Citation Nr: 1300464 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 11-23 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected gastroesophageal reflux disorder (GERD). 2. Entitlement to service connection for a chronic neurological disability, to include stroke with vision loss due to thiamine deficiency, to include as secondary to service-connected GERD. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression and adjustment disorder, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Air Force, to include as an active member of the reserves, from November 1980 to November 1990, January 1991 to April 1991, and September 1991 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from May 2008 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and Albuquerque, New Mexico, respectively. The Veteran resides in the jurisdiction of the Albuquerque RO. The issues of service connection for neurological and psychiatric disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The only competent and credible evidence regarding the contended causal or aggravating nexus between service-connected GERD and diabetes is against the alleged relationship. CONCLUSION OF LAW Diabetes was neither caused nor aggravated beyond the natural course of the disease process by service-connected GERD. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of 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. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. In this case, the Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim for service connection. In addition, the Veteran received notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. The Veteran is represented by the Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. The Veteran was afforded a comprehensive VA examination to address the contended nexus between GERD and diabetes, and it is adequate to resolve the issue on appeal. Thus, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). Analysis Service connection has been established for the Veteran's GERD, currently evaluated as 30 percent disabling. He had surgery for the GERD in 2005, and although this apparently afforded him some relief with regard to symptoms, he has been noted to have difficulty with vitamin absorption. His most recent VA examination, dated in September 2010, noted that the restoration of absorption has not returned at the rate expected following his surgical intervention. The Veteran contends that it is this problem with nutritional absorption, which he associates with service-connected GERD, that has caused (or aggravated beyond the natural course of the disease process) his current diabetes. The service treatment records are absent for any complaint, treatment, or diagnosis of diabetes, and the Veteran does not contend that there was an onset in active service. Indeed, evidence indicates that diabetes was first diagnosed in 2008, which was years after his discharge from active service. The Veteran was examined for diabetes in September 2010. The associated report did not find that there was any etiological relationship between diabetes and contains a rationale with respect to the conclusions reached in the assessment. Indeed, the VA examiner stated "there is no logical connection between [diabetes] and . . . fundoplication surgery, whether the surgery resulted in vitamin deficiencies or not." The examiner went on to state that the Veteran voiced his "reluctance" to make such a linkage. Essentially, this examiner noted that the contended relationship between diabetes and GERD is based on the Veteran's belief that treatment for GERD in 2005 caused nutritional defects which resulted in a diabetic condition. The examiner noted that such a surgical intervention has no logical medical connection to the development of diabetes irrespective of any associated nutritional defects associated with the surgery. That is, even if the Veteran were to develop nutritional deficiencies following his fundoplication surgery for GERD, such deficiencies would not be "connected" (i.e. would not cause or aggravate) a diabetic condition. The 2010 opinion is based on the examiner's medical knowledge, and is a subject on which the examiner, as a physician, is competent to address. With regard to the Veteran's contentions, all that is forwarded is his own personal belief that the nutritional deficiencies associated with his post-surgical GERD had some etiological relationship to diabetes. There is no other medical opinion, private or VA, which is supportive of that contention. Quite the opposite, the VA examiner explained that the contended relationship is not logical as a medical proposition. Veterans are competent to report on what comes to them through their senses, and in some cases, they are competent to report on simple medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With respect to something as complicated as a nexus opinion addressing the potential relationship between post-surgical nutritional defects manifesting after a GERD treatment and the onset of diabetes, however, the Board must conclude that the Veteran lacks the requisite medical credentials to opine as to something so complicated. Id. Moreover, in the 2010 opinion, the examiner noted that "the Veteran today voiced his reluctance to make a connection between the DM and his surgery." The Veteran developed diabetes in 2008, which was after his diagnosis of GERD and surgical treatment for the disorder. The Veteran is not competent, nor is he credible, in his assertion of a relationship (either causal or aggravating) between his GERD and diabetes, and the entirety of the competent and credible evidence is against the claim. Accordingly, the Board must find that the preponderance of the evidence does not support the contended relationship, and the claim will be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected GERD, is denied. REMAND At the most recent VA examination, dated in September 2010, it was noted that the restoration of absorption had not returned at the rate expected following the Veteran's surgical intervention to treat his GERD. The Veteran contends that it is this problem with nutritional absorption that he associates with service-connected GERD, that has caused (or aggravated beyond the natural course of the disease process) a chronic neurological disorder. Further development is required before a decision can be made on this issue. The 2010 examiner determined that a diagnosis of transient ischemic attacks (TIA) was not appropriate, and noted that there was no history of a cerebrovascular accident (CVA or stroke). The Veteran was to be referred to neuropsychology for an evaluation, and an electromyelography (EMG) assessment was deemed warranted. It is not readily apparent that such testing was afforded, as the record does not contain evidence of the suggested test. Also significant, is that the Veteran has submitted VA clinical records dated subsequent to the VA examination, which do indicate the presence of TIAs. With regards to the contended psychiatric disorder, the Veteran was afforded a psychology examination in September 2010. In the associated report, the Veteran was diagnosed as having adjustment disorder and somatoform disorder. The complaints of "depression" were noted and associated with the diagnosed adjustment disorder. The examiner stated that, although in a colloquial sense the Veteran reported symptoms of "depression" and had done this subsequent to his service-connected hamstring injury, there was no assessment of major depressive disorder. No discussion as to the potential existence of a direct linkage between a current psychiatric disorder and service was made. The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has determined that a claim for benefits is one for symptoms associated with present chronic disorders (as opposed to specifically identifiable diagnostic entities). See Clemons v. Shinseki, 23 Vet. App. 1 (2009). That is, when a Veteran files a service connection claim for "depression," VA adjudicators must consider all psychiatric manifestations when adjudicating the claim. In the current case, the Veteran was diagnosed as having adjustment disorder with depressed mood. In 1994, the Veteran was prescribed antidepressants after treatment for his service-connected hamstring injury. The 2010 examiner noted that depressed mood was "a secondary consideration" at that time, and that it was related to the experience of pain in the service-connected muscle which did not arise to the level of major depression. The examiner also noted that there were current depressive symptoms associated with financial hardship, job loss, and marital problems. As noted, no discussion was made to a potential direct relationship to service, and except for stating that major depressive disorder was not present, the psychologist was not clear as to whether any acquired psychiatric disability was related to service-connected disorder. The 2010 VA examination focused solely on the Veteran's service-connected hamstring injury and his need for antidepressant medication in 1994. The Veteran, in filing his initial claim for benefits, contended that the entirety of his service-connected disability picture contributes, either causally or by aggravation, to a chronic psychiatric illness. The examiner should describe whether service-connected GERD, bilateral carpal tunnel syndrome, tinnitus, left sciatic nerve contusion, chondromalacia of the left knee, rectal polyps, scars, dermatitis, and hemorrhoids, either individually or in some combination, cause or, alternatively, aggravate beyond the natural course of the disease process, a current psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA neurological treatment records for the Veteran, to include any EMG studies performed by VA in concert with the 2010 examination (should they be available). Associate copies of these records with the claims file. If no such records exist, annotate the claims file to reflect this. 2. Schedule the Veteran for a VA psychiatry/psychology examination. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability, to include adjustment disorder with depressive features, somatoform disorder and/or depression, was caused or aggravated, in whole or in part, by any service-connected disability (to include a combination of service-connected disabilities), to include GERD, bilateral carpal tunnel syndrome, tinnitus, left sciatic nerve contusion, chondromalacia of the left knee, rectal polyps, scars, dermatitis, and hemorrhoids. Alternatively, the examiner should provide an opinion as to whether it is at least as likely as not that any current psychiatric disability had causal origins in active service. The examiner is reminded that the claims file, to include all private records, service treatment records, and VA records, must be reviewed, and that a rationale must be associated with all conclusions reached. 3. After conducting any additional indicated development, re-adjudicate the issues on appeal. If the claims remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative and forward the case to the Board for final adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs