Citation Nr: 0534995 Decision Date: 12/29/05 Archive Date: 01/10/06 DOCKET NO. 03-14 100 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for prostatitis. 2. Entitlement to service connection for diabetes mellitus, claimed as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Senior Counsel INTRODUCTION The veteran served on active duty from August 1954 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from two separate RO decisions. The procedural posture of this case is somewhat confusing and takes some explanation. In a March 1995 rating decision, the RO denied the veteran's original claim of service connection for prostatitis; notice of that decision was mailed to the veteran on March 3, 1995. In correspondence received at the RO later that month, the veteran referred to the March 3 notice and detailed several points of disagreement with the March 1995 rating decision. The Board finds that sufficient to be a notice of disagreement (NOD). See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (1995); 38 C.F.R. § 20.201 (2005). The RO did not act upon that NOD. In March 2001, the veteran submitted a new claim of service connection for prostatitis. In an April 2002 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for prostatitis. The veteran submitted an NOD in May 2002. The RO issued a statement of the case (SOC) in April 2003 and the veteran perfected his appeal in May 2003. Given that the veteran submitted a timely NOD to the March 1995 rating decision and a timely Substantive Appeal in connection with the April 2003 SOC, the Board finds that the claim of service connection for prostatitis will be considered on the merits, despite how the RO characterized the issue. Cf., Barnett v. Brown, 83 F.3d 1380 (Fed.Cir. 1996). (The Board is required to decide preliminarily whether new and material evidence has been received to reopen a claim before addressing the merits; what the RO may have determined in this regard is irrelevant). The veteran has also perfected an appeal from a July 2003 decision of the RO which denied a claim of service connection for diabetes mellitus. In June 2005, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. At the June 2005 hearing, the veteran submitted additional evidence and waived review of the evidence by the RO. 38 C.F.R. § 20.1304. The issue of entitlement to service connection for prostatitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence reasonably shows that the veteran, who has a current diagnosis of diabetes mellitus, was in the Republic of Vietnam during active service. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection for diabetes mellitus may be granted when such disorder is manifest to a compensable degree within one year of separation from service. 38 C.F.R. § 3.307. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who served in the Republic of Vietnam during active service between January 9, 1962 and May 7, 1975 will be presumed to have been exposed, during such service, to an herbicide agent. See 38 C.F.R. § 3.307 (a)(6)(iii). Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes) shall be service connected if a veteran was exposed to an herbicide agent during service, and the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service medical records do not reflect complaints, findings or treatment associated with diabetes mellitus. Service personnel records do not show that the veteran served in the Republic of Vietnam and he does not contend otherwise. Rather, he maintains that he landed in Vietnam while in transit to Thailand. At the June 2005 hearing, he testified about the circumstances of his time spent in Vietnam. In support of his claim, he submitted a statement from his wife who recalled that he telephoned her while in transit to Thailand to tell her he had landed in Vietnam. Post-service medical records include a February 2004 letter from the veteran's private physician noting that he is being followed for multiple medical conditions, including diabetes mellitus. The veteran has a current diagnosis of diabetes mellitus. The Board finds the veteran's testimony about his time spent in Vietnam and his wife's statement regarding her recollection of that time to be credible. Accordingly, there is a basis to find that the veteran did have a brief period of service in Vietnam. Resolving all doubt in favor of the veteran, service connection for diabetes mellitus is granted on a presumptive basis due to Agent Orange exposure. Finally, the Board must consider whether VA has satisfied all duties to notify and assist the appellant with respect to the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with the issue of service connection for diabetes mellitus given the favorable nature of the Board's decision herein. ORDER Service connection for diabetes mellitus is granted. REMAND After a review of the claims folder, the Board finds that additional development is required prior to appellate consideration of the claim of service connection for prostatitis. Service medical records include a notation on the March 1974 separation examination that the veteran had acute prostatitis one year prior, no complications. Post- service medical records include a September 1977 private treatment record noting a diagnosis of acute prostatitis; a similar diagnosis is noted in more recent treatment records. The veteran has asserted in written statements and hearing testimony that he believes his current complaints are related to the in-service prostatitis. VA's duty to assist claimants in obtaining evidence needed to substantiate a claim includes obtaining a medical opinion when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Accordingly, this claim is REMANDED for the following action: 1. The veteran should be afforded an appropriate VA examination to determine the current nature and likely etiology of any diagnosed genitourinary condition, to include prostatitis. All indicated testing in this regard should be performed and the claims folder should be made available to the examiner for review. Based on the examination and review of the case, the examiner is requested to express an opinion as to whether it is at least as likely as not that any demonstrated genitourinary condition is related to service, to include the incident of acute prostatitis. Complete rationale for all opinions expressed must be provided. 2. Thereafter, the RO should again review the veteran's claim. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs