Citation Nr: 1309271	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  07-24 284A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for swelling of the ankles, also claimed as secondary to diabetes mellitus, type II. 

2.  Entitlement to service connection for kidney stones, also claimed as secondary to diabetes mellitus, type II. 

3.  Entitlement to service connection for an adrenal gland tumor, also claimed as secondary to diabetes mellitus, type II. 

4.  Entitlement to service connection for a bilateral eye condition, also claimed as secondary to diabetes mellitus, type II. 



REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from March 1966 to February 1970.  The Veteran was in receipt of, among other things, a Combat Action Ribbon and the Vietnam Service Medal, with two stars, for his combat service in Vietnam.  

The Veteran died on December [redacted], 2011.  Under the provisions of 38 U.S.C.A. § 5121A, when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion.  Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (substitution in case of death of a claimant who dies on or after October 10, 2008)).  In the present case, RO determined the Veteran's surviving spouse was a proper substitute for the Veteran in a March 2012 memorandum.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  Thereafter, the Veteran requested his claim be transferred to the RO in Muskogee, Oklahoma. 

This case was before the Board in December 2010.  The Board granted service connection for diabetes mellitus, type II and denied service connection for depression.  The Veteran did not, in response, appeal either the rating or effective date assigned for his diabetes mellitus, type II.

The Board also remanded issues regarding entitlement to service connection for swelling of the ankles, kidney stones, benign adrenal gland tumor and bilateral eye condition to the RO via the Appeals Management Center (AMC), in Washington, DC.  This case has been returned for review.  

In the December 2010 remand, the Board requested that the RO/AMC attempt to obtain additional medical records as well as medical nexus opinions concerning the etiology of the Veteran's claimed disorders (including whether caused or aggravated by his already service-connected diabetes mellitus).  The RO/AMC requested that the Veteran supply information regarding prior treatment (as early as 1970's), but the Veteran failed to respond.  However, the requested medical nexus opinions were obtained, and the opinions are responsive to the determinative issue of causation or aggravation.  So there was compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating a Veteran is entitled, as a matter of law, to compliance with remand directives, and that the Board itself commits error in failing to ensure this compliance).

This medical nexus opinions obtained on remand were considered, but the claims continued to be denied in a March 2012 supplemental statement of the case (SSOC).  So these claims are again before the Board. 



FINDINGS OF FACT

1. The Veteran died in December 2011, while claims of service connection for ankle swelling, a kidney disorder, an adrenal gland tumor, and an eye disability to include diabetic retinopathy were pending before the Board. 

2. Within one year of the Veteran's death, the Appellant, who is his surviving spouse, submitted the proper documentation for substitution as the moving party in the claims of service connection. 

3.  The most probative (meaning most competent and credible) evidence indicates the Veteran's ankle swelling  is unrelated to his military service and was not caused or permanently worsened by his service-connected diabetes mellitus. 

4.  The most probative evidence indicates the Veteran does not have a kidney disorder and his kidney stones are unrelated to his military service since they did not initially manifest during his service, or within one year of his discharge, and was not caused or permanently worsened by his service-connected diabetes mellitus. 

5.  The most probative evidence indicates the Veteran's adrenal gland tumor is unrelated to his military service and was not caused or permanently worsened by his service-connected diabetes mellitus.

6.  The most probative evidence indicates the Veteran did not have diabetic retinopathy and his bilateral eye conditions (refractive error and cataracts) are unrelated to his military service and are not caused or permanently worsened by his service-connected diabetes mellitus.



CONCLUSIONS OF LAW

1. The Appellant is a proper claimant and is therefore substituted for the deceased Veteran for purpose of pursuing the claim for increase. 38 U.S.C.A. § 5121A  (West 2010). 

2.  Bilateral ankle swelling was not a result of disease or injury incurred in or aggravated by his military service, and was not proximately due to, the result of, or chronically aggravated by his service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

3.  A kidney disorder was not incurred in or aggravated by his military service, and kidney stones may not be presumed to have been incurred in service, and are not proximately due to, the result of, or aggravated by any service-connected disability, namely, his type II diabetes mellitus.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).

4.  Adrenal gland adenoma was not a result of disease or injury incurred in or aggravated by his military service, and was not proximately due to, the result of, or chronically aggravated by his service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

5.  A bilateral eye condition was not a result of disease or injury incurred in or aggravated by his military service, and were not proximately due to, the result of, or chronically aggravated by his service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).

These notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In this case, letters satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in March 2006 and August 2009.  The March 2006 letter informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence.  The August 2009 letter also complied with Dingess by as well discussing the "downstream" disability rating and effective date elements of the claim.  And of equal or even greater significance, after providing that additional Dingess notice, the AMC readjudicated the Veteran's claims in the March 2012 SSOC including considering the additional evidence received in response to that additional notice.  So the timing defect in the provision of this additional notice, since it did not precede the initial adjudication of the claims, has been rectified ("cured") since the claims have been reconsidered since providing all necessary VCAA notice.  Further, there is no allegation or evidence of any content or timing error in the provision of the VCAA notice he received.  So absent this pleading or showing, the duty to notify has been satisfied.

VA also has satisfied its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO and AMC have obtained all records that he has identified as possibly pertinent, including his service treatment records (STRs) and post-service VA and private medical evaluation and treatment records.  In January 2011, the AMC also requested that the Veteran provide additional information regarding treatment in the 1970's.  He failed to respond.

The Board also, remanded these claims to obtain medical nexus opinions concerning the determinative issue of the etiology of his claimed disabilities, and specifically insofar as the likelihood they are directly or presumptively related to his military service or secondarily related by way of his service-connected diabetes mellitus.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The VA compensation examiners designated to provide the medical nexus opinions responded in January, November, and December 2011 examination reports with their findings, and their opinions are responsive to this determinative issue of causation or aggravation, so, as already mentioned, there was compliance with this remand directive.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Thus, the duty to assist the Veteran with this claim also has been satisfied.

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.

II.  Whether Service Connection is Warranted for Kidney Stones, Ankle Swelling, an Adrenal Gland Tumor, and a Bilateral Eye Disorder Including as Secondary to the Service-Connected Diabetes Mellitus, Type II

The primary basis of the Veteran's claims is that his service-connected diabetes mellitus either caused or aggravates his diagnosed kidney stones, bilateral ankle disability, adrenal gland tumor, and bilateral eye disorder.  So his claims are primarily predicated on the notion that his claimed disabilities are secondary to his service-connected diabetes mellitus, type II.  In deciding these claims, however, the Board must consider all potential bases of entitlement - direct, presumptive, and secondary.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Certain conditions (such as arthritis; renal calculi, malignant tumors) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing direct incurrence or aggravation in service or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection also may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish entitlement to direct service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder specified at 38 C.F.R. § 3.309(a) that was chronic in service or, if not chronic, that was shown in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b).  These provisions apply to chronic diseases listed at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Section 3.303(b) essentially provides two routes by which a veteran can establish service connection for a chronic disease listed at 38 C.F.R. § 3.309(a).  For all other diseases that might be considered chronic, medical nexus of a relationship between the condition in service and the current condition is required pursuant to 38 C.F.R. § 3.303(a).  Id.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Walker found that the "[p]rimary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent cause) or service connection via continuity of symptomatology."  Id.

First, for the showing of chronic disease in service, (or within a presumptive period per § 3.307), 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."  38 C.F.R. § 3.303(b).  Essentially to satisfy the element of a "showing of chronic disease in service", the disease entity must be established and the diagnosis not subject to legitimate question.  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  When the chronic disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity.  Id. 

Second, where the chronic disease is not shown to be chronic or where the diagnosis of chronicity in service is not adequately supported, then continuity of symptomatology can be established in cases where the claimant cannot fully establish the in-service and/or nexus elements of service connection discussed above.  38 C.F.R. § 3.303(b).  The Federal Circuit has recently held that "[p]roven continuity of symptomatology establishes the link, or nexus, between the current disease and service as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, supra.  The Federal Circuit stated the clear purpose of 38 C.F.R. § 3.303(b) is to relax the requirements of 38 C.F.R. § 3.303(a) for establishing service connection for certain chronic diseases.  Id.

For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 

Although symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence.  Id. at 1337.  See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) (holding that the Board is competent to consider "evidence of a prolonged period without medical complaint, along with other factors" in determining that a condition was not aggravated by service). 

Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2). 

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a).  The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  See id. at 1316. 

Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau, 492 F.3d at 1377 (footnote omitted).  For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer.  Id. at 1377 n.4.  Thus, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). 

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence also is generally, though, as mentioned, not always, required to associate the claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Turning now to the facts of this particular case.  The Veteran's STRS do not show any complaints, findings, or diagnoses relating to kidney stones, a bilateral ankle disability, or an adrenal gland tumor or a bilateral eye disorder (as defined by VA), and the Veteran does not contend otherwise. See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact).  His military service ended in February 1970.

There is no indication of arthritis affecting his ankles, kidney stones, or a malignant tumor within the one-year presumptive period following the conclusion of his service, meaning by February 1971, certainly not to the required minimum compensable degree of at least 10-percent disabling.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  See also 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Arthritis must be objectively confirmed by X-ray.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

In briefly reviewing his extensive medical records, the earliest evidence of post service treatment is a January 1993 letter addressed to the Veteran's employer by a private physician, Dr. J.J.N.  The physician reports that the Veteran had significant polymyalgia rheumatica.  

The claims file also contains another set of private medical records that date from September 2003 to January 2005.  These records show that the Veteran continued to receive treatment for a variety of ailments to include rheumatoid arthritis and hypertension.  His complaints included swelling of the lower extremities.

In October 2004, the Veteran initiated VA medical care for his various disabilities, mainly rheumatoid arthritis and hypertension.  During this time period VA outpatient records show that he reported a history of taking Prednisone since 1973 for his rheumatoid arthritis.  In June 2005 he was treated for renal stones.  It was noted that private medical records (May 2005 records from Crawford hospital) also indicated a right adrenal gland density.  Later that month, during VA follow up treatment, the adrenal mass was considered nonfunctional (benign).  In January 2005, his blood sugar level was noted to be high for a second time.  By March 2005, he was eventually diagnosed with diabetes mellitus, type II.  Since then he has been routinely checked for diabetic retinopathy.  At VA examinations, presbyopia and cataracts have been noted.  

A July 2006 VA compensation examination report reflects that the Veteran had been diagnosed with rheumatoid arthritis since 1972 and that his swelling of the feet had been present since the 1990s. 

The Veteran has the claimed disorders.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim).

Resolution of this appeal therefore ultimately turns on whether his claimed disabilities are related or attributable to his military service-either, as mentioned, directly, presumptively, or secondarily by way of his service-connected diabetes mellitus.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Unfortunately, in this case the most competent and credible evidence is against his claims.  In light of his history and the grant of service connection for diabetes mellitus, and suggestion of a relationship or correlation between his claimed disabilities and service-connected diabetes mellitus, the Board requested medical nexus opinions in the December 2010 remand.  

Pursuant to this remand directive, VA examinations were performed in January, November, and December 2011.  In response to the questions posed by the Board, the commenting examiners concluded the Veteran's swelling of the ankles, kidney stones, adrenal gland tumor and bilateral eye condition are less likely as not (less than 50/50 probability) caused by or a result of his military service, or the service connected diabetes mellitus.  

The Veteran was examined by a VA optometrist in January 2011.  The examiner could not find any ocular manifestations related to diabetes mellitus.  While she diagnosed cataracts, she indicated that this was a result of aging.  She also diagnosed refractive error.  However, refractive errors of the eye are not considered diseases or injuries within the meaning of applicable legislation pertaining to disability compensation for VA purposes, and provide no basis for service connection.  38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439 (1992); see also, generally, Winn v. Brown, 8 Vet. App. 510, 514 (1996) (upholding Secretary's authority to exclude certain conditions from consideration as disabilities under 38 C.F.R. § 4.9 ).  She was unable to find any bilateral eye condition secondary to diabetes mellitus. A VA optometrist in November 2011 confirmed the diagnoses.

In December 2011, the Veteran was examined for his remaining claimed disabilities.  In regard to the right benign adrenal adenoma, after considering the STRs, private records, VA records, medical literature, and physical examination; it was determined that it was less likely that the adrenal tumor was caused by or permanently aggravated by the diabetes mellitus.  She noted that there are no documented symptoms related to the tumor.  The Veteran acknowledged that he had been advised by VA medical providers that the adrenal adenoma is benign and of no consequence unless there was a change in size or if symptoms developed.  She also noted the clinical literature failed to relate adrenal gland adenoma to diabetes mellitus while providing an extensive list of medical references. 

Regarding kidney stones, first of all, she noted that there was no evidence of a kidney disorder.  She concluded that based on physical examination, a review of private and VA treatment records as well as the medical literature, that it was not likely that kidney stones are related to his military service or permanently worsened by the service connected diabetes mellitus.  She also noted that there is no evidence to relate kidney stones formation within a year of his service discharge.  She found that the kidney stone formation was more than likely due to a dietary etiology based on the history provided by the Veteran.  She noted that he acknowledged that he had been advised to avoid certain foods and drinks to avoid stone formation.   

Concerning the ankle swelling, again she concluded that based on physical examination, a review of private and VA treatment records as well as the medical literature, that it was not likely that ankle swelling is related to his military service or permanently worsened by the service connected diabetes mellitus.  She concluded that his joint swelling including the ankle edema is more than likely related to his non service connected rheumatoid arthritis, in particular, the medication Prednisone.  The VA nephrology clinical notes and his primary care clinical notes as well indicate that his lower extremity swelling is not related to diabetes mellitus or any complications.  These records described treatment and intervention related to his non-service-connected chronic diseases.  She added that the VA medical documentation indicate that the physicians providing chronic care did not believe that diabetes mellitus was responsible for the swelling of the lower extremities including the ankles.  

After considering the evidence both for and against the claims, the Board finds the statements of the VA examiners very persuasive in light of the overall record.  The VA compensation examiners opinions are based on a review of the pertinent medical history, including the Veteran's statements, and supported by sound rationale.  The VA examiners outlined the relevant facts in their reports, which they cited in support of the ultimate conclusions that the Veteran's claimed disabilities are unrelated to his military service - either directly, presumptively, or as secondary to his service-connected diabetes mellitus.  The examiners detailed explanations included specific mention of the facts that they considered especially significant.  For instance, the absence of any medical literature let alone any clinical evidence that etiologically relates these disabilities to his diabetes mellitus.  The objective evidence also supports their suppositions.  In specific regard to his eyes, the VA outpatient records dated since 2005 show that the Veteran was constantly monitored for diabetic retinopathy by the VA, but this was never shown by diagnostic testing.  Additionally, there was never any symptomatology or clinical care associated with the adrenal adenoma.  There was certainly no increase in the incidence of kidney stone formation subsequent to the diagnosis of diabetes mellitus.  And neither the VA nor private records show that his ankle swelling has been linked to his diabetes mellitus.

Since these VA examiners opinions were based on a review of the pertinent medical history and was supported by sound medical rationale, they provide compelling evidence against the Veteran's contentions that his claimed disorders are related to his service and, in particular, to his service-connected diabetes mellitus.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position).

Also, because the claimed disorders are not the type of conditions that are readily amenable to mere lay opinion regarding its etiology, the VA examiners unfavorable opinions take precedence over the Veteran's lay statements of the claimed cause-and-effect correlation between his kidney stones, adrenal adenoma, ankle swelling and bilateral eye conditions and the service-connected diabetes mellitus.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). It is notable that the Veteran does not allege and the evidence does not show that the disabilities at issue began in service or that there has been continuity of symptomatology of chronic diseases (arthritis of the ankles, kidney disease or tumors) since then.   

For these reasons and bases, the preponderance of the evidence is against the claims for service connection for kidney stones, adrenal adenoma, bilateral ankle swelling and bilateral eye conditions.  And since the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to service connection for swelling of the ankles is denied. 

Entitlement to service connection for kidney stones is denied. 

Entitlement to service connection for an adrenal gland tumor is denied. 


Entitlement to service connection for a bilateral eye condition is denied. 



____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs