Citation Nr: 1205321 Decision Date: 02/13/12 Archive Date: 02/23/12 DOCKET NO. 08-12 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from October 1966 to March 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied the Veteran's claim for service connection for diabetes mellitus. The Board observes that the July 2007 rating decision addressed six additional issues: entitlement to a rating in excess of 50 percent for generalized anxiety disorder and depressive disorder, a rating in excess of 10 percent for degenerative arthritis of the lumbar spine, a rating in excess of 10 percent for hypertension with abnormal ELG and hyperlipidemia, and a compensable rating for gouty arthritis of the left ankle, and entitlement to service connection for a cervical spine disorder and median nerve paralysis with numbness in the finger tips. The Veteran entered a notice of disagreement as to such issues and a statement of the case was issued in March 2008. However, in his April 2008 substantive appeal (VA Form 9), the Veteran limited his appeal to the issue of entitlement to service connection for diabetes. Therefore, with respect to these six additional issues, he did not perfect his appeal in a timely manner following the issuance of the March 2008 statement of the case. See 38 C.F.R. § 20.202 (2011). Inasmuch as the RO has not taken any action to indicate to the Veteran that these issues remain on appeal and it took steps to close the appeal (see certification of Appeal [VA Form 8]), the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims (Court)'s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not mislead by actions on the part of VA into believing that he had perfected an appeal as to these issues. Therefore, the six additional issues are not properly before the Board. Therefore, the Veteran's representative's January 2012 Written Brief Presentation regarding the issues of entitlement to a rating in excess of 50 percent for generalized anxiety disorder and depressive disorder, a rating in excess of 10 percent for degenerative arthritis of the lumbar spine, a rating in excess of 10 percent for hypertension with abnormal ELG and hyperlipidemia, and a compensable rating for gouty arthritis of the left ankle, and entitlement to service connection for a cervical spine disorder and median nerve paralysis with numbness in the finger tips will be taken as a new claim. As such, these issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In written correspondence dated in May 2008, the Veteran submitted additional evidence regarding his claim for service connection diabetes mellitus. The AOJ has not considered this new evidence and the Veteran did not submit a waiver of initial AOJ consideration. See 38 C.F.R. § 20.1304(c) (2011). However, as the Board is granting the Veteran's claim for service connection for diabetes mellitus type II herein, there is no prejudice to him in proceeding with a decision at this time. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era and, therefore, is presumed to have been exposed to Agent Orange or other herbicides while there. 2. Resolving all reasonable doubt in favor of the Veteran, he has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Diabetes mellitus type II may be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant the Veteran's claim of entitlement to service connection for diabetes mellitus type II is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. The Veteran contends that he currently experiences diabetes mellitus because of exposure to Agent Orange or another toxic herbicide agent during his military service while stationed in Vietnam. See the Veteran's January 2007 claim. Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153 (aggravation). Service connection 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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). "Service in Vietnam," for purposes of this presumption, includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. In this regard, Type II diabetes is a disease that has been associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The National Personnel Records Center (NPRC) confirmed that the Veteran served in Vietnam from October 1969 to October 1970. Therefore, the Veteran experienced service in Vietnam during the Vietnam era, and as such, was exposed to herbicide agents during his military service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, if the Veteran has a qualifying disorder, it is presumptively due to his military service. The Veteran has asserted that he currently experiences diabetes mellitus type II. However, the Veteran is not competent to diagnose himself with such disease. See Layno v. Brown, 6 Vet. App. at 469; see also 38 C.F.R. § 3.159(a)(2). The Veteran's records present conflicting medical evidence regarding whether or not he currently experiences diabetes mellitus. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators;... Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran was provided with a VA medical examination in May 2007. At that time, the examiner concluded that the Veteran was not experiencing diabetes mellitus as the evidence did not show that he had met the "American Diabetic Association [ADA] criteria for diabetes mellitus." In this regard, the examiner reviewed certain private treatment records from Dr. James-Peters which had been submitted and showed testing but did not reveal diabetes mellitus per the ADA criteria. Additionally, he noted that diabetes mellitus was not present on testing provided to the Veteran at that time. The VA examiner concluded that the Veteran was not on a restricted diet, and did not experience certain symptoms or test results sufficient to warrant a diagnosis of diabetes mellitus. However, the record also contains a private treatment record from Dr. James-Peters dated in October 2006 that indicates a diagnosis of and treatment for diabetes mellitus. Furthermore, the Veteran submitted a note from Dr. James-Peters dated in January 2007 that reflects he was taking medication and following a restricted diet as treatment for his diabetes mellitus. A January 2007 VA medical treatment record also recorded that the Veteran had begun to receive ongoing private treatment for diabetes mellitus. Finally, a private treatment record dated in February 2007 from Alabama Asthma & Allergy, indicating a diagnosis of and treatment for diabetes mellitus. The Veteran also submitted a record of his prescription for Metformin showing ongoing medication for treatment of his diabetes mellitus. Therefore, there is conflicting medical evidence regarding whether the Veteran has a current diagnosis of diabetes mellitus. It is not within the province of the Board's authority to make medical conclusions, and the Board is not competent to determine what the Veteran's test results reveal regarding a current diagnosis of diabetes mellitus. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board is required to weigh the conflicting medical records. In this case, Dr. James-Peters did not provide a thorough explanation for the diagnosis of diabetes mellitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record). There is also no "treating physician rule" requiring the Board to give more probative weight the Veteran's treating private physician's opinion versus the VA medical examiner's. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993). As such, the probative weight of Dr. James-Peters' diagnosis is somewhat diminished. However, Dr. James-Peters' diagnosis of diabetes mellitus has been supported by multiple physicians, including as shown in the Veteran's VA medical treatment records. On the other hand, the negative opinion provided by the May 2007 VA medical examination was thorough and supported by a rationale as well as testing conducted at the time of the examination. However, the examiner indicated that the Veteran was not on a restricted diet, which is in conflict with the other evidence of record. Specifically, the Veteran's private treatment record from Dr. James-Peters notes that the Veteran is currently on a "Diabetic Diet." In addition, the VA examiner indicated that the Veteran was receiving Metformin as treatment for diabetes mellitus, but did not explain how the Veteran could be receiving treatment for diabetes mellitus without actually having the disorder. The failure to explain fully these conclusions diminishes to some extent the probative value of the conclusions of the VA medical examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295; see also Stefl v. Nicholson, 21 Vet. App. at 124. Finally, the Board notes that the examiner failed to address the relevant treatment records provided by Dr. James-Peters and VA medical treatment records, or the subsequent evidence from Quest Labs, and Alabama Asthma and Allergy. In particular, the examiner failed to address the evidence from Dr. James-Peters that the Veteran is currently on a restricted diet for diabetes mellitus. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). As such, the Board is presented with competent evidence of limited probative value both for and against a current diagnosis of diabetes mellitus. The Board concludes that the relative probative value of these opinions is in equipoise. In deciding a claim where an element of the claim is in relative equipoise, the Board has must consider the doctrine of reasonable doubt. As the Court has written: A unique standard of proof applies in decisions on claims for Veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in 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). See, too, 38 C.F.R. § 3.102. The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise (about evenly balanced for and against), the Veteran prevails. Where the "fair preponderance of the evidence" is against the claim, the Veteran loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). In light of the finding that the probative weight of the evidence as to whether the Veteran currently experiences diabetes mellitus is in equipoise, the benefit of the doubt is resolved in the Veteran's favor. Accordingly, affording the Veteran the benefit of the doubt, the Board concludes that there is sufficient evidence to find that the Veteran has a current diagnosis of diabetes mellitus type II. Here, the weight of the evidence as to a qualifying diabetes mellitus disorder is in equipoise. In such situations, the benefit of the doubt is resolved in the Veteran's favor. As such, with objective evidence of herbicide agent exposure and a qualifying disorder, the Veteran is entitled to application of the presumptive provisions for diabetes mellitus due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.313. ORDER Service connection for diabetes mellitus type II is granted. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs