Citation Nr: 1300924	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  06-15 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection to diabetes mellitus, to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  New and material evidence was found therein to reopen a previously denied claim of entitlement to service connection for diabetes mellitus.  However, the denial of service connection was confirmed and continued.  The Veteran appealed this determination.

In September 2007, the Board also found new and material evidence to reopen the Veteran's previously denied claim.  A remanded for additional development was directed with respect to service connection.  The Board ultimately denied service connection in May 2009.  

The Veteran, through his attorney, and VA's Office of General Counsel filed a Joint Motion for Remand (Joint Motion) regarding the Board's decision with the United States Court of Appeals for Veterans Claims (Court) in December 2009.  The Court issued an Order granting the Joint Motion later that month.  The May 2009 Board decision thus was vacated and this matter returned to the Board for further consideration.

In February 2011 and in April 2012, the Board remanded this matter for additional development.  This development fully or at least substantially has been completed.  Adjudication accordingly may proceed if otherwise in order.  See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," no potential problems with adjudication have been identified.  The following determination accordingly is made.  Please note this appeal has been advanced on the Board's docket.  See 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).  



FINDING OF FACT

The Veteran has diabetes mellitus type I which is not related in any manner to his service.


CONCLUSION OF LAW

The criteria for establishing service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159 (2012).

Proper notice from VA must inform the claimant and his representative, if any, of any information and any medical or lay (non-medical) evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  However, there is no error in failing to provide such prior notice when it was not required at the time of the initial AOJ decision.  A content complying notice and proper subsequent VA process instead must be provided in these cases.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None was found by the Board in its May 2009 decision.  None is found by the Board herein.  The Veteran was informed via letter dated in March 2005 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He accordingly was notified of all notice elements then required prior to the initial adjudication by the AOJ, which in this case also is the RO, in August 2005.  Notification of the disability evaluation and effective date elements was provided immediately after the requirement arose to do so.  Specifically, such was accomplished in a letter dated in March 2006 following issuance of the case requiring it.  Proper VA process thereafter was achieved by way of a March 2006 statement of the case and supplemental statements of the case (SSOCs) dated in October 2008, February 2012, and November 2012.  

Even if there had not been proper subsequent VA process, there is no prejudice to the Veteran due to the timing of his notice of the disability evaluation and effective date elements.  No disability evaluation or effective date will be assigned since service connection is denied herein.  Of further note is that, since the March 2005 and March 2006 letters addressed all notice elements, the letters dated in May 2006 and February 2008 as well as the October 2008 and February 2012 SSOCs readdressing some of them went above and beyond what is required.  It follows from the above that the duty to notify not only has been satisfied but has been more than satisfied.

Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of service treatment records and other pertinent treatment records, whether or not they are in Federal custody.  38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. §§ 3.159(c)(1-3) (2012).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §§ 3.159(c)(4) (2012).

The Veteran's service treatment records and VA treatment records, some of which are relevant here, have been obtained.  This was through VA's efforts, him submitting them on his own behalf, or both.  A set of the service treatment records was obtained in compliance with the Board's September 2007 remand.  No pertinent private treatment records have been obtained.  However, the Veteran has not identified any private facility or provider from which it would be possible to obtain such records.  He has identified only one private physician, Dr. P.G., who treated his diabetes mellitus.  It has been indicated both by the Veteran and Dr. P.G. that Dr. P.G.'s treatment records no longer are available.  The Veteran instead submitted a statement and follow-up statement from Dr. P.G. on his own behalf.  He also submitted a private evaluation which, though primarily addressing a condition which is irrelevant here, briefly mentions his diabetes mellitus.

A VA diabetes mellitus examination was performed in March 2003 prior to the start of this matter.  Diabetes mellitus examinations also were performed in June 2008, September 2008, and March 2011.  Addendums were issued with respect to this latter examination report in May 2012 and June 2012.  The June and September 2008 examinations were undertaken pursuant to the Board's September 2007 remand.  While the Board found in May 2009 that these examinations complied with the remand instructions and were adequate, these findings were overruled in the Joint Motion.  The Board's February 2011 remand therefore directed further examination to comply with both its earlier remand and the Joint Motion.  See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that compliance with an Order of the Court extends to the terms of the agreement in a Joint Motion upon which the Order is based).  

Specifically, the examination was to be conducted by an endocrinologist.  The diagnosis rendered was to be adequately supported by a rationale to include discussion of Dr. P.G.'s statement as well as the June and September 2008 examinations.  An endocrinologist conducted the March 2011 examination.  However, the diagnosis made was not adequately supported.  Dr. P.G.'s statement was mentioned, but there was no discussion of it.  The June and September 2008 examinations were not even mentioned.  No other rationale was provided.  As such, the Board's April 2012 remand directed that the same endocrinologist supplement the examination report.  The May 2012 addendum from this endocrinologist once again did not adequately support the diagnosis made.  A rationale was provided, but it did not include discussion of Dr. P.G.'s statement or the June and September 2008 examinations.  Yet the June 2012 addendum from the endocrinologist contained a rationale which included this discussion.  

The diagnosis made thus ultimately was adequately supported.  It follows that the appropriate diagnosis for the Veteran, which as set forth below is the main question necessary to render the determination made herein, has been answered.  As such, there exists an adequate medical examination complete with opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation).

Significantly, neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed.  The record also does not indicate any such development.  The Board thus finds that VA's duty to assist has been satisfied.  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, 16 Vet. App. at 183.  

The duty to notify and the duty to assist both having been met, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Service Connection

Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service  or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a) (2012); 38 U.S.C.A. § 1110 (West 2002).  To establish service connection, there generally must be (1) medical or satisfactory lay evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical or satisfactory lay evidence of a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007).

Service connection also may be established if the evidence of record reveals chronicity or continuity.  38 C.F.R. § 3.303(b) (2012).  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) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Continuity of symptomatology after service is required where a condition is noted during service but is not, in fact, chronic or where a diagnosis of chronicity legitimately may be questioned.  38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997).  

Further, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Service connection is presumed for some diseases even when there is no record of such disease during service if certain circumstances exist.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  The Veteran must have served 90 days or more during a period of war or after December 31, 1946.  38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. § 3.307(a)(1) (2012).  Second, the Veteran must have manifested a chronic disease such as diabetes mellitus to a compensable degree within one year from the date of separation from service.  38 U.S.C.A. § 1101(3), 1112(a)(1) (West 2002); 38 C.F.R. §§ 3.307(a)(2), (3), 3.309(a) (2012).  

Also applicable are the circumstances for presumptive service connection for diseases associated with exposure to an herbicide agent.  First, the Veteran must have served 90 days or more of active service during a period of war or after December 31, 1946.  38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. § 3.307(a)(1) (2012).  Second, the Veteran must have been exposed to an herbicide agent during service.  A Veteran is deemed to have been exposed to an herbicide agent if he served in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975.  38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012); McCartt v. West, 12 Vet. App. 164 (1999).  Third, the Veteran must manifest a particular disease to a compensable degree within a particular time period.  That period is any time after separation from service for type II diabetes (also known as type II diabetes mellitus or adult-onset diabetes).  38 U.S.C.A. § 1116(a)(1)(B)(2) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2012).

Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease or disease associated with exposure to an herbicide agent must be taken into consideration even if the aforementioned circumstances are met.  38 U.S.C.A. §§ 1113, 1153 (West 2002); 38 C.F.R. §§ 3.307(d), 3.309(a) (2012).  Where service connection based on herbicide exposure cannot be presumed, service connection due to such exposure still may be established with proof of actual direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997).  

The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken.  

Lay evidence indeed may be sufficient by itself to support a claim.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  That is the case where the evidence is both competent and credible.  Competency is a legal concept determining whether testimony may be heard and considered whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6. Vet. App. 465 (1994).  

A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of personal knowledge.  Layno v. Brown, 6. Vet. App. 465 (1994).  In weighing credibility, discounting of competent testimony or statements from a lay person may occur in the light of its own inherent characteristics and its relationship to other items of evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  Factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  The Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran prevails when the evidence supports his claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence).  The evidence leads the Board to conclude that service connection for diabetes mellitus is not warranted.  All necessary requirements for establishing entitlement to this benefit are not met.  

A current disability exists when there is a disability when a claim for it is filed or at any time during the pendency of such claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran filed the instant claim in February 2005.  It is undisputed that he has had diabetes mellitus throughout the period from that time to the present.  This has been established in countless VA treatment records and all VA diabetes mellitus examinations dated during that period.  A current disability therefore is conceded.

It also is undisputed that the Veteran served more than 90 days during a period of war after December 31, 1946.  Indeed, his service spanned almost three years.  All were during the Vietnam era.  38 U.S.C.A. § 101(29)(A); 38 C.F.R. § 3.2(f) (both defining the Vietnam era as beginning on February 28, 1961, and ending on May 7, 1975, in the case of a Veteran who served in the RVN during that period).  It finally is undisputed that the Veteran had in-service exposure to an herbicide agent such as Agent Orange.  The military has verified that his service from June 1968 to August 1970 was in the RVN.  Herbicide exposure is presumed during this period because it falls between January 9, 1962, and May 7, 1975.  

The last requirement necessary to establish the Veteran's entitlement to presumptive service connection for diabetes mellitus as a disease associated with exposure to an herbicide agent is that the diabetes be type II.  Whether the Veteran's current diabetes mellitus is type I or type II thus is a crucial issue.  It indeed is the main question now, as it was in the Board's May 2009 decision.  To facilitate the discussion regarding this question, the pertinent evidence first is summarized.

August 1997 VA treatment records reflect a diagnosis of type 1 diabetes made by a nurse practitioner as well as by a physician.  The nurse practitioner noted that this diagnosis was based upon the Veteran's report of having diabetic ketoacidosis when he initially was diagnosed with diabetes mellitus in 1979 as well as upon his diabetic ketoacidosis at that time.  A December 1999 VA treatment record contains a diagnosis of type I diabetes made by a physician.  VA treatment records dated in March and May 2001, when the Veteran was 52 years old, reveal his reports of having had diabetes mellitus "x 30 years."  July 2001 VA treatment records document that the Veteran had another episode of diabetic ketoacidosis.  He reported having been diagnosed with diabetes mellitus in 1979 as well as having had diabetes mellitus for several years.  A physician noted that he had type I diabetes and a medical professional of unidentified credentials noted that he had type I diabetes mellitus.  Finally, VA treatment records dated in August and September 2001 show both that the Veteran reported having had diabetes mellitus "x 30 years" as well as having been diagnosed with it in 1979.

A December 2001 psychiatric evaluation includes the Veteran's report of having been diagnosed with adult onset diabetes in 1979.

The examiner who conducted the February 2003 VA diabetes mellitus examination, a physician, reviewed the Veteran's claims file and medical records.  This included laboratory test results.  The examiner then interviewed the Veteran, who indicated being diagnosed with diabetes mellitus in 1979 at the age of 31.  He also indicated that he took oral medication for several months before he began using insulin.  The Veteran's history of diabetic ketoacidosis was noted.  Following a physical assessment, the examiner diagnosed diabetes mellitus and indicated the following:

It is somewhat difficult to ascertain whether the [Veteran] is a true type 2 diabetic, as he was relatively young at outset and only briefly was able to remain on oral agents before requiring insulin therapy.  However, it is possible that he had undiagnosed diabetes for some time prior to his formal diagnosis in 1979, but his admission for diabetic ketoacidosis and blood sugars in the range of 800 seem to be more consistent with type I diabetes.

October 2004 VA treatment records include the indication from a nurse practitioner that the Veteran is a type 1 diabetic.  The nurse practitioner noted that this diagnosis was based upon "documented pos islet cell atb and C peptide < 0.5."

Private Dr. P.G., who practices in the field of family medicine, recounted in a December 2004 letter that he treated the Veteran in the 1970's when he became symptomatic for diabetes.  Dr. P.G. further recounted having diagnosed the Veteran as a type II diabetic at that time and placing him on an oral medication.  It was noted by Dr. P.G. that there was satisfactory initial control but subsequent loss of control with this medication.  Dr. P.G. finally stated that the Veteran did not have a family history of diabetes, did not suffer from ketoacidosis, and presented with a relatively elevated blood sugar at the time of his diagnosis.

In a May 2005 statement, Dr. P.G. reiterated that he diagnosed the Veteran with diabetes mellitus II.  Dr. P.G. additionally noted that "to his recollection" this diagnosis was made prior to January 1, 1977.  Dr. P.G. finally reiterated that the Veteran was not in ketoacidosis then as well as that his diabetes initially was controlled by oral mediation and diet.

The Veteran indicated in an October 2005 statement that he was diagnosed with diabetes in the 1970's when he was approximately 30 years old.  He noted that he did not have a family history of diabetes and also that he was not diabetic during service.

A staff physician conducted the June 2008 VA diabetes mellitus examination.  This examining staff physician reviewed the Veteran's claims file and medical records, which included extensive laboratory tests.  The examiner also interviewed the Veteran, who indicated that he had been diagnosed with diabetes mellitus in 1979.  Following a physical assessment, the examiner opined that diabetes type I was the correct diagnosis.  The examiner finally indicated the following in this regard:

Given the Veteran's age at diagnosis, BMI, low c-peptide, positive islet cell antibodies, positive anti-GAD-65, the evidence clearly supports a diagnosis of [t]ype I at this point.

The September 2008 VA diabetes mellitus examination was conducted by a registered nurse.  This examiner nurse reviewed the Veteran's claims file and medical records.  The Veteran also was interviewed.  He stated that he was diagnosed with diabetes in June 1978 at the age of 30.  Following a physical assessment as well as laboratory testing, the examiner opined that the Veteran has diabetes type 2.  Yet the examiner then clarified as follows:

Veteran's claim (sic) file indicated that he was diagnosed with diabetes type 2.  The Veteran was initially diagnosed with type 2 diabetes and treated with medication which was effective, however, Veteran now requires the use of insulin.  Base (sic) on the literature type 1 diabetes usually occurs before the age of 30, but can occur at any age.  The patient who has a diagnosis of type 1 diabetes is usually thin and requires exogenous insulin and dietary management.  The Veteran reported that he has never been overweight, therefore, he most likely has type I diabetes, however, the Veteran was also on oral hypoglycemic agents to control his diabetes when he was first diagnosed.  Base (sic) on this, I am unable to determine whether the Veteran is a type II diabetic whose condition has progress (sic) to where he needs insulin.  I can not (sic) resolve this issue without resorting to mere speculation.

In a January 2009 statement, the Veteran indicated that he was diagnosed with diabetes by Dr. P.G. in 1978 at the age of 30.  He reiterated that he did not have diabetes during service.  He further noted showing no indication of diabetes as a child.  The Veteran contended it is unfair to award RVN Veterans who are obese compensation for diabetes mellitus, as obesity liked caused the disease rather than herbicide exposure, and not award him compensation for diabetes mellitus when he has kept himself at a healthy weight.  Lastly, he pointed out that, even though type I diabetics generally are insulin dependent and type II diabetics generally are treated with oral medication, research and his treatment providers indicate that even type II diabetics can become insulin dependent.

The March 2011 VA diabetes mellitus examination was conducted by an endocrinologist, as noted above.  This examiner reviewed the Veteran's claims file and medical records, which included laboratory test results.  Mention was made of Dr. P.G.'s December 2004 statement.  The Veteran also was interviewed.  He stated that his diabetes first manifested in 1978, that he was treated with an oral agent for the first six or seven months, and that he thereafter was placed on insulin.  Following a physical assessment, the examiner opined that the Veteran has diabetes mellitus type 1.  The evidence in support of a diagnosis of diabetes mellitus type 2 and type 1 was set forth.  For type 2, the evidence included diagnosis as an adult at the age of 30 and initial treatment with an oral hypoglycemic agent.  For type 1, the evidence included a body habitus history negative for obesity, the relatively young age of onset though the Veteran was an adult, no family history of diabetes mellitus, the relatively quick transition between diagnosis and commencement of insulin therapy, the history of at least two episodes of diabetic ketoacidosis, low C peptide, and the presence of laboratory markers of autoimmunity against the pancreas like positive GAD and islet cell antibodies.  Ketoacidosis episodes were noted to be much more common in patients with type 1 diabetes.  The laboratory markers were noted to reflect the underlying cause of diabetes mellitus type 1.

Review of the Veteran's claims file and chart again was undertaken by the endocrinologist in preparing the May 2012 addendum.  This examiner noted literature indicating that the presence of the aforementioned laboratory markers are most consistent with an autoimmune etiology for diabetes which in turn is consistent with type 1 but not type 2 diabetes.  That ketoacidosis episodes are much more common in patients with type 1 diabetes was reiterated.

Review of the Veteran's claims file was undertaken by the endocrinologist for a third time in preparing the June 2012 addendum.  Dr. P.G.'s December 2004 statement and the 2008 examinations first were summarized.  The examiner next noted that the Veteran is treated as a patient with diabetes mellitus type 1 in VA's endocrine clinic.  Then, the examiner noted that patients diagnosed with diabetes mellitus in adulthood predominantly have type 2 diabetes but that some have diabetes mellitus type 1.  It also was noted that while most patients with diabetes mellitus type 1 are treated with insulin upon diagnosis, many patients with diabetes mellitus type 1 are treated with oral agents but shortly thereafter require insulin.  In the Veteran's case, the examiner reiterated that this and the other evidence overwhelmingly favors a diagnosis of type 1 diabetes mellitus.  The examiner finally commented on the previous diagnoses made by Dr. P.G. and the 2008 examiners.  The June 2008 examiner's diagnosis was noted to be correct.  That a conclusive diagnosis could not be rendered in September 2008 was attributed to the examining nurse's lack of expertise.  That Dr. P.G. initially thought the Veteran had type 2 diabetes was noted to be understandable particularly in light of his age at that time and the initial control with an oral agent.  Yet it further was noted that the type of diabetes should have been questioned in light of the rapid progression to insulin therapy and lack of a family history of diabetes.  In sum, the examiner determined that the Veteran's clinical course and laboratory findings subsequent to his initial diagnosis of type 2 diabetes mellitus show that it was incorrect.

In sum, the Veteran clearly believes he has diabetes mellitus type II.  All VA treatment records convey that he has diabetes mellitus type I.  All VA examiners with the exception of the September 2008 examiner opined or at least gave some indication that he has diabetes mellitus type I.  Dr. P.G. opined that the Veteran had diabetes mellitus type II.  

The Board's May 2009 decision pointed out that Dr. P.G.'s opinion concerns the Veteran's diabetes type in the 1970's rather than his current diabetes type.  It is reiterated that all that matters is his diabetes type from February 2005 when the instant claim was filed to present.  Yet it readily is inferred that the medical professionals involved in this case, in addition to the Veteran, have operated as if the type of diabetes manifested by an individual does not change over time.  The only potential indication to the contrary is the June 2008 examiner's finding of clear support for a diagnosis of type I diabetes mellitus "at this point."  Use of this phrase could indicate that the Veteran has type I diabetes mellitus now but may have had diabetes mellitus type II earlier.  Yet it also could indicate the examiner's recognition that the evidence now clearly supports a diagnosis of type I diabetes mellitus whereas the evidence in support of such diagnosis before was not as clear.  This latter interpretation is found to be more likely, as it places the examiner in alignment with all the other examiners and medical professionals.  Further, the June 2008 examination did not cite any source for the proposition that the type of diabetes manifested by an individual can change over time.  At no point has anybody involved in this case cited any source for this proposition.  The Board, as it is prohibited from rending its own opinion on medial questions, accepts it.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991).

There is no indication that the Veteran has medical knowledge, training, or experience, and thus he is a lay person.  A lay person is competent to diagnose a condition only when (1) the lay person is competent to identify the medical condition, (2) the lay person 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 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Conditions such as flat feet, certain skin ailments, tinnitus, and varicose veins are examples of conditions a lay person is competent to identify.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995).  Diabetes mellitus, and thus particularly the type of diabetes mellitus, is not such a condition.  The Veteran's belief that he has diabetes mellitus type II rather appears to be based on the fact that Dr. P.G. made this diagnosis.  

The probative value assigned to Dr. P.G.'s opinion as to the Veteran's appropriate diagnosis, as well as the opinions regarding diagnoses rendered by other medical professionals, therefore is of primary import.  Factors to consider in assessing the probative value of a medical opinion include a physician's access to the claims file or other pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  

Dr. P.G.'s opinion does not carry much probative value.  Dr. P.G.'s qualifications and expertise are not questioned because he is a physician.  His opinion was expressed with certainty.  However, it was not based upon a review of the claims file.  It indeed was not based upon a review of any records or documentation whatsoever.  There was no claims file when Dr. P.G. diagnosed type II diabetes mellitus in the 1970's, but there would have been treatment records and also likely would have been laboratory test results.  Dr. P.G. indeed examined the Veteran, presumably with adequate scope, as his care provider.  Yet the records and results of such examinations now are not available for review.  As such, Dr. P.G. himself conceded that his opinion was based solely on his recollection.  It cannot be ignored that this recollection was of one patient from 25 years or more prior thereto.  Little rationale is provided for Dr. P.G.'s opinion, as discussed in the Board's May 2009 decision.  It is not sufficient to state that type II diabetes mellitus is supported by the Veteran's initial response to oral medication and initial lack of ketoacidosis episodes.  Why this evidence points toward type II rather than type I diabetes mellitus must be explained because, as set forth above, the Board is not in a position to make medical determinations.  Finally, not all of the evidence identified as relevant by the medical professionals as a collective was considered.  There was no reference to body habitus, low C peptide, laboratory markers of autoimmunity against the pancreas, and eventual episodes of ketoacidosis, for example.  It thus cannot be said that the opinion was the most thorough and detailed of those rendered.

The opinions of the February 2003, June 2008, and September 2008 examiners also do not carry much probative value.  Many of the aforementioned factors are not problematic in regard to these opinions.  Yet at least one factor is particularly problematic for each.  The February 2003 examiner used equivocal instead of certain language in formulating an opinion.  The opinion indeed was not that the Veteran has type I diabetes mellitus, only that the evidence "seemed" to be supportive of this diagnosis.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bostain v. West, 11 Vet. App. 124 (1998) (collectively holding that language such as "it is possible," "it is within the realm of medical possibility," "could not rule out," "could have been," "may or may not," "may have," and similar generic statements is insufficient).  The June 2008 examiner, like Dr. P.G., provided little rationale for the opinion rendered.  Also like Dr. P.G., this examiner did not consider all the evidence that has been collectively identified as relevant.  There was no reference to the Veteran's lack of a family history of diabetes mellitus, the relatively quick transition between diagnosis and his need for insulin therapy, and his eventual episodes of ketoacidosis, for example.  It thus once again cannot be said that the opinion was the most thorough and detailed of those rendered.

With respect to the opinion of the September 2008 examiner, an examiner's conclusion that an opinion is not possible without resort to speculation is a medical conclusion just as much as a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  Reliance can be placed on a conclusion that an etiology opinion is not possible without resort to speculation if it was made after consideration of "all procurable and assembled data" and the basis for it is provided or otherwise be apparent from a review of the record.  Id.  These requirements are met here.  The examiner reviewed the Veteran's claims file and medical records.  The basis was stated in that it was indicated that there is some evidence supportive of a diagnosis of type I diabetes mellitus and some evidence supportive of a diagnosis of type II diabetes mellitus.  However, the examiner was a registered nurse.  The examiner therefore lacked the necessary expertise to determine the type of diabetes mellitus the Veteran has, as noted by the March 2011 examiner.

That leaves the opinion of the March 2011 examiner, supplemented by the May and June 2012 addendums.  This opinion carries substantial probative value.  The examiner is most qualified and has the most expertise of all the medical professionals involved because he is not only a physician but a physician specializing in endocrinology.  It is well known that diabetes mellitus is a disease involving the endocrine system.  The opinion provided by the examiner was expressed in certain terms.  It was based on review of the Veteran's claims file, which included all previous opinions as to diagnosis, and medical records or chart.  It further was based on examination of him.  No deficiency regarding the scope of this examination is evident.  In light of these bases for the opinion, there is no indication of any inadequate factual premise.  The examiner's opinion was the most thorough and detailed of record given that it involved consideration of all evidence collectively identified as relevant.  A rationale for the opinion was provided by the examiner in that it was explained why some evidence points to a diagnosis of diabetes mellitus type I and some to a diagnosis of type II but the majority points toward the former.  Further, the previous opinions were considered in that reasons for this examiner's agreement or disagreement with them were noted.  

For the above reasons, the probative value of the medical opinions as a whole is significantly in favor of a finding that the appropriate diagnosis for the Veteran is diabetes mellitus type I as opposed to diabetes mellitus type II.  The VA treatment records, which were authored by a variety of medical professionals to include physicians and nurses, also favor this finding.  Therefore, the Veteran is found to have diabetes mellitus type I notwithstanding is incompetent indications to the contrary.

Diabetes mellitus type I is not listed as being associated with exposure to an herbicide agent during service, unlike diabetes mellitus type II.  VA has determined that there is no positive association between herbicide exposure and any condition that is not specifically listed or for which it has not been determined should be so listed.  Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002).  Presumptive service connection for diabetes mellitus as a disease associated with exposure to an herbicide agent therefore is not established.  

Regarding general service connection, service treatment records are silent for mention of diabetes mellitus.  Neither the Veteran nor his representative has contended that he had diabetes mellitus during service despite the lack of a diagnosis thereof.  The opposite indeed has been contended by the Veteran.  No medical evidence supports a finding of in-service incurrence of his diabetes mellitus though it was diagnosed post-service.  The in-service incurrence of a disease therefore is not found.  However, the Veteran's presumed in-service herbicide exposure constitutes the incurrence of an injury.  There nevertheless is no satisfactory evidence of a nexus between the Veteran's current diabetes mellitus and his in-service herbicide exposure.  No medical professional has rendered an opinion that such a nexus exists.  To the extent the Veteran believes such a nexus exists, he is not competent.  

Competent medical evidence is not necessarily required when the determinative issue involves medical etiology.  It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Yet the question of whether there exists a nexus in this case is medical in nature.  Of note in this regard are the fact that a lay person is not competent to identify and thus to diagnose diabetes mellitus, the numerous potential causes of diabetes mellitus, and the number of years since the Veteran's separation from service.  Only those with medical knowledge, training, or experience therefore are competent to opine as to nexus.  Jones v. West, 12 Vet. App. 460 (1999).  It follows that, as a lay person without such knowledge, training, or experience, the Veteran is not competent to render an opinion that the required nexus exists.  Cromley v. Brown, 7 Vet. App. 376 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  

Given the lack of diabetes mellitus during service, there can be no chronicity or continuity of symptomatology.  All that remains for consideration thus is presumptive service connection for diabetes mellitus as a chronic disease.  Neither the Veteran nor his representative has asserted this as a theory of entitlement.  Yet some VA treatment records dated in 2001 prior to the filing of the instant claim contain the Veteran's reports of having diabetes mellitus "x 30 years."  These records could be construed as his indication of receiving a diabetes mellitus diagnosis 30 years prior to 2001, or in approximately 1971.  The months from January through September 1971 fall within the one year presumptive period following separation from service allotted for manifestation of diabetes mellitus to a compensable degree.  

The aforementioned VA treatment records are construed to mean that the Veteran was diagnosed with diabetes mellitus when he was around 30 years old rather than that he had had such a diagnosis for 30 years.  No other evidence supports an onset immediately following the Veteran's separation from service.  He indeed has indicated onset of his diabetes mellitus in 1978 or 1979, approximately eight or nine years following his separation from service and around the time he turned 30 years old.  He is competent in this regard because such an event is within his personal experience.  He also is credible because no reason is found to doubt him.  The Veteran's indications regarding his first diagnosis of diabetes mellitus have been consistent with one another.  They are not in total agreement with the other evidence, but this is inconsequential here.  Dr. P.G. recollected onset a bit earlier at prior to January 1, 1977.  Yet he did not provide more specifics.  It thus cannot be said that he recollected onset sometime in 1971 over five years before 1977 began.

In sum, the preponderance of the evidence is against service connection for diabetes mellitus under all applicable theories of entitlement.  Therefore, the benefit of the doubt rule is inapplicable and service connection is denied.  The Board is sympathetic to the Veteran's argument that it is unfair to deny him service connection for diabetes mellitus  when he is of a healthy weight while granting service connection to other RVN Veterans for diabetes mellitus when they are obese.  However, the Board is constrained to follow the law and lacks authority to grant the Veteran the benefit he seeks on an equitable basis.  See 38 U.S.C.A. § 7104(c) (2012).


ORDER

Service connection for diabetes mellitus is denied.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs