Citation Nr: 1319111 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-16 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as due to service-connected hypertension. 2. Entitlement to service connection for diabetic retinopathy. 3. Entitlement to service connection for a bilateral foot disorder, claimed as bunions. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had verified active military service from August 1978 to July 1993. His Report of Transfer or Discharge (DD Form 214) indicates that he also had over six years of prior active service. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a July 2010 decision, the Board granted the Veteran's claims for service connection for peripheral neuropathy of his left and right lower extremities, as proximately due to service-connected lumbar spine disability. At that time, the Board remanded his claims for service connection for diabetes mellitus, including as due to service-connected hypertension, diabetic retinopathy, and a bilateral foot disorder to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development In December 2012, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for diabetes mellitus, including as due to service-connected hypertension. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in February 2013. Later that month, the appellant was given an opportunity to present additional argument and his representative submitted further written argument in April 2013. The matter of entitlement to service connection for a bilateral foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record preponderates against a finding that diabetes mellitus had its onset in or is otherwise related to the Veteran's military service, nor was it manifested to a compensable degree within one year of his discharge from active service, and it is not proximately due to service-connected hypertension. 2. The evidence of record preponderates against a finding that diabetic retinopathy had its onset in or is otherwise related to the Veteran's active military service and it is not proximately due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, including as due to service-connected hypertension, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in June and July 2003, September 2005, and August 2006, that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The August 2006 letter provided notice as to how VA assigns an appropriate disability rating or effective date, curing any timing defect. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence regarding the claims for service connection for diabetes mellitus and diabetic retinopathy. The Veteran was afforded a VA examination in February 2007 and the examination report is of record. As noted above, in July 2010, the Board remanded the Veteran's case to the RO for further development that included obtaining recent VA medical records and scheduling him for a VA examination. There has been substantial compliance with the Board's 2010 remand as he was scheduled for VA examination in June 2011 and VA medical records, dated from November 2006 to November 2011, were obtained. The February 2012 supplemental statement of the case (SSOC) indicates that the evidence includes records related to the Veteran's treatment from November 2006 to January 12, 2012. However, the Board recognizes that January 12, 2012 is the date on which VA treatment records were entered into the Veteran's Virtual VA electronic file, rather than the date of his last treatment. Thereafter, upon review of the record and the June 2011 VA examination report, the Board obtained a VHA opinion regarding the Veteran's claim for service connection for diabetes mellitus, including as due to service-connected hypertension. A copy of the VHA report was provided to the Veteran and his representative in February 2013 and, in April 2013, the representative submitted written argument on the Veteran's behalf. The Board finds that the February 2013 VHA report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The February 2013 VHA report makes up for the deficiencies in the February 2007 and June 2011 VA examination reports. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA non-VA treatment and examinations. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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 v. Principi, 16 Vet. App. 183 (2002). II. Factual Background and Legal Analysis The Board notes that it has thoroughly reviewed the record in conjunction with this case that includes the Veteran's service treatment records, VA and non-VA medical records and examination reports, dated from 1993 to 2013, and the Veteran's written statements in support of his claims. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). A veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, case law has established that 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, (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such as diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This is also a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (court) has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of diabetes pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Diabetes Mellitus In written statements in support of his claims, the Veteran asserts that he has diabetes mellitus that is due to his military service or to his service-connected hypertension. Service connection for hypertension was granted by the RO in a March 2007 rating decision. Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board finds that service connection is not warranted. Service treatment records do not discuss complaints or diagnosis of, or treatment for, diabetes. Repeated laboratory test results do not show a glucose abnormality. April 1986 and November 1991 service examination reports indicate that results of sugar and albumin tests were negative and urinalyses were within normal limits. Post service, when examined by VA in August 1993, diabetes was not reported. A diagnosis of diabetes mellitus first appeared in an August 2002 private treatment record and was also reported in a November 2002 VA outpatient record. A March 2003 VA outpatient record indicates that an optometrist evaluated the Veteran who was noted to have diabetes mellitus. The diagnoses included diabetes mellitus "s" (without) retinopathy in either eye. In a June 2004 private treatment record, G.B.N., M.D., opined that the Veteran developed hypertension that was a direct result of his military service "and is directly linked to that. The diabetes on the other hand is a secondary consequence of the hypertension itself and the diabetes has now become more of a monster than the hypertension was..." September 2005 and July 2006 VA outpatient medical records indicate that the Veteran was evaluated by optometrists for complaints of blurry vision in both eyes. Upon evaluation, diagnoses included type II diabetes mellitus without retinopathy in either eye. In an October 2005 written statement, Dr. G.B.N. stated that "we're able to establish that [the Veteran's] diabetes and hypertension are directly related to and are causative by his military service". Dr. G.B.N. reiterated that the Veteran's "diabetes has become more of monster now than his hypertension" and opined that "[t]he hypertension is the direct link that produced the diabetes. The diabetes is a secondary consequence of his hypertension." In an undated signed statement received in January 2007, Dr. G.B.N. noted that the Veteran was the only family member, first or second degree relative, to have diabetes and was not and never had been obese. The physician observed that the Veteran's service-connected back disability was treated with steroid injections that, along with stress, led to his diabetes and hypertension. In February 2007, the Veteran underwent VA examination. According to the examination report, the examiner reviewed the Veteran's medical records and performed a clinical evaluation. In the VA examiner's opinion, the Veteran's diabetes mellitus type 2 was less likely as not related to active military service. The examiner explained that there was no evidence in his service medical records suggesting diabetes. There were no lab results with elevated glucose levels, and urinanalysis demonstrated no spilling of glucose. VA outpatient medical records show that, in April 2011, the Veteran was examined by an optometrist for complaints of decreased vision in both eyes over the past year. Upon evaluation, diagnoses included type II diabetes mellitus without retinopathy in either eye. In June 2011, the Veteran underwent another VA examination. The examiner reviewed the Veteran's medical records and performed a clinical evaluation. Upon examination, the diagnosis was type 2 diabetes without retinopathy. The VA examiner reported that the Veteran recently had an optometrist examination that failed to reveal diabetic retinopathy. The VA examiner noted Dr. G.B.N.'s June 2004 treatment record that he said "did not really make sense" and noted that"[i]t sounds like the hypertension occurred after the diabetes". The examiner also reviewed Dr. G.B.N.'s October 2005 statement and commented that he "did not know if you can find [a] textbook that would state that diabetes is a direct consequence of hypertension. You do have an association of the [two], but one causing the other, more specifically hypertension causing diabetes I am unaware of this and I am unaware of any literature that states that there is an association between the [two], but any causality I am completely unaware of." The VA examiner also stated that "[the Veteran's] type 2 diabetes is normally a type of diabetes that occurs later on in life. With him being 60 and developing diabetes at age 62 and his service...had ended in ...1993, it is hard to believe that 12 years later you can say that his hypertension...is directly related to his military service and then say this diabetes is related to his hypertension. I just think it is all speculation so my final opinion is that it is least likely that his current diagnosis of diabetes is related to active duty service or his service-connected hypertension". Then, in a January 2012 note, the June 2011 VA examiner responded to the RO's request to clarify his opinion. He stated that he was "not aware of hypertension causing diabetes, so it is not as likely that the [V]eteran's service-connected hypertension caused his diabetes". In December 2012, the Board requested a VHA opinion as to whether it was at least as likely as not (a 50 percent or higher degree of probability) that type 2 diabetes had its clinical onset, or was otherwise related to the Veteran's active duty. The Board also asked it if was at least as likely as not (a 50 percent or higher degree of probability) that type 2 diabetes was proximately due to or the result of the Veteran's service-connected hypertension. If not, was it at least as likely as not aggravated by service-connected hypertension? The VHA examiner was further asked that, if aggravated, what permanent, measurable increase in current type 2 diabetes pathology was attributable to the service-connected hypertension. The VHA examiner was particularly requested to address the opinions rendered by Dr. G.B.N. in June 2004 and October 2005. In a February 2013 VHA report, a VA physician noted that "[t]here is no evidence in this patient's active duty record to suggest that the [V]eteran had diabetes". The VHA specialist observed that the Veteran "showed no symtoms such as polyuria, polydipsia, or polyphagia. [The Veteran] had no glucosuria or elevated blood glucose readings during this time frame. His diagnosis of diabetes is from later in life with being obese with [body mass index] over 30 and probably less active secondary to his disability from his back injury". Then, the VHA physician explained that "[t]here is no evidence in the medical literature to suggest that diabetes is caused by or aggravated by hypertension." He commented that the opinions rendered by Dr. G.B.N. in 2004 and 2005 "seem to be more rambling and opinion in his documentation. If this physician is willing to make these statements, he needs to bring literature or evidence to back up his claims." The VHA specialist reiterated that Dr. G.B.N.'s 2004 and 2005 opinions needed to "be backed with evidence for diabetes mellitus being caused or aggravated by his service [connected] hypertension." The VHA physician concurred with the opinion rendered by the June 2011 VA examiner and commented that the Veteran's "primary care provider needs to back up his opinions with sound evidence." Where a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the VHA specialist's opinion on which it bases its determination that service connection for diabetes mellitus, including as due to service-connected hypertension is not warranted. Since the VHA physician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim. The Board emphasizes that the VHA medical expert provided a valid medical analysis to the significant facts of this case in reaching his conclusion. In other words, the VHA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); see also Wray v. Brown, 7 Vet. App. at 493. The Board therefore places greater weight on the VHA opinion that finds that the Veteran's diabetes mellitus was not incurred in or aggravated by active military service, including service-connected hypertension, than on the June 2004 and October 2005 opinion rendered by Dr. G.B.N., the Veteran's treating physician, to the effect that the Veteran's diabetes was a secondary consequence of his hypertension. See Owens v. Brown, 7 Vet. App. at 433 (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. at 473 ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches"). But a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. at 433. But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the VHA physician who provided the written opinion. This medical specialist had the opportunity to review all the Veteran's medical records regarding the Veteran's diabetes disability. He explained that there was no evidence in the Veteran's service treatment records to suggest he had diabetes and that the diagnosis of diabetes was from later in life with his being obese and probably less active due to a back disability. The VHA physician stated that there was no evidence in the medical literature to suggest that diabetes was caused or aggravated by hypertension and that Dr. G.B.N. failed to support his opinions with sound evidence. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VHA physician's opinion is entirely consistent with the opinion rendered by the June 2011 VA examiner. With respect to the June 2004 and October 2005 opinions of Dr. G.B.N., the Veteran's treating physician, who stated that the Veteran's diabetes was a secondary consequence of his hypertension, the Board finds that, given the scope and depth of the VHA examiner's rationale, his opinion carries more weight than that of Dr. G.B.N. Although Dr. G.B.N. suggests that the Veteran's diabetes and hypertension were "directly related to and causative by his military service" and "that the hypertension was the direct link that produced the diabetes", he offered not one shred of evidence to support his assertions, or to support his assertion (in his undated statement received in 2007) that steroid injections used to treat service-connected lumbar spine disability along with stress, led to diabetes and hypertension. In other words, Dr. G.B.N.'s opinions do not support any theory that would warrant a grant of service connection for diabetes mellitus, including as due to service-connected hypertension. Diabetic Retinopathy The Veteran also seeks service connection for diabetic retinopathy. In an August 2003 signed statement, he reported that he was examined by Dr. G.B.N. and found to have diabetes in his eyes. However, as discussed in detail above, in 2003, 2005, 2006, and 2011, VA optometrists concluded that the Veteran did not have diabetic retinopathy in either eye, and the June 2011 VA examiner diagnosed the Veteran with type 2 diabetes mellitus without retinopathy, based on the April 2011 optometrist's findings. Thus, with respect to the Veteran's claim for service connection for diabetic retinopathy, in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. at 225. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of diabetic retinopathy, the Board must conclude the Veteran does not suffer from such a disability currently or at any time during the rating period on appeal. Both Claimed Disorders In so finding, the Board has considered the Veteran's contention that a relationship exists between his current diabetes mellitus and claimed diabetes retinopathy, and military service including his service-connected hypertension. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (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). The Veteran is competent to describe his observable symptoms, such as fatigue, thirst, or blurred vision. However, he is not competent to make a statement of causation that is a medical determination. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. To the extent he is claiming that diabetes problems have persisted since service, this is inconsistent with the overall record, which reflects that his diabetes symptomatology manifested after service. The Board has considered the Veteran's statements as to his incurrence during service, in light of his service treatment records, post-service medical evidence, and the February 2013 VHA medical opinion. The Board finds that the objective medical evidence of record is most persuasive and of more probative value than the appellant's assertions. The record fails to reflect that the Veteran was treated on even one occasion for diabetes difficulty during military service. The post service records show that diabetes mellitus was diagnosed in 2002, nearly 10 years after his discharge from service. The gap of time between military service and the first post-service medical evidence of diabetes is, in itself, significant, and weighs against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In short, no competent medical opinion or other medical evidence relating the Veteran's diabetes disorder or diabetic retinopathy disorder to service or any incident of service has been presented. The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology. However, to the extent that the Veteran is claiming continuity of diabetes symptoms since service, he is not a reliable historian. He made no mention of diabetes problems during his 1986 and 1996 service examinations and examination of his endocrine system at those times was normal. He has not explained why he failed to mention pertinent difficulty when examined pursuant to service requirements. Additionally, he did not report having diabetes problems when examined by VA in August 1993. The Board does not find that there is credible evidence of continuity of symptomatology present in this case. Moreover, while the Veteran is competent to state that he experienced diabetes problems in service, he is not competent to state that he has diabetes or another endocrine disease, or diabetic retinopathy. The chemical pathology of diabetes mellitus is not readily recognizable by a layman, such as varicose veins or acne. See Jandreau v. Nicholson. Even medical professionals rely on laboratory test results and other diagnostic tools to diagnose diabetes mellitus and diabetic retinopathy. Further, the February 2013 VHA examiner, who reviewed the Veteran's in-service treatment records and reviewed his post service medical records, concluded that he had diabetes mellitus that was not due to military service or to service-connected hypertension. The June 2011 VA examiner diagnosed the Veteran with type II diabetes mellitus without retinopathy. The Veteran's contentions are outweighed by the medical evidence and opinions of the June 2011 VA examiner and February 2013 VA examiner that reflects that his diabetes mellitus was less likely as not related to his military service or his service-connected hypertension and that he did not have diabetic retinopathy. Thus, the Board is left with no documented complaints of diabetes problems in service, no documented complaints or findings of a diagnosed diabetes disorder after service until 2002, and two VA medical opinions to the effect that the Veteran's diagnosed diabetes mellitus (without diabetic retinopathy) was not caused or aggravated by military service or service-connected hypertension. The questions involved regarding causation are medical in nature. As discussed above, the medical opinions of the 2011 VA examiner and 2013 VHA examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) were negative. In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claims for service connection for diabetes mellitus, including as due to service-connected hypertension, and for diabetic retinopathy, and his claims must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus, including as due to service-connected hypertension, is denied. Service connection for diabetic retinopathy is denied. REMAND The Veteran also seeks service connection for a bilateral foot disorder, claimed as bunions. In July 2010, the Board remanded the Veteran's claim to the RO to afford him a VA examination regarding the etiology of any bilateral foot disorders, including bunions, found to be present. The examiner was requested to render an opinion as to whether it was at least as likely as not that any currently diagnosed foot disorder was causally related to the Veteran's military service, or causally related to or aggravated by any of his service-connected disabilities, to included an altered gait caused by his service-connected lumbar spine, right leg, and bilateral hip disabilities. If aggravation of the non-service-connected disability by any service-connected disability was found, the examiner was requested to attempt to quantify the degree of additional disability resulting from the aggravation. In June 2011, the Veteran underwent VA examination of his feet. The report indicates that the examiner reviewed the Veteran's medical records. The Veteran complained of bilateral numbness and paresthesias in the bottoms of his feet that was his main complaint that he related to his back issues. He did not wear corrective inserts but wore diabetic shoes. The Veteran had surgery for a left bunion in the remote past as well as surgery on his left toe. He took pills to help with foot pain. Activities of daily living did not seem to be specifically affected by his feet but more by other issues. On examination, on his left foot, the Veteran had evidence of previous bunion surgery. The bunion was corrected. He had evidence of previous surgery over the second toe. He had a cross over toe deformity. On the right foot, there was some tenderness to palpation over the medial eminence and a mild to moderate bunion deformity. Diagnoses included likely peripheral neuropathy, residuals of left foot surgery, crossover of the second toe to the great toe of the left foot, and right bunion. The VA examiner commented that he did not believe that any of the Veteran's foot issues were related to service. He explained that the Veteran did not have functional deficits from his bunion or his cross toe deformity-that these "were corrected and he did not have any complaints there, thus he does not have any issues of function from that". The VA examiner concluded that the Veteran's foot disorders were not related to his military service. However, the VA examiner only attributed the Veteran's reported neurologic symptoms to peripheral neuropathy. The Board cannot rely on this VA opinion to render a determination as to the etiology of the Veteran's claimed bilateral foot disorder(s). Further clarification is required to determine if the Veteran has residuals, even if not presently causing functional impact, that may be due to service. Recent medical records regarding the Veteran's treatment at the VA medical center (VAMC) in Columbia, South Carolina, dated since November 2011, should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VAMC in Columbia, dated from November 2011 to the present, and from any additional VA and non VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. After accomplishing the development requested above, return the Veteran's claims file and a copy of this Remand to the examiner who performed the Veteran's June 22, 2011 VA examination of his feet (or another similarly qualified VA examiner). The VA examiner is requested to review the record, including the June 2011 VA examination report and address the following questions (a new examination should be scheduled only if deemed necessary by the examiner). a. Does the Veteran have any residual foot disorder(s), including any that may not be causing functional impact? b. If so, for each residual foot disorder identified, is it at least as likely as not that the disorder is causally related to active service? c. If not, is the diagnosed foot disorder causally related to or aggravated by any or all of the Veteran's service-connected disabilities, including as due to an altered gait caused by service-connected lumbar spine, right knee and leg, and bilateral hip disabilities. If so, the examiner is requested to quantify the degree of additional foot disability resulting from the aggravation by the Veteran's service-connected lumbar spine, right leg, and/or bilateral hip disabilities. d. A rationale should be provided for all opinions rendered. 3. Readjudicate the issue of entitlement to service connection for a bilateral foot disorder, including bunions. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and an opportunity to respond. Thereafter return the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). CONTINUED ON NEXT PAGE This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs