposed by the VA or by any licensing board. A review of the record shows that the last VA examination that the Veteran underwent occurred in August 2020 in conjunction with the claim for an increased rating for bilateral hearing loss. The RO issued a supplemental statement of the case (SSOC) in August 2020 denying entitlement to a compensable rating. In a recent decision, the Federal Circuit held that once a Veteran raises a challenge to the competency of the medical examiner, VA must satisfy its burden of persuasion as to the examiner's qualifications. Also, because the Veteran is obligated to raise the issue in the first instance, he must have the ability to secure from VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, a Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. The Federal Circuit indicated that this right is mandated by the VA's duty to assist. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Thus, given the Veteran’s representative has requested this information in this case, a further remand is necessary to provide the Veteran the August 2020 VA audiologist’s curriculum vitae/credentials. 5. Entitlement to an earlier effective date for the grant of bilateral hearing loss The Veteran contends that he is entitled to an earlier effective date for the grant of his bilateral hearing loss. See February 2018 Notice of Disagreement. The RO has not issued a statement of the case (SOC) with respect to the claim for an earlier effective date for the grant of bilateral hearing loss. As such, a remand is necessary for the issuance of a SOC and the Veteran should be afforded an opportunity to submit a substantive appeal to this issue. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Obtain VA treatment records from February 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the conditions on appeal. He should provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 3. Ask the Veteran to submit any information that he was exposed to hazardous toxins to include PCPs, mace, tear gas, mustard gas, white phosphorus, cobalt, uranium, plutonium, Agent Orange, nerve agent, and blister agent. The RO should conduct any necessary development regarding the Veteran’s exposure to such toxins. All relevant requests and responses must be documented in the claims file. If any records are unavailable the Veteran must be notified of the RO's inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 4. Undertake appropriate development to obtain any additional service records that may further document the Veteran's exposure to ionizing radiation, to include obtaining the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). All relevant requests and responses must be documented in the claims file. If any records are unavailable the Veteran must be notified of the RO's inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 5. If it is determined by the RO that the Veteran was exposed to ionizing radiation and/or environmental toxins, schedule the Veteran for a VA examination to address the claims for diabetes mellitus, type 1, bilateral eye condition, and bilateral foot condition. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is requested to provide the following opinion: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus, type I is caused by or related to the Veteran's service and/or events therein, to specifically include his exposure to ionizing radiation in service and/or environmental toxins? b) It is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral eye condition and bilateral foot condition was caused or aggravated by, or a result of the diabetes mellitus, type I? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. In providing the rationale, the examiner should not rely on the fact that diabetes mellitus, type I is not a presumptive condition associated with ionizing radiation. The examiner must address the Veteran’s contentions that while on active duty, he experienced an increase in thirst, urinary frequency, and was unable to maintain his weight. The examiner must also address the August 2014 private medical opinion from Dr. F.G. that suggests the Veteran’s diabetes could be related to environmental exposures, to include radiation. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 5. To the extent possible, request the credentials of the August 2020 VA audio examiner and provide them, as allowed by law, to the Veteran and his counsel. 6. Provide the Veteran and his counsel with a statement of the case addressing the claim for an earlier effective date for the grant of bilateral hearing loss. The Veteran is reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.