BVA9501342 DOCKET NO. 92-03 758 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether a rating decision of April 16, 1991, was properly voided. 2. Entitlement to service connection for the cause of the veteran's death. 3. Entitlement to service connection for diabetes mellitus, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from January 1944 to November 1946, and from February 1948 to July 1973. He died in December 1991 at the age of 64 years. This appeal ensues from the veteran's disagreement with a May 1991 rating action denying service connection for diabetes mellitus. The veteran died after submitting his notice of disagreement, and the appellant, who is his widow, filed a claim for service connection for the cause of the veteran's death in December 1991. The claim was denied in January 1992, and the appellant submitted a notice of disagreement with that determination in January 1992, and also claimed entitlement to accrued benefits based on service connection for diabetes mellitus. In connection with her substantive appeal filed in March 1992, the appellant claimed that a rating action of April 16, 1991, which had granted service connection for diabetes mellitus, had been erroneously voided by the rating action of May 10, 1991. The case was initially received at the Board in March 1992, but was remanded by letter because the appellant had requested a hearing. Subsequently, this request was canceled due the appellant's illness, but the additional issue of error in voiding the April 16, 1991, rating decision was denied by rating action of January 1993, and subsequently developed for appellate consideration. In June 1994, the case was remanded for additional development. The case has now been returned to the Board for appellate consideration of the three issues listed on the title page of this decision. As noted in our previous remand, in her substantive appeal of March 1993, the appellant also raised the issue of Agent Orange exposure as a contributing factor in the veteran's death. Final regulations pertaining to claims based on exposure to Agent Orange have recently been approved, and that issue is referred for initial consideration by the agency of original jurisdiction pursuant to the applicable regulations, published at 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) (1994), and Veterans Benefits Administration Circular 21-94-1 (February 15, 1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the regional office (RO) committed clear and unmistakable error in voiding the rating action of April 16, 1991, which had granted service connection for diabetes mellitus. The appellant asserts that once the rating decision was signed by the three rating specialists, appropriate administrative action should have been undertaken prior to any alterations in the decision. The representative had made copes of the April 1991 rating decision and provided unofficial notification to the appellant. It is asserted that notification to the representative constitutes notification to the claimant. Therefore, the fact that the veteran was not in receipt of compensation benefits pursuant to the rating action is irrelevant, and the provisions of 38 C.F.R. § 3.105(a) should have been applied. Further, the appellant should have been notified of the proposed severance action and allowed 60 days to respond, pursuant to 38 C.F.R. § 3.105(d). It is further contended that the medical evidence supports the conclusion that diabetes mellitus developed as a result of prednisone used to treat service-connected arthritis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the rating action of April 16, 1991, was properly voided; and that the evidence supports a grant of service connection for diabetes mellitus, for purposes of accrued benefits, and a grant of service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. Written notification of a rating action of April 16, 1991, was never sent, and the rating action was voided by a rating action of May 10, 1991. 3. Service connection for arthritis was in effect at the time of the veteran's death. 4. There is a reasonable probability that diabetes mellitus developed as a result of prednisone used to treat service- connected arthritis. 5. The veteran died in December 1991 of acute coronary occlusion, with diabetes mellitus a significant contributing factor. CONCLUSIONS OF LAW 1. A rating action of April 16, 1991, never became final and binding, and, therefore, was properly voided by a subsequent rating action of May 10, 1991. 38 U.S.C.A. §§ 5107, 5104 (West 1991); 38 C.F.R. § 3.104 (1994). 2. Diabetes mellitus developed as a result of treatment used for service-connected arthritis, for purposes of accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5107, 5121 (West 1991); 38 C.F.R. § 3.310 (1994). 3. Diabetes mellitus resulting from treatment of service- connected arthritis contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 1991); 38 C.F.R. §§ 3.310, 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well-grounded, and that the relevant facts have been properly developed; therefore, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, attempts to obtain additional records from private medical treatment providers were unsuccessful. I. Whether the rating action of April 16, 1991, was properly voided. The veteran filed a claim for service connection for diabetes mellitus in January 1991, which was initially granted by a rating action of April 16, 1991. Prior to written notification of this determination, the RO issued a rating action, dated May 10, 1991, which voided this determination, and denied service connection for diabetes mellitus. As noted above, the appellant claims this action was in error, in failing to consider 38 C.F.R. §§ 3.105(a) and (d) (1994). The RO justified its failure to consider 38 C.F.R. § 3.105 by stating that since the appellant had not received any monetary benefits based on the decision, 38 C.F.R. § 3.105 was not for application. The appellant contends, and we agree, that the issue of receipt of monetary benefits is irrelevant to the applicability of 38 C.F.R. § 3.105 (1994). Nevertheless, 38 C.F.R. § 3.105(a) (1994) does specifically limit its applicability to previous determinations which are final and binding. The definition of a final and binding determination is contained in the following regulation: A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a) (1994) (emphasis added). The statute referred to requires that the claimant and the claimant's representative shall be provided timely notice of any VA decision, including an explanation of the procedure for obtaining review of the decision. 38 U.S.C.A. § 5104 (West 1991). Thus, a decision of the RO is not final and binding upon the RO until written notification has been issued. In this case, there is no record of a written notification of the April 16, 1994, rating action ever having been issued. The appellant's representative claims to have obtained a copy of this determination in advance of formal written notification, and to have notified the appellant. Nevertheless, the fact that the representative may have obtained a copy of the rating action and notified the appellant of it does not obviate the requirement of formal written notification. In this regard, such a notification, informal, and not within the requirements of 38 U.S.C.A. § 5104 (West 1991) would not constitute notification within the meaning of 38 C.F.R. § 3.104(a) (1994), for purposes of finality in the context of a timely submission of a notice of disagreement, for example. Moreover, there is no documentation of this occurrence, and such an event, outside the normal course of business, cannot be presumed in the absence of corroborative evidence. Therefore, since appropriate written notification had not been issued by the VA, 38 C.F.R. § 3.105 was not for application. Consequently, since the April 16, 1991, rating action had not become final and binding, the provisions of 38 C.F.R. § 3.105, regarding error in previous determinations, and severance of service connection, were not for application, the RO's "voiding" of that determination and the issuance of a new rating action was not clearly and unmistakably erroneous. II. Service connection for diabetes mellitus, for purposes of accrued benefits As noted above, the veteran died after submitting a notice of disagreement with the May 1991 rating action denying service connection for diabetes mellitus. Upon the death of a veteran, periodic monetary benefits to which he was entitled on the basis of evidence in the file at date of death, and due and unpaid for a period of not more than one year prior to death, may be paid to the veteran's surviving spouse. 38 U.S.C.A. § 5121 (West 1991). Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (West 1991). If the disability is diabetes mellitus, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). In addition, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (1994). Service medical records do not reveal any indicia of diabetes mellitus, and the veteran's urinalyses were negative for sugar on all occasions tested, including the retirement examination of September 1972. VA examinations reports of October 1973 and December 1973 likewise failed to disclose symptoms of diabetes mellitus. However, the appellant's primary contention is that diabetes mellitus developed as a result of steroids used to treat the veteran's service-connected arthritis and lumbosacral strain. Evidence in file at the time of the veteran's death consisted of, in addition to service medical records and 1973 VA examinations, records of the veteran's treatment at a USAF hospital in 1976, and from 1983 to 1990, correspondence from G. Belue, M.D., dated in February 1991 and October 1991, the report of a VA examination of March 1991, and a report of contact with the chief of endocrinology of a VA medical center in May 1991. The clinical records show that in December 1984 the veteran had been recently found to have an elevated blood sugar level. Reportedly, he had been taking prednisone for the past 2 years for arthritis. A consultation of January 1985 noted hyperglycemia secondary to glucocorticoids. He was currently taking prednisone for arthritis, and had been for at least 3 years. The internist referred him to the dietary unit, with a provisional diagnosis of steroid-induced hyperglycemia. Records dated in 1988 and 1989 show his treatment for Type II diabetes mellitus. Also noted was treatment for rheumatoid arthritis with prednisone. G. Belue, M.D., wrote in February 1991 that he had treated the veteran intermittently since 1977, and that the veteran had diagnoses of rheumatoid arthritis and adult onset diabetes mellitus. Medications in December 1990 were noted to include prednisone. A VA examination was conducted in March 1991. The veteran reported constant pain and burning in both feet and hands, and difficulties with the hips, lower back, and shoulders. Reportedly, he had been taking prednisone for 12 years. He also stated he had developed non-insulin dependent diabetes mellitus 6 to 7 years earlier, for which he took oral medication. The examining physician opined that the diabetes was probably secondary to the treatment of the veteran's arthritis with prednisone. A report of contact dated in May 1991 indicates that the RO contacted, by telephone, the chief of endocrinology of a VA medical center, who agreed that the veteran's diabetes mellitus should have been manifested within approximately 3 months of his prednisone use if prednisone was in fact the cause. Dr. Belue again wrote, in October 1991, that there had apparently been confusion regarding the initiation of prednisone treatment for the veteran's arthritis; his records indicated that as of May 1983, the veteran was not taking prednisone. Thus, it is undisputed that the veteran was prescribed prednisone as treatment for his service-connected arthritis; that he developed diabetes mellitus which was diagnosed in about December 1984; and that the use of prednisone can result in diabetes. The principle dispute in this case is whether the prednisone treatment was initiated within a time sufficiently proximate to the development of diabetes mellitus to be implicated in its cause. The evidence in the veteran's favor consists of the clinical impression of the treating physician who initially diagnosed hyperglycemia in 1984, that the hyperglycemia was likely steroid- induced. This impression was based on a history of 2 years of treatment with prednisone. In addition, the VA physician who examined the veteran in 1991 concluded that the diabetes mellitus was probably related to the prednisone treatment. He based his conclusion upon a history of 12 years of steroid treatment and 6 to 7 years of diabetes mellitus. Weighed against this evidence is a statement based on a telephone conversation with a VA endocrinologist who stated that diabetes mellitus would be manifested within 3 months of prednisone treatment. This physician, despite his expertise in the field of endocrinology, had not personally examined the veteran, nor even, at this point, reviewed the claims folder. Further, the veteran's private physician has written a letter which tends to dispute the lengthy history of prednisone treatment provided by the veteran; he stated that as of May 1983, the veteran was not being treated with prednisone. The VA was not able to locate the private physician who apparently initiated the prednisone treatment. Thus, since the actual date that the veteran began taking prednisone has not been verified, and since two physicians who personally examined the veteran concluded that the prednisone treatment likely caused the veteran's diabetes mellitus, the evidence is at least in equipoise, and, therefore, supports a grant of service connection for diabetes mellitus, for purposes of accrued benefits. III. Service Connection for the Cause of the Veteran's Death According to the death certificate, the veteran died in December 13, 1991 of acute coronary occlusion, with diabetes mellitus listed as a significant factor contributing to death. At the time of his death, service connection was in effect for arthritis of the shoulders, back and legs, assigned a 20 percent rating, and lumbosacral strain, multiple recurrent basal cell carcinomas, sinusitis, and a left inguinal hernia, all evaluated noncompensably disabling. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). In addition to the evidence on file at the date of death, the record contains a written statement dated in October 1992 from the VA chief of endocrinology who earlier contributed his verbal statement. He had the claims folder available for review, and wrote that: 1. Obesity, diet, aging, immobilization, physical or emotional stress and medications [including glucocorticoids] are major factors that can cause insulin resistance, which eventually evolves into Type II Diabetes Mellitus. 2. Glucocorticoid induced insulin resistance appears within 24 hours of intravenous cortisol, three days of oral dexamethosone and seven days of oral prednisone administration in young, healthy individuals. The onset of Type II Diabetes, while on glucocorticoid, varies and can begin within 2-12 weeks depending upon the dosage of the medication, the number and the severity of the coexisting diabetes causing factors, described above. Resolution of hyperglycemia occurs in a reversed way upon discontinuing the glucocorticoids and is expected to happen within the same period of time of its onset, depending again upon the number and the severity of the coexisting factors. In this case, we have no evidence that the prednisone treatment was discontinued for a time sufficient to reverse the hyperglycemia. Moreover, it is unclear exactly when the prednisone therapy was instituted. Further, we note that the physician did not express any opinions which were specific to the veteran; his statement was a general expostulation of medical principles. Moreover, we do not know the length of time between the onset of symptoms of hyperglycemia and when the condition was diagnosed. Attempts to obtain more precise information regarding these factors have been unsuccessful, despite compliance from the appellant. Thus, the evidence against the veteran's claim is not sufficient to counteract the opinions of his treating physician and the VA examiner, both of whom concluded that diabetes likely resulted from prednisone therapy. Since the death certificate lists diabetes mellitus as a significant contributory cause of death, and since we have determined that the evidence supports a finding that diabetes mellitus resulted from treatment for a service-connected disability, service connection for the cause of the veteran's death is warranted. ORDER A rating action of April 16, 1991, was properly voided. Service connection for diabetes mellitus, for purposes of establishing entitlement to accrued benefits, is granted. Service connection for the cause of the veteran's death is granted. _________________________________ JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.