Citation Nr: 0811386 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-27 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for peripheral vascular disease of the bilateral lower extremities, claimed as secondary to diabetes mellitus. 2. Entitlement to service connection for chronic fatigue syndrome, claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to November 1967 and from September 1978 to September 1979, in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that in his August 2005 substantive appeal, the veteran requested a personal hearing before the Decision Review Officer. However, correspondence dated in September 2006 indicates that he withdrew that request. FINDINGS OF FACT 1. Neither peripheral vascular disease or chronic fatigue syndrome were shown in service or for many years thereafter. 2. The weight of competent evidence of record does not show that the veteran's current peripheral vascular disease or chronic fatigue syndrome is associated with active duty service or any incident therein. 3. The weight of competent evidence does not show that the veteran's peripheral vascular disease or chronic fatigue syndrome is secondary to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. Peripheral vascular disease was not incurred in or aggravated by the veteran's period of active duty, and may not be presumed to have been incurred therein; peripheral vascular disease is not shown to be proximately due to service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Chronic fatigue syndrome was not incurred in or aggravated by the veteran's period of active duty, and is not shown to be proximately due to service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims that his diagnosed peripheral vascular disease of the bilateral lower extremities manifested or was aggravated secondary to his service-connected diabetes mellitus. He also contends that he suffers from chronic fatigue syndrome as a result of his diabetes. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be granted as secondary to any service-connected disability when the evidence shows the disability is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, to include arteriosclerosis (which arguably would include peripheral vascular disease), may be presumed to have been incurred in service if manifested to a degree of 10 percent or more within one year of service separation, the absence of any findings of the disease during service notwithstanding. 38 C.F.R. §§ 3.307, 3.309. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim. The appellant prevails in either of those two events. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records contain no indication of complaint of or treatment for peripheral vascular disease or chronic fatigue syndrome. Significantly, he indicated in his November 1967 Report of Medical History at separation that he did not suffer from leg cramps. Therefore, peripheral vascular disease or chronic fatigue syndrome, or any symptoms reasonably attributable thereto, were no shown in service. The post-service medical records indicate a finding of left dorsal weakness, characterized as "left foot drop," as early as July 1998. Even assuming that this was early manifestations of peripheral vascular disease, it was not noted until more than 30 years after discharge. In addition, the veteran himself does not claim to have been diagnosed with peripheral vascular disease until many years after separation from service. Further, he was not diagnosed with chronic fatigue syndrome until February 2008. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a result, the evidence does not show that the veteran's current diagnoses of peripheral vascular disease and chronic fatigue syndrome had their onset in service or for many years after separation. To the extent that the veteran maintains continuity of symptoms, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In adjudicating his claim, the Board must evaluate the veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board has considered the statements asserting continuity of symptomatology. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Regarding his statements asserting continuity of symptoms of peripheral vascular disease or chronic fatigue syndrome, the Board places greater probative value on the absence of complaints or treatment for the disorders in the intervening years because these are not symptoms that the veteran is competent to report he has experienced since it is not a symptom that is observable by lay observation. See 38 C.F.R. § 3.159(a) (2007). Therefore, the Board finds that he is not competent to assess continuity of symptomatology as to his claims for service connection. Next, service connection may be granted when a medical nexus is established between the claimed disorder and military service. To the extent that the veteran suggests a medical nexus between his disorders and active duty, the Board finds that no treating or examining health care provider has established such a relationship. Moreover, while he is competent to report symptoms, he is not competent to offer opinions on medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. at 470; Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Therefore, the Board finds that the evidence does not support the claims on a direct basis. However, the thrust of the veteran's argument for entitlement to service connection for peripheral vascular disease and chronic fatigue syndrome is that they manifested secondary to his already service-connected diabetes mellitus. In fact, entitlement to service connection for diabetes mellitus was established in a March 2004 rating decision. The veteran's post-service medical records indicate treatment since July 1998 for leg weakness, beginning with the diagnosis of left foot drop. He was diagnosed with type II diabetes mellitus in March 2000. Social Security Administration records diagnose the veteran with peripheral arterial disease as a primary diagnosis, with diabetes mellitus as a secondary diagnosis. However, there are conflicting medical opinions regarding causation associated with the claims folder. In a letter dated October 2004, the veteran's primary care physician stated that "it is well documented that diabetes is an accelerant for peripheral vascular disease and certainly [the veteran] was at a young age when he developed vascular disease." She opined that "his diabetes was a contributing factor" and that "smoking probably did not help anything but . . . his accelerated course was related to a combination of both." With respect to his claim for chronic fatigue syndrome, she noted that, "[i]t is certainly well known that diabetics suffer from an increased level of fatigue secondary to the fluctuating blood sugar levels," and opined that "both of his peripheral vascular disease and his fatigue should be in part related to his diabetes." In a letter dated February 2008, another primary care doctor noted that, "[i]t is well documented that [the veteran] suffers from Peripheral Vascular Disease and Peripheral Neuropathy, both of which are clearly related to and a result of his Diabetes." With respect to chronic fatigue syndrome, he opined that the condition was "not as clearly linked to a specific etiology but certainly compounded by certain chronic illnesses of which Diabetes would be associated." Both health care providers suggested that the veteran's disorders were somehow related to diabetes but were unable to link it to any one specific etiology. The Board notes that the veteran is currently diagnosed with several other, nonservice-connected conditions, such as hypertension, pancreatitis, post-traumatic stress disorder, and dysthymic disorder. Unfortunately, the law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, statements from doctors which are inconclusive as to the origin of a disease can not be employed as suggestive of a linkage between the current disorder and the claimed incident of military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). On the other hand, the veteran underwent a VA peripheral nerves examination in May 2004. The examiner noted that the veteran suffered from vascular disease as evidenced by changes in the lower extremities and bilateral femoral bruits, but opined that the vascular disease was secondary to tobacco use disorder. This examination was performed following a full review of the veteran's claims file and gave reasons specific to the veteran's history as to why the vascular disease was not secondary to diabetes mellitus. With respect to chronic fatigue syndrome, the same examiner performed a stomach, duodenum, and peritoneal adhesions examination in May 2004. The examiner noted the veteran's complaints of weakness, fatigue, and depression, but opined that his exhaustion was not likely secondary to his diabetes. He stressed that the veteran had a history of pancreatitis, which was most likely secondary to alcohol use, preceding his March 2000 diabetes diagnosis. The examiner suggested that fatigue was related to the veteran's pancreatitis. Again, this examination was performed following a full review of the veteran's claims file. The Board has a duty to analyze the credibility and probative value of the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When adequately explained, the Board is free to favor one medical opinion over another. Evans v. West, 12 Vet. App. 22, 26 (1998). In assigning high probative value to the May 2004 VA examination reports, the Board notes that the examiner had the claims file for review, specifically discussed the findings in the claims file, obtained a reported history from the veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the veteran's past medical history or that he misstated any relevant fact. Therefore, the Board finds the VA examiner's opinions to be of great probative value. Accordingly, the Board finds that the findings and opinions from the May 2004 VA examination reports have the most significant probative value concerning the issues of current disability and nexus to service or a service-connected disability and must be afforded great weight when compared to the conclusory statements from the veteran's primary care doctors. In addition, the Board has considered the veteran's statements asserting a relationship between his peripheral vascular disease and chronic fatigue syndrome and service- connected diabetes mellitus. As noted above, as a lay person, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. Therefore, his statements as to a nexus between service connected diabetes mellitus and peripheral vascular disease and chronic fatigue syndrome are not probative to the issue of causation. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in October 2003 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. He was also provided with post- adjudication follow-up VCAA notice in October 2005 and March 2006. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006 and September 1006, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With those letters, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service records, VA treatment records, and Social Security Administration records. He submitted private medical records and various written statements. In addition, he was afforded VA medical examinations in May 2004. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for peripheral vascular disease of the bilateral lower extremities is denied. Service connection for chronic fatigue syndrome is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs