Citation Nr: 9924802 Decision Date: 08/31/99 Archive Date: 09/08/99 DOCKET NO. 93-17 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to May 1969 and performed active duty for training (ADT) between May 1981 and May 1989. This matter comes to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Winston-Salem Regional Office (RO) May 1992 rating decision which denied service connection for diabetes mellitus. The case was remanded to the RO for additional development of the evidence in August 1995, December 1996, and December 1997. In his March 1993 substantive appeal, the veteran requested a Travel Board hearing. A Travel Board hearing was scheduled for July 12, 1993, and notice thereof was mailed to his address of record on June 1, 1993; a hand-written notation on a copy of the notification letter to the veteran indicates that he failed to appear for same. In view of the foregoing, the case will be processed as though his Travel Board hearing request has been withdrawn. 38 C.F.R. § 20.704(d) (1998). FINDINGS OF FACT 1. The veteran's diabetes mellitus was not evident at the time of his active service entrance in August 1967; it had its onset more than a year after his service separation in May 1969. 2. It is shown to have become evident prior to his first period of ADT in May 1981. 3. The medical evidence of record demonstrates that the diabetes mellitus underwent no increase in disability beyond the natural progress of the disease during his ADT periods between 1981 and 1989. CONCLUSION OF LAW The veteran's diabetes mellitus was neither incurred in nor aggravated by active service. 38 U.S.C.A. §§ 101(24), 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the record indicates that the veteran's claim of service connection for diabetes mellitus is well grounded. 38 U.S.C.A. § 5107(a). VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). In this regard, the Board notes that the pertinent records have been obtained and associated with his claims folder. Service connection may be allowed for a chronic disability, resulting from an injury or disease, which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 101(24), 1110. Service connection may also be allowed on a presumptive basis for certain disabilities, including diabetes mellitus, if the disability becomes manifest to a compensable degree within 1 year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required when the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). The U.S. Court of Appeals for Veterans Claims (Court) has held that lay observations of symptomatology are pertinent to the development of a claim of service connection, if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The Court established the following rules with regard to claims addressing the issue of chronicity. Chronicity under the provisions of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). A lay person is competent to testify only as to observable symptoms. A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1994). However, service connection may be granted for a post-service initial diagnosis of a disease that is established as having been incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (1998). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service or where clear and unmistakable evidence establishes that the injury or disease existed before service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1998); Crowe v. Brown, 7 Vet. App. 238 (1994). In Crowe, the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court noted that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). Crowe, 7 Vet. App. at 245. If an injury or disease is found to have preexisted active service, such injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). In May 1967, F. Turner, M.D., reported that he treated the veteran in April 1967 for symptoms including fatigue, tachycardia, and perspiration on an empty stomach, suggestive of functional hyperinsulin (hypoglycemic) disorder; treatment with the "usual" diet reportedly achieved equivocal results. Dr. Turner indicated that the veteran appeared to be quite distressed emotionally; therefore, he referred him to Dr. Blair. By letter in July 1967, W. Blair, M.D., reveals that he saw the veteran on several occasions due to situational distress; in his opinion, the veteran was within "normal limits" psychiatrically. The veteran's service medical records, medical records during ADT, and private medical records during ADT reveal treatment associated with various symptoms and illnesses. On pre- induction medical examination in May 1967, a history of "functional hypoglycemia" was indicated, but no abnormalities were found on clinical evaluation. In December 1968, he reported a history of hypoglycemia in civilian life, noting that he had the same symptoms as before (shortness of breath and fatigue). On service separation medical examination in March 1969, a history of hypoglycemia was reported, but no pertinent findings were evident on clinical evaluation. On medical examination for the purpose of enlistment into the Virginia Army National Guard in April 1981, the veteran reported a history of in-patient treatment for type V hypoglycemia in 1978, but no pertinent clinical findings were noted on examination. On medical examination in November 1984, he reported a history of sugar or albumin in urine. On examination in December 1987, diabetes mellitus and hyperlipidemia were diagnosed. On quadrennial medical examination in March 1988, a history of borderline type II diabetes mellitus was indicated. Medical records from the Maryview Hospital (documenting treatment by J. Hollis, M.D.) reveal treatment in May 1988 associated with abdominal pain, consisting of endoscopy and endoscopic retrograde cholangiopancreatography. The procedure results revealed a normal appearing pancreatic duct and a small appearing ampulla of Vater in the middle of a duodenal diverticulum. During the treatment, a history of acute pancreatitis was noted, including two prior hospitalizations in 1972 and 1976. Also noted was that the veteran had adult onset diabetes mellitus "felt to be due to heredity as his father also had the disease." The veteran reportedly believed that his diabetes may be related to pancreatitis. On examination, past history of pancreatitis related to hyperlipoproteinemia and insulin-dependent diabetes mellitus were diagnosed. Medical records from R. Nayak, M.D., from June 1988 to July 1991 reveal treatment associated with diabetes mellitus. In April 1989, the veteran was hospitalized due to uncontrolled diabetes and severe hyperlipidemia. During hospitalization, it was indicated that he had a several-year history of diabetes with a confirmed diagnosis thereof initially indicated in December 1987; in 1988 he reportedly was not on "any treatment;" he was placed on oral medication but his diabetes remained uncontrolled until he was placed on insulin. On examination during hospitalization, type II diabetes, history of recurrent pancreatitis, and severe hyperlipidemia were diagnosed. A July 1991 letter from Dr. Nayak reveals that he treated the veteran for diabetes mellitus (secondary to pancreatitis) since June 1988; at that time, the disease was reportedly out of control as the veteran was on oral medication; he had to be placed on insulin. He was also reported to have hyperlipidemia requiring medication. Medical records from the Albemarle Hospital from August to September 1995 reveal, in pertinent part, that the veteran treated his diabetes mellitus with insulin. On VA medical examination in April 1996, the veteran indicated that he experienced symptoms such as chronic fatigue, dizziness, and increased urination since 1966 (having been treated by Dr. Turner at that time), that he was initially informed of having diabetes in 1969, and that he used insulin since 1988. On review of the claims file and the pertinent medical history, the examiner indicated that the evidence showed many instances of uncontrolled high blood sugar but there was no evidence of low sugar at any time. On examination, type II diabetes with cataract was diagnosed. In the examiner's opinion, the veteran's hyperlipoproteinemia and type II diabetes were related, it was deemed likely that his pancreatitis was related to hyperlipoproteinemia, and that there was no evidence of history of hypoglycemia (as there was no record showing low blood sugars) or hyperinsulinism; reportedly, at one time it was fashionable to attribute symptoms such as fatigue to low blood sugar but only rarely was it demonstrated that such symptoms were in fact due to hypoglycemia. Medical records from the Chesapeake General Hospital from January to February 1978, received by the RO in March 1997 (and which records were unavailable to the VA physician examining the veteran in April 1996, and appear to have been unavailable to that physician at the time of his April 1997 addendum to the April 1996 VA medical examination report, as discussed below), reveal inpatient treatment associated with abdominal pain, nausea, and vomiting. History of prior hospitalization for type V hyperlipoproteinemia, acute pancreatitis, and transitory diabetes was indicated. On hospital discharge, acute pancreatitis, diabetes, and type V hyperlipidemia were diagnosed. In an April 1997 addendum to the above-discussed April 1996 VA medical examination report, prepared following another review of the claims file, the examiner indicated that, as per Dr. Nayak's 1988 medical report, the veteran had a documented diagnosis of diabetes mellitus since 1987, but the clinical evidence in the claims file did not support such diagnosis prior to 1988. He indicated that the etiology of the veteran's diabetes mellitus was unknown but it had a hereditary aspect, and that an attempt to arrive at the date of its onset would be purely speculative. In July 1997, the veteran's claims file was reviewed by a VA physician to determine the etiology and time of the onset of the veteran's diabetes mellitus, and to determine whether it was related to his active service period. On review of such material (which now included the previously unavailable private hospitalization records from January to February 1978), the examiner stated that the veteran had diabetes mellitus at least since January 1978 (at which time he also had acute pancreatitis and elevated blood sugar) but that he was not on any diabetes medication at that time (which suggests that he had type II diabetes prior to January 1978). He opined that hyperlipidemia can cause acute pancreatitis and diabetes can cause hyperlipidemia and pancreatitis; pancreatitis can cause diabetes but patients with pancreatitis-caused diabetes almost always require ongoing insulin treatment; the veteran did not start taking insulin until 1988 (and was treated with oral medication until that time) and did not, therefore, have pancreatitis-caused diabetes; he had type II adult onset of diabetes mellitus, initially manifested around 1978, with hyperlipidemia and pancreatitis. VA outpatient treatment records from June 1997 to January 1998 reveal intermittent treatment associated with diabetes mellitus. In March 1998, the veteran's claims file was again review by a VA physician, to provide an opinion regarding a possible relationship between the veteran's diabetes mellitus and his active service period (including service on ADT). The examiner indicated that there was no evidence which would support a diagnosis of diabetes mellitus prior to the veteran's private hospitalization from January to February 1978; at that time, he was not taking any diabetes medication which suggested that he had type II diabetes mellitus; he opined that there was no evidence showing that the veteran's diabetes mellitus disability increased in severity beyond the natural progression of the disease during his active service periods between 1981 and 1989. In July 1998, the veteran's claims file was again reviewed by a VA physician, who opined (confirming his previous opinion of March 1998) that there was no evidence suggesting that the veteran's diabetes mellitus advanced in disability beyond the natural progress of the disease during his ADT periods between 1981 and 1989. Based on the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for diabetes mellitus. Although Dr. Turner indicated in May 1967 that the veteran's symptoms including fatigue, tachycardia, and perspiration on an empty stomach were suggestive of hypoglycemia, and such symptoms were also evident during active service between 1967 and 1969, the presence of hypoglycemia was not confirmed by objective clinical evidence at any time during such treatment. Significantly, the absence of clinical evidence supporting the presence of hypoglycemia was pointed out by a VA examiner in April 1996 (who also suggested that, when the veteran experienced symptoms such as fatigue in the 1960s, it was fashionable to attribute such symptoms to low blood sugar level without supporting clinical findings). Overall, the clinical evidence of record clearly demonstrates that the veteran's diabetes mellitus had its onset more than a year after his active service separation in May 1969 and a medical diagnosis thereof was not shown until his 1978 private hospitalization. As indicated above, the veteran performed periods of ADT between May 1981 and May 1989 and, pursuant to 38 U.S.C.A. § 101(24), service connection may be allowed for a chronic disability incurred or aggravated during such service (a veteran is presumed to be in sound medical condition at the time of service entrance except for defects found on service entrance medical examination). In this case, the presumption of soundness at the time of the first ADT period in May 1981 under 38 C.F.R. § 3.304(b) is clearly and unmistakably rebutted. The evidence shows that diabetes mellitus was initially evident in January 1978 (type II diabetes mellitus may have been present prior to that time), that the veteran received oral medication until 1988, and that he has been on insulin thereafter. Such historical course of manifestations of diabetes mellitus, its eventual diagnosis and treatment is supported by the entirety of the evidence of record, as discussed above and, most importantly, was confirmed by a VA physician in July 1997 and again in March 1998, based on a thorough review of the entire claims file. While various causes have been proposed as the origin of the veteran's diabetes mellitus, including hyperlipidemia, pancreatitis, and hereditary factors, and the exact time of its onset is unclear, the evidence clearly shows that it had it first became manifest prior to his first period of ADT in May 1981. Most importantly, the veteran's entire claims file and the pertinent history documented therein were repeatedly reviewed by VA physicians, as discussed above (which re-review and re- evaluation was necessitated by periodic supplementation of the file by additional pertinent evidence); the most recent such review was performed in July 1998. The examiner stated (confirming his prior opinion in March 1998), that there was no evidence of record that would indicate that the veteran's diabetes mellitus was aggravated beyond the natural progress of the disease by his ADT service between 1981 and 1989. The Board is mindful of the veteran's contentions that his diabetes mellitus is causally related to his active service (including ADT) or, in the alternative, that it was aggravated beyond the natural progress of the disease during his ADT. However, to establish service connection, competent medical evidence providing a nexus between the current disability and service is required. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Rabideau v. Derwinski, 2 Vet. App. 141 (1992). While his contentions concerning pre-service, in-service, and post-service manifestations cannot be ignored, as he is competent as a layman to describe personally observable symptoms such as fatigue and frequent urination, see Cartright v. Derwinski, 2 Vet. App. 24 (1991), but as a lay person, he is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, he is not competent to conclude, in clinical terms, that his pre-service diabetes mellitus underwent a permanent increase in severity during active service, or that his current diabetes mellitus is related to symptomatology experienced in service. Moreover, the evidence of record does not show, nor is it contended by or on behalf of the veteran, that his diabetes mellitus is related to any combat service; thus, the provisions of 38 U.S.C.A. § 1154(b) (West 1991) are not applicable in this case. In reaching its decision, the Board has considered the matter of resolution of the benefit of the doubt in the veteran's favor; however, it is noted that application of the rule is only appropriate when the evidence is evenly balanced or in relative equipoise. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Such is not the case in this instance where the weight of the evidence is to the effect that the veteran's diabetes mellitus is unrelated to service. ORDER Service connection for diabetes mellitus is denied. J. F. Gough Member, Board of Veterans' Appeals