Citation Nr: 0716596 Decision Date: 06/05/07 Archive Date: 06/18/07 DOCKET NO. 03-08 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M.S. Lane, Counsel INTRODUCTION The veteran served on active duty from September 1952 to December 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen a previously denied claim of entitlement to service connection for diabetes mellitus. In December 2003, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. Thereafter, in a May 2005 decision, the Board determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for diabetes mellitus. The Board also denied claims of entitlement to service connection for Hashimoto's thyroidism, and for osteoporosis with arthritic degeneration of the spine, left hip, and right hip; and the Board determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for epilepsy. The veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While this case was pending at the Court, the appellant's attorney and the VA Office of the General Counsel filed a joint motion to vacate that portion of the May 2005 Board decision that determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for diabetes mellitus, and to remand that issue for readjudication. It was requested that the veteran's appeal as to other issues addressed in the May 2005 decision be dismissed. In a July 2006 Order, the Court granted the joint motion, vacated the Board's May 2005 decision as to the claim for diabetes mellitus, and remanded the matter to the Board for readjudication and/or further development. The veteran's appeal as to the remaining issues was dismissed. This case has been advanced on the docket pursuant to 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2006). FINDINGS OF FACT 1. In an April 1976 decision, the Board denied the veteran's claim of entitlement to service connection for diabetes mellitus. 2. In a May 1979 decision, the Board determined that the 1976 decision was consistent with and well supported by the evidence then of record and that the additional evidence did not establish the presence of diabetes during service, at the time separation or within the presumptive year thereafter. 3. The additional evidence received since the May 1979 decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The preponderance of the evidence establishes that the veteran has diabetes mellitus. 5. There is an approximate balance of positive and negative evidence as to whether the diabetes mellitus had its onset in service. CONCLUSIONS OF LAW 1. Evidence added to the record since the May 1979 Board decision is new and material; thus, the claim of entitlement to service connection for diabetes mellitus is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2006). 2. Resolving doubt in favor of the veteran, diabetes mellitus was incurred during his active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matter The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that records on file are sufficient to resolve the matter in the veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken hereinbelow. II. New and material evidence As explained in the Introduction, in May 2005, the Board determined that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for diabetes mellitus, which had been previously denied in a May 1979 Board decision. In the subsequent joint motion for remand, the parties essentially found that the Board's statement of reasons and bases was insufficient insofar as it rejected a private medical opinion solely because it was based on a self- reported history that had been previously rejected by the Board. The parties further concluded that the decision should be vacated and remanded so that the Board could reconsider the question of whether the veteran has submitted new and material evidence to reopen his claim. The Board will now proceed to readjudicate the veteran's claim in light of the concerns raised in the joint motion. At the outset of this discussion, the Board notes that it is mindful of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the CAVC is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1) (West 1991). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis herein has been undertaken with that obligation in mind. In February 1971, the RO denied the veteran's original claim of entitlement to service connection for diabetes mellitus. The RO noted that service medical records were negative for a diagnosis of diabetes mellitus and that the separation examination showed no abnormalities. The RO continued to deny the claim of service connection for diabetes mellitus in October 1974, January 1975, April 1975, August 1975 and November 1975, finding that the veteran had not submitted new and material evidence. In April 1976, the Board denied the claim of service connection for diabetes mellitus. The Board essentially found that the veteran's diabetes mellitus was not incurred in or aggravated by service. In June 1976, the RO again denied the claim of service connection for diabetes mellitus noting that the veteran had not submitted new and material evidence to reopen the claim. In September 1976 and May 1977, the RO denied the claim of service connection for diabetes mellitus finding that new and material evidence had not been submitted. In May 1979, the Board denied the claim of service connection for diabetes mellitus on the basis that the evidence of record did not establish a new factual basis warranting modification of its previous determination. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2006). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In support of his claim to reopen, the veteran submitted a medical opinion from Dr. T.L., a private physician. In a letter dated in August 2004, that physician indicated that the veteran has experienced multiple black-out spells due to his blood sugar falling below 70. The physician also noted that the veteran had described having similar spells in his 20's when he was in the military. Dr. T.L. concluded that the spells in service were most likely due to his diabetes. Since the joint motion, the veteran has also submitted another statement, with more complete rationale for conclusions reached, from Dr. T.L. in which the physician reiterated his belief that the veteran's black-out spells were due to his diabetes. In this regard, the physician explained that the veteran's blood sugars had fluctuated since his initial diagnosis in 1959, and that this was consistent with Type I diabetes. He noted that patients were usually in their late teens or early twenties upon diagnosis, and that their blood sugars were often very stable. He further explained that the veteran was a "brittle" diabetes, which means his blood sugars fluctuate a great deal, and that such diabetics have "terrible" symptoms, including behavioral changes, confusion, fatigue, seizure disorders, and loss of consciousness when blood sugars were low. For these reasons, the physician concluded that the veteran's loss of consciousness in service was likely related to his diabetes. Dr. T.L. noted the negative urine test at separation, but indicated that he could still have had diabetes, which was most accurately found through blood tests. The Board finds that the several opinion letters of Dr. T.L. constitute new and material evidence in that they are not cumulative nor redundant of previously submitted evidence, and they appear to raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been submitted to reopen his claim. To this extent, the benefit sought on appeal is granted. Having reopened the veteran's claim, the Board will proceed to adjudicate it on a de novo basis. Because the benefit sought on appeal is being granted, the Board believes that the veteran will not be prejudiced by this action. III. Entitlement to service connection for diabetes mellitus As noted above, the veteran contends that his diabetes manifested while he was on active duty in 1952. Specifically, he points to fainting spells that occurred in service in 1952 as evidence that the disease had its onset in service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, such as such as diabetes mellitus, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following discharge. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, the Board cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In this case, there appears to be no dispute as to the fact that the veteran has diabetes mellitus, and that the disease was first diagnosed following a glucose tolerance test in 1959. Thus, the question that must be resolved is whether his diabetes mellitus may have actually had its onset while he was on active duty, or, if not, whether it manifested to a compensable degree within one year of his separation in December 1957. In this regard, the Board notes that the veteran's service medical records do document instances of fainting spells. For example, in December 1952, the veteran indicated that he had experienced fainting spells for the past two years, but that the episodes were not becoming more frequent. He explained that the most recent episode occurred the morning after he worked guard duty, and that he did not eat breakfast the morning of the fainting spell. Subsequent records show that he was seen again later for fainting episodes, at which time he reported experiencing such episodes every week for three years, usually when standing suddenly. However, the examiner indicated a diagnosis of questionable vasomotor instability, and no diagnosis of diabetes was noted Since filing his original claim for service connection, the veteran has submitted a number of statements from private physicians specifically in support of his contention that his diabetes was related to his military service. In a September 1974 statement, Dr. D.C indicated that the veteran reported a history to him suggesting that the diabetes was service- connected. In October 1974 and March 1975 statements, Dr. D.C. indicated that he had reviewed the veteran's service medical records, including the 1952 entries previously described, and he believed that the veteran's fainting spells represented periods of diabetic coma. He concluded that the veteran's diabetes was "unquestionably" related to service. In a June 1975 statement, he reiterated that, in his opinion, the veteran's diabetes mellitus unquestionably began in service. In a December 1974 statement, Dr. J.P. also noted the veteran's account of suffering frequent fainting attacks during service in 1952. Dr. J.P. specifically indicated that the veteran believed the fainting episodes in service were caused by diabetes. During a December 1975 personal hearing, the veteran set forth his contentions in greater detail. He explained that he believed that his diabetes originated in childhood, and was later aggravated by military service. He testified that he experienced dizzy spells throughout service, but was not placed on medication. He indicated that he was first diagnosed with diabetes by a physician in 1959. During this hearing, Dr. D.C. also testified that he believed the veteran had diabetes prior to service which continued in service, and was manifested in the form of fainting episodes. Dr. D.C. noted that while the relationship between the fainting spells and diabetes had not been established during service, he believed it could have been established with proper testing. He explained that he believed that the diabetes was aggravated by service because the physicians in service failed to diagnose the disorder. The physician also noted that, because of the fluctuating nature of the veteran's diabetes, the negative urinalysis in service did not necessarily rule out diabetes. As discussed above, after filing to reopen his claim, the veteran submitted an August 2004 letter from Dr. T.L. in which the physician indicated that the veteran has experienced multiple black-out spells due to his blood sugar falling below 70. The physician also noted that the veteran had described having similar spells in his 20's when he was in the military. Dr. T.L. concluded that the spells in service were most likely due to his diabetes. In February 2007, in order to clarify the date of onset of the veteran's diabetes mellitus, the Board requested a medical opinion from the Veterans Health Administration (VHA). See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2006). Specifically, the Board requested that an endocrinologist review the claims folder, and offer an opinion as to the most likely date of onset of the claimed diabetes, and an opinion expressing agreement or disagreement with any pertinent medical opinions that have been offered in this case. In March 2007, in accordance with this request, a VA physician reviewed the veteran's claims folder and completed a memorandum detailing the physician's findings. That physician, Dr. D.F., noted that the best evidence that the veteran's diabetes mellitus did not occur in service was the two urinalysis tests, which showed no urinary glucose. The physician explained that the renale threshold for glucose was about 180 mg%, and that both of his negative tests indicated that his blood sugar was less than 180mg%. For this reason, the physician concluded that it was very doubtful that the veteran had diabetes during his time in service; however, since blood testing was not done at that time, it was impossible to absolutely exclude the possibility that he had mild, early diabetes. The physician noted, however, that no evidence supported this contention either. The Board subsequently issued a letter to Dr. D.F. asking that he respond more specifically to the Board's question as to the most likely date of onset of the claimed diabetes mellitus. In an April 2007 response, the physician indicated that it was impossible to make an exact determination as to whether diabetes had its onset before, during, or after service because screening tests were not performed at enlistment or separation. The Board also asked that Dr. D.F. comment on the other medical opinions of record; the physician responded that he could only find one such opinion, which was a brief statement that the diabetes began in service. Dr. D.F. concluded that this opinion was totally unsubstantiated by laboratory testing and, as such, was not a "valid medical opinion." Thereafter, the veteran submitted a second statement from Dr.T.L. reiterating his belief that the veteran's in-service fainting spells were related to his diabetes. The physician explained that the veteran's blood sugars had fluctuated since his initial diagnosis in 1959, and that this was consistent with Type I diabetes. He noted that patients were usually in their late teens or early twenties upon diagnosis, and that their blood sugars were often very stable. He further explained that the veteran was a "brittle" diabetic, which means his blood sugars fluctuate a great deal, and that such diabetics have "terrible" symptoms, including behavioral changes, confusion, fatigue, seizure disorders, and loss of consciousness when blood sugars were low. For these reasons, the physician concluded that the veteran's loss of consciousness in service was likely related to his diabetes. Dr. T.L. noted the negative urine test at separation, but indicated that he could still have had diabetes, which was most accurately found through blood tests. As discussed in detail above, the record reflects that the veteran has diabetes mellitus, and that the disease was first diagnosed following a glucose tolerance test in 1959. As to whether the veteran's diabetes mellitus had its onset in service, the Board has weighed the medical opinions both for and against his claim. Having reviewed those opinions, the Board concludes that there is an approximate balance of positive and negative evidence regarding the question of whether the veteran's diabetes mellitus had its onset while he was on active duty. On one hand, a VA endocrinologist reviewed the record, and concluded that it was doubtful that the veteran had diabetes while on active duty. The physician explained that this conclusion was supported by the results of two urinalysis tests performed while he was on active duty. On the other hand, Dr. T.L. explained that the fainting spells of the type described by the veteran were consistent with someone with his history and type of diabetes, and for this reason, concluded that it was likely that the fainting spells were a symptom representing early diabetes. The Board notes that this conclusion appears consistent with some of the statements offered by Dr. D.C., who also found that the fainting spells were manifestations of diabetes. In particular, the Board notes that both Dr. T.L. and Dr. D.C. pointed to the fluctuating nature of the veteran's Type I diabetes. The Board recognizes that both the VA endocrinologist and Dr. T.L. agreed that it was impossible to conclusively determine whether diabetes had its onset during service because the necessary blood tests were not routinely performed. However, the veteran need not conclusively prove that a disability was incurred in or aggravated by service in order to establish service connection. Rather, as noted above, there need only be an approximate balance of positive and negative evidence regarding the matter. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board finds that the evidence is essentially in equipoise as to whether the veteran's diabetes mellitus had its onset while he was on active duty. Therefore, resolving reasonable doubt in favor of the veteran, the Board finds that a grant of service connection for diabetes mellitus is warranted. The Board notes in passing that it has considered the possibility that the veteran's diabetes may have pre-existed his military service. In this regard, the Board notes that the veteran reported in service that he had blacked-out prior to enlistment, and the veteran at one time argued to VA that his diabetes pre-existed service and was aggravated therein. However, the evidence of record documents that the veteran was determined to have been in sound condition, physically and psychiatrically, when examined upon entrance into service. He is thus presumed to have been in sound condition. 38 C.F.R. § 3.304. Furthermore, the veteran's self-report that he had previously suffered from fainting spells prior to enlistment is insufficient to rebut the presumption of soundness with respect to the claimed diabetes, a diagnosis that may only be made by a medical professional. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111). Thus, for the purposes of this decision, the Board has presumed that the veteran was in sound condition upon his entrance into service. The Board also notes that, in the past, the veteran has pursued a separate claim of entitlement to service connection for epilepsy, and the Board has considered whether the fainting spells may have been the result of a seizure disorder distinct from his diabetes mellitus. However, the medical evidence of record dealing with the question of whether the veteran has a seizure disorder is inconclusive as to the presence of a distinct seizure disorder. In fact, several of the medical reports addressing that question note the possibility that his reported episodes of loss of consciousness could be due to alternating blood sugar attributable to his diabetes. For example, that possibility was noted in the report of a June 1984 hospitalization, and subsequent neurological testing in August 1984 revealed no evidence of a seizure disorder. Thus, notwithstanding the post-service evidence of record suggesting the possibility of a distinct and separate seizure disorder, the Board concludes that there remains an approximate balance of positive and negative evidence regarding the question of whether the veteran's in-service fainting spells were related to his diabetes mellitus. The Board also notes that, in a May 2007 statement, the veteran's representative set forth various arguments challenging the probative value of the VHA opinion that was obtained by the Board. The representative also argued that he was not seeking for the Board to "resolve doubt" in favor of the veteran, as he believes there was no probative evidence of record weighing against the claim, and that a grant on such a basis would be erroneous. However, while the Board has considered the arguments advanced by the representative, the Board finds that addressing them herein is unnecessary in light of the favorable decision reached in this case. While the representative may disagree with the basis of this grant, the Board notes that whether the award is based on the representative's argument or on reasons and bases contained herein, the ultimate outcome remains the same, i.e., service connection for diabetes mellitus is granted. In summary, having resolved doubt in favor of the veteran, the Board finds that entitlement to service connection for diabetes mellitus is warranted. Thus, the benefit sought on appeal is granted. ORDER Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs