Citation Nr: 1305571 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-41 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from December 4, 1981, to August 31, 1998, with 3 years, 3 months and 21 days prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. On November 27, 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the electronic folder. FINDINGS OF FACT 1. The Veteran's diabetes was first manifested after service by high glucose readings in August 2008 with formal diagnosis made in November 2008; it is not otherwise attributable to his period of active service. 2. The diabetes was not caused by or made worse by the Veteran's disability of the lumbar spine with radiculopathy. CONCLUSION OF LAW The Veteran does not have diabetes mellitus that is the result of disease or injury incurred in or aggravated by active military service or is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110 , 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in July 2009 and October 2009 from the RO to the Veteran, which were issued prior to the RO decision in January 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. Although the Veteran indicated at his November 2012 hearing that he would attempt to obtain a favorable medical opinion from a private medical provider, he did not do so and has not requested VA to further delay adjudication for such evidence. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. A VA medical opinion was obtained with claims file review. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion obtained is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). It was conducted by a medical professional who reviewed the medical records and provides the information necessary to decide the claim. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The Veteran claims that service connection is warranted for diabetes mellitus as secondary to his service connected lumbar spine disability of lumbar strain with herniated nucleus pulposus (HNP) L3-4 and radiculopathy resulting in foot drop and callus of the left foot. He specifically argues that these disabilities, particularly the problem involving the left foot, have precluded exercise, resulting in his having developed diabetes due to weight gain. He neither alleges, nor does the evidence reveal that diabetes began during service or within a year of discharge from active duty. Of note the service treatment records showed repeated instances where he denied a history of diabetes on reports of medical history. This was so in a January 1978 preliminary physical review, June 1980 examination, and in records addressing weight loss attempts, including in February 1989 and June 1990. Endocrinology findings were noted to be normal at the June 1980 examination and subsequent periodic examinations throughout service. Glucose readings throughout service, including February 1990, April 1991, October 1995 and January 1997, were normal. In March 1998, his records were reviewed and it was determined that a physical examination was not needed for separation or retirement. He is shown in the service treatment records to have repeatedly had issues with his weight being too high, with his weight roughly shown to be around 200 pounds with his height at 5 foot 6 inches. Records showed his weight management included calorie restrictions (between 1200 and 1500 calories per day) and exercise in November 1983, February 1989, October 1990, June 1990, June 1991, May 1992, March 1993, July 1997 and March 1998. His exercise was noted to include running two and a half miles per day in June 1990. He was noted to have previously exercised but discontinued due to his work shift as noted in June 1991 when he sought dietary advice. A July 1997 note revealed that he was doing well riding his bicycle and also was working out in a gym, with the treating medical provider cautioning him against "overdoing it." A May 1998 physical profile for lumbar radiculopathy indicated that the Veteran was limited on lifting and PT until August 1998, but could walk and run at his own pace. The service treatment records reflect that he had back problems dating back to 1989, with recurrent episodes of back pain with left L5 radiculopathy shown in May 1998. He also had issues with plantar calluses noted bilaterally on an October 1995 periodic examination, with a left foot callus diagnosed in March 1998, which was described as painful when walking barefoot, and self treated by shaving it down. The post service records document long term problems involving the service connected lumbar spine disability with radiculopathy and resulting callus from the left foot drop. The VA records from 2005 show that in July 2005 the Veteran was diagnosed with obesity with a body mass index (BMI) above 40. He was advised to go on a low fat diet and to have regular exercise and lose weight. His weight at the time was 256.3 pounds and he was 67 inches tall. He was noted to have chronic low back pain and numbness of the left foot. He was also noted to have foot calluses with the left foot one hurting as it was on the sole. Plans included referring the Veteran to podiatry, which assessed him with a pressure callus. VA treatment records through 2006 and 2007 showed continued issues with low back pain and foot drop, which in June 2006 was said to have been of 8 years duration, but had been getting worse for the last couple months. He had constant numbness since his back injury. The pressure callus was again noted in a podiatry note of January 2007, along with metatarsalgia. In November 2007, he continued to have left foot pain on walking only with the callus trimmed by podiatry, which helped much. Laboratory findings throughout 2006 and 2007 were negative for any results suggestive of diabetes or hyperglycemia. In March 2008, the Veteran was noted to be gaining weight. The medical history regarding his back and foot drop was the same as reported in June 2006. At the time his weight was up to 272 pounds. Laboratory results from March 2008 yielded an assessment of hyperglycemia with weight gain/obesity. He was advised to diet to lose weight. The VA examinations of June 2008 for the spine and foot revealed the Veteran to be diagnosed with a myofascial lumbar syndrome with intermittent left lower radiculopathy that resulted in a foot slap when he ambulated. The callosity on the plantar aspect of the left foot was further addressed by the foot examination, which noted that all weightbearing activities were painful due to the callus. He was noted to have shaved the callus, which helped somewhat. His functional limitations were walking short distances and standing for short periods of time due to pain from this callus. Examination revealed the callus to be extremely tender. The callus was confirmed to result from the foot slap due to his spinal disc condition. Private records from 2008 confirmed a diagnosis of morbid obesity, with an August 2008 record describing him to be morbidly obese by 109 pounds. He was to be put in a progressive exercise with an exercise schedule, according to a print out accompanying the August 2008 record. Laboratory readings indicated elevated glucose levels, including an August 2008 reading of 126. In November 2008, he was diagnosed with diabetes mellitus, new onset. He was described as having uncontrolled diabetes in another note from November 2008, which noted that he had stopped taking some of his medications. He was not taking Pristig, Lisinopril, Soma or Lexapro for about a week. His blood glucose continued to be elevated in May 2009, and in December 2009 he reported an 11-year history of a callus on his left foot. A December 2009 VA examination for left lower extremity radiculopathy and foot slap/callus revealed functional findings of weakness after prolonged use of the left foot and ankle on a daily basis. He started the day with good strength but as the day went on his weakness of the foot and ankle became noticeable. By the time he got home from work in the evening, he had weakness and discomfort in the left foot and ankle. It was noted that he recently walked 1/2 mile and noticed weakness afterwards. He was noted to not have increased limitation with repetitive use of the spine, although he had some flare-ups with pain. The left leg and foot had some increased limitations with repetitive use due to fatigability and weakness. The callus was described as being painful every day as he walked on it, although it was helped briefly with shaving by a podiatrist. The callus caused some foot pain on the job, with limitations on standing as a combination of foot and ankle weakness and the pain of the callus. Examination revealed he was morbidly obese, at 5 foot 7 inches and 270 pounds. While there was no evidence of muscle weakness, sensory impairment and no foot drop or limp that was noted on examination, the electrodiagnostic studies were interpreted as showing a left L-4 radiculopathy. A large tender callus was noted on the left foot, and this was the only tenderness noted on examination. The impression was left foot second metatarsal painful callus related to clawing of lesser toes and obesity. In June 2010, VA obtained an opinion regarding the Veteran's diabetes as it related to his service-connected back and left foot disorders. The Veteran claimed that he was diagnosed in 2009 with diabetes, which was caused by his chronic low back pain and callused foot. According to the Veteran, these disabilities prevented him from exercising; thus he became obese and this caused his diabetes. The claims file was reviewed. He was noted to be service connected for chronic low back pain and left foot callus. His diabetes was reportedly diagnosed in 2009. He was treated with glyburide and metformin. He had other medical complications including coronary disease, hypertension and hyperlipidemia. He weighed 270 pounds, with a height of 67 inches. His BMI was 43, which equaled super-obesity. The examiner noted that obesity was strongly associated with the development of diabetes mellitus. However obesity was not always accompanied by diabetes. The examiner noted that diabetes develops in non obese individuals, including being more common in women, certain ethnic groups and even in some families. The examiner pointed out that research had shown that most obese persons have lost control of their eating, thus obesity results from a lack of exercise in the face of overeating. The examiner gave an opinion that the Veteran's diabetes was not due to his chronic back pain and/or his painful foot callus. The rationale was that there were many types of alternative exercises available to the Veteran if he wished to do this. Thus his obesity was not an inevitable result of his disabilities mentioned above. It was reasonable to say that he could have exercised more and eaten less. Thus it was unlikely that his chronic low back pain and painful callus led to his diabetes. An October 2010 VA examination of the spine is noted to have described this condition as only resulting in a moderate effect on his usual occupation and activities of daily living. It indicated that the Veteran could walk about a mile, and for a duration of 15-20 minutes without ambulatory devices. His range of spinal motion was noted to be full with pain but no fatigue, weakness, lack of endurance or incoordination. He did have weakness of the left ankle of 4/5 with otherwise normal muscle strength. VA records from October 2010 reveal that the Veteran admitted to having poor eating habits such as not eating 3 meals a day, eating white rice and canned foods and eating large portions. Discussions focused on changing his eating habits. He complained about the callus on the bottom of his left foot making it painful to walk. He indicated that he was seeing a podiatrist for a shoe insert. He was introduced to a "sit and fit" series. He said he would try to walk 10-15 minutes after dinner. Another October 2010 routine follow-up described the Veteran as having back pain flare up a couple weeks earlier, but that it resolved with medication. He admitted not checking his blood sugars, indicating that "I'm just too lazy, I think." He said he was exercising a "little bit," walking once or twice a week. He was assessed with obesity, low back pain reported by MRI as degenerative disc disease (DDD) and hyperglycemia with diagnosis of diabetes by outside doctor. In January 2011 the Veteran was seen at VA for history and physical for excisional biopsy of left foot mass, which he had since 1998. In the past, he thought it was a callus and cut it, but it grew back. He reported pain on stepping on it and with walking. The history of this mass developing as a result of his back injury and left lower extremity foot drop was noted. He underwent surgical excision of the mass in February 2011, again with the callus described as affecting physical activity and walking. The mass was shown on pathology to be a benign plantar fibromatosis. Also in February 2011 he was seen requesting a consultation referral to the diabetic clinic, as he did all the cooking and wanted to discuss the process with a diabetic nurse. Other records from February 2011 showed that he was not taking his medications regularly and the consequences of such noncompliance were discussed at length, as well as the importance of following diet and following instructions. His A1C findings were noted to confirm the diagnosis of diabetes and he was told that his diabetes test was over goal, again with compliance with medications stressed. By March 2011, he was noted to be status post excision of the plantar mass with his pain well controlled since day 2 of the surgery. He was noted to have no evidence of complications or infection. His surgical wound on the left foot was well healed by April 2011. In May 2011 he was advised about the importance of a low fat, low carbohydrate diet. In September 2011, the Veteran was seen for a lipid clinic check with his nutrition status described as mildly compromised. His weight was between 270-275 pounds. His diet was causing the most concern about lipid control. He previously tried to lose weight by stopping sodas and eating out less. He skipped breakfast often and brought chocolates and candies to snack on at work. He ate out daily for lunch at fast food restaurants. His diet included red meat and fast foods, including Chinese food and buffets. He admitted trouble passing up desserts. At dinner he usually ate out or made something quick like 2 packs of Ramen noodles mixed with canned corn or peas. He also drank regular and diet sodas. He blamed stress and family tension for his bad eating habits. His physical activity was minimal, saying it was hard to exercise currently due to work and family schedule. He was diagnosed with undesirable food choices. He was counseled that control of his diabetes was worsening due to his recent changes in his diet with increased soft drinks and candy and that he was looking at needing insulin if his A1C remained above 8. The Veteran agreed to work on his diet and exercise. Planned action included dietary changes and walking 10 to 15 minutes per day as tolerated by the callus on his left foot. He also was noted to have frequent back pain too. Another note from September 2011 indicated that he was not checking his blood sugars and was not following a diabetic diet due to working a lot. Also in September 2011 he was noted to report back pain at a 5/10 intensity, that increased with movement and decreased with rest. On follow-up at the lipid clinic in December 2011 he was noted to exercise, walking a half hour daily, but still ate out daily at lunch. He ate red meat, but claimed to avoid fried and high fat foods. He still ate fast food three times a week, most recently Chinese. His diabetes was described as well-controlled. His A1C was at goal. He had cut down his food portions and changed to whole grains. He also cut out candy, frappicinos and sodas. On follow-up in April 2012 he was told to work on his diet and exercise, and still had lifestyle risk factors of eating out daily for lunch at fast food and other restaurants. His foods included Chinese food, tacos, and McDonald's chicken sandwiches. His food choices were discussed as contributing to elevated TG levels and he was counseled about healthier choices. The Veteran testified at his November 2012 hearing that he had training as an EMT in service, with training in anatomy and physiology, more so than the average lay witness. He contended that his diabetes was due to his service-connected back disorder and callus making him unable to exercise. He said that when the callus was removed he began to exercise and had a recurrence of low back pain lasting 3-4 months between July 2011 and October 2011. He noted that he did not get diagnosed with diabetes until 2008 but was already gaining weight. He indicated that he monitored his blood sugars from the upper 90's to lower 120's. He said that his private family practitioner no longer had his records. He indicated that he would attempt to get a private endocrinologist to review his records and provide an etiology opinion. III. Analysis Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a claimant must show: "(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); Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for a "chronic disease," such as diabetes mellitus, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The law also provides that service connection may be granted for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Also, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). In view of the evidence of record, the Board finds that the preponderance of the evidence is against granting service connection for diabetes mellitus. Again as previously pointed out, there is no evidence of diabetes shown in service, or within the post-service presumptive year, and the Veteran has not argued entitlement to service connection on a direct or presumptive basis. Thus, the matter turns on whether the Veteran's service-connected lumbar spine disability with radiculopathy resulting in foot drop and callus of the left foot either caused or aggravated his diabetes. The premise upon which this causation or aggravation is based is that the service-connected disability, particularly that involving the left foot callus, have rendered the Veteran unable to exercise, resulting in his having developed diabetes due to weight gain. Here the more persuasive medical evidence reflects that the Veteran is not precluded from exercising due to his service-connected disability. The VA medical opinion obtained in June 2010 stated that the Veteran's diabetes was not due to his chronic back pain and/or his painful foot callus. The rationale was that there are many types of alternative exercises available to the Veteran if he wished to do this. Thus, his obesity was not a result of his service-connected disabilities, and it was reasonable to say that he could have exercised more and eaten less. The examiner found that it was unlikely that his chronic low back pain and painful callus led to his diabetes. This opinion is supported by the medical evidence showing the Veteran's diet and lifestyle was unsuitable from a diabetic standpoint as discussed by the lipid clinic follow-ups discussed above. This included the lipid clinic follow-up in September 2011 when he was diagnosed with undesirable food choices and was advised that control of his diabetes was worsening due to his recent changes in his diet with increased soft drinks and candy. Other factors shown to be affecting his diabetes included evidence of the Veteran not adequately monitoring his blood sugars in October 2010 and not taking his medications as instructed in February 2011. Further the medical records reflect that he was strongly urged to exercise and alternatives to weight bearing exercise were presented to him. No medical evidence has been presented to contradict such findings, other than the contentions from the Veteran who has had some limited medical training in his capacity as an EMT. In regards to the Veteran's assertion that he is unable to exercise due to his service-connected disabilities of the lumbar spine and left lower extremity (including foot), the Board is not persuaded that this has been the case. Indeed, the Veteran's post- service records contain reference to exercise during the time in which he claimed to be incapable of doing so. This includes an August 2008 record that described him as morbidly obese and indicated that he was to be put in a progressive exercise schedule. This also includes a December 2009 VA examination for left lower extremity radiculopathy wherein the Veteran was noted to have recently walked 1/2 mile although he noticed weakness afterwards, and he also reported increased fatigue with the left foot at the end of a work day. Findings from the December 2009 examination were noted to show normal muscle strength. The callus was described as resulting in some foot pain on the job, with limitations on standing as a combination of foot and ankle weakness and the pain of the callus. Nevertheless, there was no evidence of muscle weakness, sensory impairment and no foot drop or limp that was noted on examination, despite the electrodiagnostic studies being interpreted as showing a left L-4 radiculopathy. His lumbar spine was also not shown to preclude exercise, with the October 2010 VA examination of the spine having described this condition as only resulting in a moderate effect on his usual occupation and activities of daily living. This examination indicated that the Veteran could walk about a mile, and for a duration of 15-20 minutes without ambulatory devices. An alternative to exercise using weightbearing of the feet appears to have been introduced to him in October 2010, referred to as a "sit and fit" series. The same month, he said he would try to walk 10-15 minutes after dinner. Another October 2010 routine follow-up described the Veteran as exercising a "little bit," walking only once or twice a week. In September 2011 his physical activity was minimal, with the Veteran admitting that it was hard to exercise due to work and family schedules. No mention was made in this record of being physically unable to exercise due to his service-connected disability. Thus, his contentions of being unable to exercise due to his service-connected disabilities are refuted by the medical evidence showing otherwise. In sum, the preponderance of the evidence is against the claim of secondary service connection. The evidence does not show that such disabilities precluded exercise, resulting either in the direct cause or aggravation of the diabetes. The inability to exercise is not shown by the greater weight of the evidence, thus resolving the question as to whether there could have been any worsening of diabetes due to an inability to exercise. There is no other basis, either shown by the evidence or otherwise alleged, upon which to warrant a grant for this secondary service connection claim. ORDER Service connection for diabetes mellitus is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs