Citation Nr: 1004612 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 04-33 810 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for type 2 diabetes mellitus, to include as due to the service-connected hypertension and/or coronary artery disease (CAD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to November 1970. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the RO. In his July 2005 Substantive Appeal (VA Form 9), the Veteran requested the opportunity to testify at a hearing held before a Veterans Law Judge in regards to this matter. In November 2007, however, the Veteran, through his representative, withdrew his request for a hearing. He has not subsequently renewed his request for an opportunity to testify at a Board hearing. Thus, the Board finds that the request to testify at a hearing has been withdrawn. See 38 C.F.R. § 20.704. In January 2008, the Board remanded the issue on appeal to the RO for additional evidentiary development. Subsequently, the Veteran raised a claim for an increased rating for the service-connected heart disorder. Because the issue has not been developed or certified for appellate consideration, it is not presently before the Board and must be referred to the RO. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran is not shown to have exhibited complaints or findings referable to diabetes mellitus in service or for many years thereafter. 3. The currently demonstrated type 2 diabetes mellitus is not shown to be due to an event or incident of the Veteran's period of active service. 4. The service-connected hypertension and CAD are not shown to have caused or to aggravate the Veteran's type 2 diabetes mellitus. CONCLUSION OF LAW The Veteran's disability manifested by type 2 diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein; nor is any proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations provide that, upon the submission of a substantially complete application for benefits, VA has an enhanced duty to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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). In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim decided hereinbelow has been accomplished. In particular, the RO sent the Veteran a letter in April 2005 advising him that to establish entitlement to secondary service connection, the evidence must show a current mental or physical disability in addition to the service-connected disability, and that the service-connected disability either caused or aggravated the additional disability. The RO also sent the Veteran a letter in March 2006 advising him of the five Dingess elements, to specifically include that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman, 19 Vet. App. at 484. The RO's April 2005 letter also advised the Veteran that VA is responsible for getting relevant records held by any Federal agency, to include service records, Social Security Administration (SSA) records, and records from VA and other Government agencies; that he must provide enough information about the records to allow VA to request them; and that it was his responsibility to make sure VA received the records. In light of these notice letters, the Board finds that the Veteran has received notice of the elements required to support his claim of service connection, and notice of what evidence, if any, will be obtained by the Veteran, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). Although documents fully meeting the VCAA's notice requirements were not provided to the Veteran prior to the October 2004 rating decision on appeal, the Board notes that the claim was fully developed and then readjudicated in an October 2009 Supplemental Statement of the Case (SSOC), which was issued after all required notice was provided. Although the Veteran has not identified or demonstrated that any potential errors are prejudicial, the Board finds that any arguable lack of full preadjudication notice in this appeal has not, in any way, prejudiced the Veteran. See Shinseki v. Sanders, 07-1209 slip op. at 11-12 (April 21, 2009). The Board also finds that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the Veteran in connection with the claim on appeal. First, the Veteran's service treatment record (STR) and service personnel record is on file, and the claims file contains medical records from those VA and non-VA medical providers that the Veteran identified as having relevant records. Neither the Veteran nor his representative has identified, and the file does not otherwise indicate, that any other VA or non-VA medical providers have additional pertinent records that should be obtained before the appeal is adjudicated by the Board. See Golz v. Shinseki, No. 2009- 7039 (Fed. Cir. Jan. 4, 2010) (clarifying that VA's duty to assist applies only to records relevant to a veteran's present claim). Second, the Veteran was afforded a VA examination February 2006 to determine whether his claimed disorder is due to a service-connected disability. The Board finds that the VA examination, when considered in conjunction with an August 2006 addendum, is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Board accordingly finds no reason to remand for further examination in this case. Finally, the Veteran has been advised of his entitlement to a hearing before the RO and before the Board in conjunction with the issue on appeal. As indicated, the Veteran withdrew his request for a Board hearing in November 2007. Accordingly, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also finds that there was substantial compliance with the Board's January 2008 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). VA's duty to assist is met; thus, it is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Here, the Board directed the RO to send the Veteran a letter asking him to identify any health care providers having additional treatment records pertinent to his claim. This was accomplished by a February 2008 letter. In January 2009, the Veteran's representative submitted 350 pages of medical evidence in response to the RO's February 2008 letter. And, in November 2009, the Veteran responded that he had no other information or evidence to submit. As all directed action has been accomplished, further remand is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998); See D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board). In conclusion, because all duties to notify and assist have been satisfied, the Board will proceed with consideration of the merits of the appeal. II. Analysis The Veteran is contending that service connection is warranted for type 2 diabetes mellitus as secondary to his service-connected hypertension and CAD. As the Board pointed out in its January 2008 remand, the Veteran did not claim type 2 diabetes mellitus as due to Agent Orange exposure. The Veteran explained in his July 2005 Substantive Appeal (VA Form 9) that, although he served in the waters off the shore of the Republic of Vietnam during the Vietnam era, he hid not actually set foot on land in the Republic of Vietnam. In light of the requirement that a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam, see Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S.Ct. 1002 (2009), the Board will not address the issue of service connection due to herbicide exposure. Rather, the Veteran clarified in his July 2005 Substantive Appeal that he was only seeking service connection for type 2 diabetes mellitus as secondary to hypertension. 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; 38 C.F.R. § 3.303(a). Service connection on a direct basis requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2003); Harder v. Brown, 5 Vet. App. 183, 187-89 (1993). In this case, the Veteran is presently service-connected for CAD and hypertension, rated at 60 percent and 10 percent, respectively. The record shows that the Veteran was first diagnosed with hypertension during his active service. The first indication of CAD consists of post-service treatment records relating to surgery for a coronary artery bypass graft (CABG) times 5, beginning in August 1989. Significantly, at that time, it was noted that the Veteran had multiple risk factors for coronary artery diseased that included those of obesity, hyperlipemia and smoking. It was noted for clinical purposes that he had been noted to have had hypertension about twenty years earlier, but it had normalized spontaneously and had never been treated. During the course of hospitalization, the Veteran exhibited elevated glucose levels. The record on appeal also contains a May 2004 note from the Veteran's private (nonVA) endocrinologist stating that the Veteran had been diagnosed with type 2 diabetes mellitus within the last 1 to 2 months based upon elevated fasting blood sugars. Because the Veteran is presently service-connected for hypertension and CAD, and because he is presently diagnosed with type 2 diabetes mellitus, the Board finds that he has satisfied the first two elements of a secondary service connection claim (evidence of a current disability and evidence of a service-connected disability). See 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 512. With regard to the issue of causation and/or aggravation of the Veteran's type 2 diabetes mellitus by the service- connected hypertension and CAD, the record on appeal contains evidence both supporting and weighing against the Veteran's claim. In such situations, the Board's is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993). With regard to the medical evidence, the Board cannot ignore or disregard any medical professional's opinion or conclusions. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board, however, is not obligated to accept a physician's opinion. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993). Rather, the Board's duty is to assess their probative value. See Hayes, 5 Vet. App. at 69. In fact, the Board may favor one medical opinion over another if it offers an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007)). Accordingly, the initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated the Veteran for a long period of time or through a factually accurate medical history reported by the Veteran. See Nieves-Rodriquez, 22 Vet. App. at 303-304. Although being fully and accurately informed of the relevant medical history is necessary, the most probative value of a medical opinion comes from its reasoning. Accordingly, the next inquiry in determining probative value is whether the medical expert provided a fully articulated opinion supported by a reasoned analysis. A medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves- Rodriquez, 22 Vet. App. at 304. Therefore, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Further, medical opinions that are equivocal in nature, such as those expressed in speculative language, do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). In short, a medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriquez, 22 Vet. App. at 304. Also in reviewing the evidence, the Board must also fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the medical evidence weighing against the Veteran's claim consists of the opinion of a VA examiner. In particular, the record shows that the Veteran underwent a VA examination in February 2006. The examiner reviewed the claims file, and noted the Veteran's history of active service in the shores off Vietnam. The examiner also noted the Veteran's history of hypertension and CAD with five vessel CABG performed, followed by a second heart attack in 1996 and subsequent stent placements. According to the examiner, the Veteran was diagnosed with diabetes in 2004 and reported that his heart condition had gotten worse since that time. The examiner also performed a thorough clinical examination and reviewed current laboratory test results. Based on the results of the examination, the VA examiner diagnosed type 2 diabetes mellitus. With regard to etiology, the VA examiner opined that the Veteran's diabetes was not directly due to hypertension and CAD. The examiner explained that the Veteran's diabetes developed many years after the Veteran's discharge and after he had developed hypertension and CAD. Plus, diabetes was not established as presumptively secondary to these disorders. The examiner then opined that the Veteran's diabetes currently aggravated the Veteran's CAD and that it was at least as likely as not that the service-connected hypertension and CAD increased the manifestation of the claimed type 2 diabetes mellitus. In an August 2006 addendum, the VA examiner indicated that she had again reviewed the Veteran's medical records and her prior VA examination report. Accordingly, the examiner again noted that the Veteran developed diabetes many years after his discharge and after developing CAD and hypertension. The examiner then opined that the baseline manifestation of his CAD was aggravated by diabetes, but his diabetes was not aggravated by CAD and hypertension. The examiner explained that the exact contribution of CAD and hypertension in the manifestation of diabetes was impossible to determine. The Board finds that the VA examiner's opinion is the most probative evidence with regard to the issue of the relationship between the service-connected CAD and hypertension and his diabetes. First, the VA examiner reviewed the claims file twice, and provided a factually accurate history pointing out that the Veteran developed CAD and hypertension many years prior to his diabetes diagnosis. The examiner's specificity shows that she was fully informed of the pertinent factual premises (i.e., medical history) of the case. See Nieves- Rodriquez, 22 Vet. App. at 303-304. The VA examiner's opinion is also highly probative because the examiner fully articulated her conclusion that the Veteran's diabetes was not caused or aggravated by his service-connected hypertension or CAD. Further, the examiner provided a reasoned analysis for this opinion: that it was impossible to determine the exact contribution of CAD and hypertension in the manifestation of diabetes. See id. at 304. Because the VA examiner's opinion is factually accurate, fully articulated, and based on sound reasoning, it carries significant probative value. See Nieves-Rodriquez, 22 Vet. App. at 304. The Board points out that although the VA examiner opined that the Veteran's service-connected CAD was aggravated by his type 2 diabetes mellitus, service connection is not warranted when a service-connected disability is aggravated by a nonservice-connected disability. See Johnston v. Brown, 10 Vet. App. 80, 86 (1997). Also weighing against the Veteran's claim is a private March 2007 discharge summary. The Veteran was being discharged after his (second) CABG times 3 for unstable angina. The summary explains that, although the Veteran's "first problem" (complication) was diabetes, his blood glucose remained in excellent control throughout his in-patient treatment. The record also contains the CABG operation report itself, which indicates that the Veteran's CABG was an "extremely difficult redo operation" and involved an "extremely tedious and difficult and dangerous" procedure. The Board recognizes that this evidence does not explicitly address whether the Veteran's diabetes was caused by his service-connected CAD or hypertension. Nonetheless, it shows that despite the "extremely difficult" and "extremely . . . dangerous" CABG, which was related to the Veteran's service-connected CAD, his diabetes was not aggravated by the operation. The medical evidence weighing in favor of the Veteran's claim consists of an October 2005 questionnaire filled out by the Veteran's private treating endocrinologist. The endocrinologist indicated that he had treated the Veteran for three years, but was not the Veteran's primary care physician and had not reviewed the Veteran's treatment records. The endocrinologist went on to endorse an option indicating that it was more likely than not that the Veteran's diabetes could be considered secondary to his service-connected hypertension and/or heart condition. The endocrinologist also hand wrote a note explaining that the Veteran had multiple medical problems that originated during his active service and had only served to exacerbate his current condition leading to diabetes. The Board finds that this opinion carries very little probative value. First, there is no indication that the endocrinologist was fully informed of the pertinent factual premises of the case. He specified that he had treated the Veteran for three years, which supported a conclusion that he was aware of the history of the Veteran's diabetes. It is not clear, however, that the endocrinologist was aware of the pertinent history of the service-connected hypertension or CAD. In fact, he noted that he was not the Veteran's primary care physician. The endocrinologist did not otherwise demonstrate that he was made aware of the pertinent history, such as through a history reported by the Veteran. Without being fully and accurately informed of the relevant medical history, the endocrinologist's October 2005 questionnaire has limited probative value. See id.; see also Winsett v. West, 11 Vet. App. 420 (1998) (the opinion of a veteran's treating physician is not accorded greater probative value over a VA or other physician). The October 2005 questionnaire also has limited probative value because the endocrinologist did not provide a reasoned analysis for his conclusion that it was more likely than not that the Veteran's diabetes could be considered secondary to his service-connected hypertension and/or heart condition. In particular, the endocrinologist's opinion was expressed in speculative language. Although the endocrinologist used the phrase "more likely than not," which was clear and unequivocal, he then equivocated by stating only that the Veteran's diabetes "can be considered" secondary to hypertension and CAD. The phrase "can be" implies the duel meaning that the disorder may or may not be secondary to hypertension or CAD. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board further points out that the endocrinologist's opinion is not clearly articulated. The endocrinologist noted that the Veteran's "multiple medical problems" of service origin served to exacerbate his "current condition" leading to diabetes, but the endocrinologist did not specify which medical problems he was referring to. It is clear to the Board that the Veteran's coronary artery disease and type 2 diabetes mellitus share many of the same risks factors as identified in the treatment records; however, such association does not serve to establish a basis for linking the development of the type 2 diabetes mellitus to his service-connected hypertension or coronary artery disease on a direct causal basis. The endocrinologist's opinion on its face does identify hypertension or heart disease as a risk factor for causing or exacerbating the claimed type 2 diabetes in this case. Moreover, on this record, the identified risk factors, to include obesity, hyperlipidemia and smoking, or other unidentified "multiple medical problems" cannot serve to link the onset of the type 2 diabetes mellitus on the basis of being a disease or injury that was incurred in the Veteran's period of active service. Further, the favorable opinion did not explain how exacerbation of the Veteran's "current condition" led to the Veteran's diabetes. To the extent that the opinion suggests that the Veteran's hypertension and CAD caused a "condition" that then caused diabetes, the endocrinologist did not indicate to which "condition" he was referring. Nor does the opinion identify to what extent the hypertension or heart disease might aggravate the type 2 diabetes mellitus. In short, the Board finds that the opinion expressed by the endocrinologist in an October 2005 questionnaire is not shown to be fully and accurately informed by the relevant medical history, and it is not supported by a clearly articulated or reasoned analysis. Accordingly, it is afforded minimal probative value. See Nieves-Rodriquez, 22 Vet. App. at 304. The Board has also considered the Veteran's lay assertions as indicated by his October 2004 Notice of Disagreement (NOD) in which he wrote that his type 2 diabetes mellitus is secondary to his service-connected hypertension. The Board finds, however, that his lay assertions, although credible, are not competent evidence supporting his claim. First, the relationship between type 2 diabetes mellitus and hypertension and/or CAD is not a medical question capable of lay observation, and it is not otherwise the type of medical question for which lay evidence is competent evidence. Further, except as indicated, the Veteran has not identified a contemporaneous medical opinion relating the development of diabetes mellitus to CAD and/or hypertension, and the record otherwise contains no contemporaneous descriptions supporting a later medical professional's diagnosis or etiology opinion. Accordingly, to this extent, the Veteran's lay statements do not constitute competent evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. In conclusion, the Board finds after careful review of the entire record that the weight of the evidence does not support the Veteran's claim of service connection for type 2 diabetes mellitus as secondary to his service-connected CAD and hypertension. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for type 2 diabetes mellitus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs