Citation Nr: 1323632 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 06-26 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for diabetes mellitus, type II (DM). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1985 to February 1993; he also served in the Reserves, with various periods of active duty for training (ACDUTRA). This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The Board remanded this case for additional development in October 2009 and February 2011. In November 2012, the Board remanded the issue on appeal to the RO to obtain information on the Veteran's dates of Reserve duty service from January 1997 to August 2004, to include the specific dates of ACDUTRA, and to obtain an additional nexus opinion. Information relevant to Reserve service from 1997 to 2004 and an additional nexus opinion were subsequently obtained and added to the claims files. As information on Reserve duty service from 1997 to 2004 and an additional nexus opinion have been added to the claims files in response to the Board remand, there has been substantial compliance with the November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). FINDING OF FACT The competent evidence of record fails to demonstrate that it is at least as likely as not that the Veteran currently has DM that was present in service or is otherwise related to service. CONCLUSION OF LAW DM was not incurred or aggravated by military service nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in November 2004, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The November 2004 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility to obtain. The Veteran was informed in a March 2006 letter of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was not prejudiced by the timing of completion of VCAA notice as the matter was thereafter readjudicated in a statement of the case issued in May 2006. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA medical examination was conducted in June 2010, with additional nexus opinions obtained in March 2012 and April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2010 VA examination and March 2012 and April 2013 VA opinions obtained in this case are adequate, as they are predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The April 2013 opinion considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for DM. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of DM, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the 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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment reports from December 1985 to February 1993 do not reveal any pertinent complaints or findings indicative of DM. February 1988 laboratory results show a glucose level of 87. The Veteran complained on his September 1992 separation medical history report of muscle tension headaches, a penile rash, shortness of breath/chest pain, stomach trouble, and a broken bone in his right hand. The Veteran noted on medical examination in September 1992 that there had not been any significant change in his health since his last examination, except for headaches and chest pain. The Veteran had a glucose level of 111 in October 1994, with a reference range of 70 to 110, after being admitted to the emergency room following complaints of chest pain. A medical history report and medical examination in February 1995 were within normal limits. It was noted in a February 1995 Health Risk Appraisal Individual Profile that the Veteran did not have a personal history of DM. He had a fasting blood sugar (FBS) level in February 1995 of 137; a urinalysis was negative for glucose. It was noted in June 1996 that the Veteran had had DM for one month and was on 5 mg. of Glucotrol. According to a Health Risk Assessment dated in August 1996, the Veteran had a history of diabetes and was on 5 mg. of Glucotrol. On medical examination, urinalysis was negative for sugar; fasting blood sugar (FBS) was noted to be high at 124. It was noted that the Veteran was diabetic. It was reported in November 1996 that the Veteran had been given a diagnosis of DM in June 1996; the diagnoses in November 1996 included DM, controlled. According to an April 1996 treatment report from S. Hollingsworth, M.D., the Veteran had new onset DM. According to February 2002 medical records from Wishard Memorial Hospital, the Veteran had a medical history of DM. Private and VA treatment reports from February 2002 to April 2010 show treatment for DM. When examined by VA in June 2005, the Veteran complained of numbness in the fingers and toes since 1986; he reported that he had been diagnosed with DM in 1986. A VA evaluation was conducted in June 2010. After review of the claims files and examination of the Veteran, the examiner concluded that DM was initially shown in August 1996. It was the examiner's opinion that if the Veteran was on active duty in August 1996, then his DM started while he was on active duty. After review of the claims files, a VA physician opined in March 2012 that the Veteran's DM was less likely than not incurred in or caused by a claimed in-service injury, event, or illness because there was no showing indicative of DM until more than a year after service discharge. DM was less likely than not aggravated by service because the diagnosis of DM was not until after service discharge. Leave and Earnings Statements (LES) from 1993 thru 2004 were added to the claims files in response to the February 2011 and November 2012 Board remands. These reports show ACDUTRA in 1993 from July 25 through August 7 and from October 16 through October 27. In response to the November 2012 Board remand, the VA examiner who provided the opinion in March 2012 again reviewed the claims files, to include the LES dates, and opined in April 2013 that the Veteran's DM was less likely than not related to a claimed in-service injury, event, or illness because the records indicated that the Veteran was not started on medication for elevated blood sugars until April 1996, which is more than three years after service discharge. It was also concluded that the Veteran's DM was less likely than not related to ACDUTRA because the diagnosis was not made during a time of ACDUTRA. There was no aggravation of DM during ACDUTRA because the Veteran was on a stable dose of medication for several years and because physical activity is beneficial to a person with DM and would not permanently aggravate the disease. The above medical evidence does not include objective evidence showing that the Veteran currently has DM related to service. There is no evidence of DM in service or during periods of ACDUTRA in 1993. Moreover, the recent nexus opinions in March 2012 and April 2013, which are based on a review of the medical evidence and include a rationale, are against the claim. There is no nexus opinion in favor of the claim. Consequently, service connection for DM is not warranted. The Board acknowledges that service connection may also be established on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). A lay person is competent to provide evidence on the occurrence of observable symptoms during and following service. In the present case, the Veteran contended in June 2005 that he began experiencing numbness in the fingers and toes in service in 1986 and that diabetes was initially diagnosed in 1986. Because the initial diagnosis on file of DM was in 1996, it is unclear if the Veteran meant to say 1996 rather than 1986. In any case, the Board notes that there is no medical evidence of DM until more than a year after discharge from active duty. A lay person, without demonstrated medical training, is not competent to make a medical diagnosis of diabetes mellitus, or to relate such medical disorder to a specific cause. The Veteran has not been shown to have the requisite medical training. The lay statements from the Veteran have been taken into consideration in adjudicating the issue on appeal. The Veteran is competent to report his subjective symptoms over the years. However, his contention that DM was diagnosed in 1986 is not credible as it specifically contradicts contemporaneous medical findings. Moreover, the weight of the evidence as a whole, especially the March 2012 and April 2013 VA opinions, which are based on a review of the claims files and which contain a rationale, are against the claim. There is no medical opinion on file in support of the claim. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for DM is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs