Citation Nr: 1309358 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-11 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes, to include as secondary to service-connected frostbite residuals or exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1956 to May 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and February 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for diabetes. The case was brought before the Board originally in June 2009 and the claim was remanded to obtain outstanding private treatment records and afford the Veteran a VA examination. The South Side Hospital indicated in a November 2009 response that it had no records for the Veteran. The Veteran was afforded a VA examination in May 2010. The case returned to the Board in October 2010 when it was again remanded for outstanding VA treatment records and an addendum opinion from the May 2010 VA examiner regarding direct service connection. The VA treatment records were associated with the claims file and in December 2010 the examiner offered an addendum opinion. In April 2011, the case was again before the Board when it was remanded to provide the Veteran with notice on substantiating his claim, obtaining outstanding VA treatment records, obtaining records from Fort Lee, obtaining private treatment records, and requesting an additional opinion from the May 2010 examiner. The Veteran was notified in April 2011 how to substantiate his claim. The VA treatment records were associated with the claims file. The National Personnel Records Center (NPRC) responded in January 2012 that no Fort Lee treatment records were available for the Veteran. The May 2010 VA examiner also provided another addendum opinion regarding secondary service connection. Finally, in July 2012 the claim was remanded for the Veteran to provide releases to obtain private treatment records and for a final opinion regarding whether the Veteran's frostbite residuals aggravated his diabetes. The Veteran clarified in an October 2012 statement that there were no additional, available, outstanding treatment records. In December 2012 a final opinion was provided by the May 2010 VA examiner. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during service. 2. The preponderance of the evidence is against a finding that diabetes mellitus is related to service or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for the award of service connection for diabetes have not been met. 38 U.S.C.A. §§ 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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). The notice requirements were met in this case by letters sent to the Veteran in May 2005 and April 2011. While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the April 2011 letter followed by a readjudication of the claim in the May 2012 and February 2013 supplemental statements of the case 'cures' any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board notes that part of the Veteran's service treatment records were destroyed in a July 1973 fire that occurred at the NPRC in St. Louis, Missouri. When service treatment records are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has been informed that parts of his records have been presumed to have been burned and he has had multiple opportunities to provide any additional outstanding service treatment records. The Board concludes the RO exhausted efforts from obtaining records from other sources and further efforts would be futile. The Veteran's VA treatment records are in the file. The VA has also obtained all available private treatment records and associated them with the claims file. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in May 2010 for his diabetes claim. The examiner also offered addendum opinions in December 2010, April 2011, and December 2012. These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, when viewed in conjunction with one another, the Board finds that the examination and subsequent opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating '(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.' Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that '[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board'). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be granted for a chronic disease, including diabetes mellitus, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A presumption also exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The term 'herbicide agent' means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma. Service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that the Veteran served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Herbicide Exposure Analysis The Veteran did not have service in Vietnam, but rather submitted a statement in October 2006 noting that diabetes is a presumptive disease. He served in Korea from May 1957 to April 1958. However, the competent evidence of record does not demonstrate exposure to herbicide agents within the meaning of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307. In this regard, the Veteran did not serve in an area where exposure to herbicides has been conceded. Although parts of Korea have been determined to have had herbicide exposure, it was not until April 1968 to August 1971, when the Veteran had already separated from service. Furthermore, the Veteran has not specifically alleged that he was exposed to herbicides while in Korea, or at any other time in service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). As the competent evidence of record does not support a finding that the Veteran was exposed to herbicides in-service, the presumption does not apply. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Direct and Secondary Service Connection Analysis The Veteran contends that his diabetes is the result of his service-connected frostbite residuals or in the alternative that his diabetes began in service, which was shown by his fainting episodes. For these reasons, he believes his claim of service connection should be granted. For the reasons that follow, the Board concludes that service connection is not warranted. The Veteran was afforded a medical examination at entrance to, and separation from, service in August 1956 and April 1958, respectively. At his entrance examination, there is no evidence of diabetes mellitus and the Veteran denied dizziness or fainting spells, or sugar or albumin in his urine. The Board does observe that the Veteran fainted on March 20, 1957 and the service treatment record states that the Veteran also had a fainting episode two weeks earlier. At the Veteran's separation examination, he stated he had never had sugar in his urine. Ultimately, the Veteran was found qualified for separation. In short, the service treatment records are devoid of any complaints, diagnoses, or treatment consistent with diabetes, although it has been noted that the Veteran fainted at least twice. The lack of findings of record weighs against the Veteran's assertion that he suffered from diabetes in service. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The Board has reviewed the Veteran's post-service treatment records, however there is no competent and credible evidence linking his diabetes to service. The first post-service reference to diabetes comes from a December 1976 private treatment record which diagnosed the Veteran with diabetes. The Veteran was prescribed a 1200 calorie a day diet. The Veteran has stated that he was not diagnosed with diabetes until 1980, when he had a heart attack. He stated that his physician told him his blood sugar was elevated and this may have caused his heart attack. He stated he was put on insulin in early 1981. See e.g., March 2005 notice of disagreement. VA treatment records have also shown that the Veteran receives treatment, to include prescription medication and insulin, to help control his diabetes. See e.g., August 2003 VA treatment record. The Veteran submitted a newspaper article in March 2005 which pertained to the complications of frostbite. The article quoted a VA official who stated that frostbite can cause long-term complications, including diabetes. The May 2010 VA examination report did not address direct service connection. In December 2010, the VA examiner determined that it was not likely that the Veteran's diabetes had its onset during active service because the service treatment records show only one instance of evaluation and treatment of an in-service fainting spell, and there is no other evidence of elevated blood sugar levels or other symptoms of diabetes in the service treatment records, including his separation examination. The December 2010 addendum is inadequate, as the VA examiner premised his opinion on the documentation of only one episode of fainting in the Veteran's service treatment records. However, as noted by the Veteran in his March 2011 statement, the Veteran's March 1957 service treatment records show that the Veteran experienced two fainting spells: one fainting spell on the morning of March 20, 1957, and an additional previous fainting spell two weeks prior while serving on guard duty. Furthermore, the Veteran alleged additional instances of fainting, including one instance while on overseas duty in Korea which formed the factual basis for his claim for service-connection for frostbite residuals. Therefore, the Veteran's file was again reviewed in connection with the April 2012 VA addendum opinion. The examiner ultimately opined that it was less likely than not that the Veteran's diabetes was caused by, or related to, his service-connected frostbite residuals. The examiner offered a lengthy rationale, which included an analysis of direct service connection, in coming to this opinion. The examiner noted the Veteran did not report dizziness, frequent urination, fainting spells, or sugar in his urine at his entrance examination, all of which can be diabetic symptoms. The urinalysis was also negative for sugar or albumin. The examiner noted the Veteran had two fainting episodes in service. The examiner noted at his separation examination the Veteran again did not report sugar or albumin in his urine. The other sections from his entrance examination have been burned so the symptoms cannot be discussed. The examiner offered a discussion on the Veteran's fainting episodes which included information pertaining to syncopal episodes. He stated that diabetes was one possible diagnosis for syncope, but that one-third of all syncopes are idiopathic. He noted that when the Veteran fainted in March 1957 there was no diagnosis of diabetes and there was no follow up care after this incident. He provided reference to medical literature in support if his opinion. The Board finds that the preponderance of the evidence is against the Veteran's claim for direct service connection. Diabetes mellitus was not diagnosed during service or for many years thereafter, and the competent and credible evidence of record shows that it did not have its onset during service and is not related to service. The opinion by the VA examiner in April 2012 weighs against the Veteran's contentions. This opinion is found to carry great weight, as the examiner reviewed the claims folder and provided a detailed rationale for his opinion. With respect to secondary service connection, the Veteran contends that his diabetes was proximately caused by his service-connected frostbite residuals. The Veteran was afforded a VA examination in May 2010. The Veteran reported using both insulin and oral medication to control his diabetes. The examiner reviewed the claims file and examined the Veteran. He opined it was less likely than not that the Veteran's diabetes was caused by his service-connected frostbite residuals. His rationale was that there was no medical evidence to support the claim. In the December 2010 VA addendum opinion the examiner again stated there was no evidence the Veteran's diabetes was related to his frostbite residuals. In the April 2012 VA addendum opinion, the examiner again opined the Veteran's diabetes was less likely than not a residual of his service-connected frostbite residuals. In reviewing the newspaper article provided by the Veteran he noted this was not a medical journal and there did not appear to be a scientific study which supported the statement that diabetes may be a residual of frostbite. Finally, in the December 2012 VA addendum opinion the examiner stated that the Veteran's service-connected frostbite residuals did not cause or aggravate his diabetes. He again acknowledged the newspaper article submitted by the Veteran and stated that there was no medical evidence to support the statement that diabetes is a residual of frostbite. He also noted this was not a medical journal and the article did not cite to a scientific study to support the statement. Ultimately, he found no competent evidence which indicated frostbite residuals could cause or aggravate diabetes. With regard to the presumption of service connection, the Veteran must have been diagnosed with diabetes which manifested to a degree of 10 percent or more within 1 year from service for the presumption to apply. 38 C.F.R. § 3.307 (a)(3). As noted, the earliest medical record indicating a diagnosis of diabetes is from 1976, approximately 18 years after separation from service. The presumption of service connection does not apply in the instant case. 38 C.F.R. §§ 3.307, 3.309(a). In sum, a preponderance of the probative evidence of record weighs against the Veteran's assertion that his service-connected frostbite residuals are the proximate cause of, or has aggravated, his diabetes. Specifically, a VA physician opined on multiple occasions that it is less likely than not that the Veteran's diabetes is related to his service-connected frostbite residuals. These opinions were rendered following an interview and evaluation of the Veteran as well as a review of historical records. The Board finds credible the Veteran's report that he has diabetes which was diagnosed post-service. The Veteran has also provided numerous statements indicating that he believes his diabetes is due to his service or his frostbite residuals. The most credible evidence of record suggests that the Veteran's diabetes is not related to service or to his service-connected frostbite residuals. The May 2010 VA examiner's original report, with addendum opinions, stated that his diabetes was not related to service or a service-connected disability. Furthermore, the Board finds compelling the absence of treatment or a diagnosis for diabetes during service or for many years thereafter. The Board acknowledges the article submitted by the Veteran that quoted a VA official who stated that frostbite can cause long-term complications, including diabetes. However, this information is not specific to the facts of the Veteran's case. Further, the VA examiner reviewed the article and noted this was not a medical journal and the article did not cite to a scientific study to support the statement. In view of this, the Board finds that the generic article is outweighed by the opinion of the VA examiner, which was based upon a review of the facts of this Veteran's case and supported by a detailed rationale. The Board also acknowledges that the Veteran believes he has diabetes which began in service when he fainted or as a result of his service-connected frostbite residuals. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diabetes falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case, given the Veteran's lack of medical expertise, his assertions that he currently has diabetes that is related to service or a service-connected disability are beyond his competence. These statements are greatly outweighed by the VA examiner's negative opinion and the lack of diagnosis or treatment in service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for diabetes on a direct, secondary, and presumptive basis and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for diabetes is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs