Citation Nr: 1324079 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-38 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to a rating in excess of 10 percent for bilateral pes planus with metatarsalgia and bone spurs. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and G.S. ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1994. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and a July 2006 rating decision of the RO in Waco, Texas. The RO in Phoenix, Arizona, currently has jurisdiction of the claims. The Veteran and G.S. testified at a personal hearing before the undersigned Veterans Law Judge in September 2008. A transcript is of record. In pertinent part, an April 2009 Board decision denied the claim for an increased rating for bilateral pes planus and remanded the claim for service connection for diabetes mellitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court vacated that part of the April 2009 Board decision that denied the Veteran's claim for an increased rating and remanded the case to the Board for readjudication consistent with a March 2010 Joint Motion. In a June 2010 decision, the Board denied the claim for service connection for diabetes mellitus and remanded the claim for an increased rating for bilateral pes planus pursuant to the actions as outlined in the March 2010 Joint Motion. The Veteran appealed that decision. In December 2010, the Court vacated that part of the Board decision that denied the claim for service connection and remanded the case to the Board for readjudication consistent with a December 2010 Joint Motion. In an October 2011 decision, the Board denied the claim for an increased rating for bilateral pes planus and remanded the claim for service connection for diabetes mellitus pursuant to the actions as outlined in the December 2010 Joint Motion. The Veteran again appealed the Board's decision to the Court. In May 2012, the Court vacated that part of the Board decision that denied the claim for an increased rating and remanded the case to the Board for readjudication consistent with a May 2012 Joint Motion. Pursuant to the May 2012 Order of the Court, and upon review of the claims file, the Board remanded both claims on appeal for additional development in October 2012. The medical evidence of record contains diagnoses of both type I and type II diabetes mellitus. The Veteran's claim has been recharacterized as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to an increased rating for bilateral pes planus with metatarsalgia and bone spurs 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. FINDING OF FACT Diabetes mellitus was not shown in service or within one year after discharge from service, and the most probative evidence fails to link the Veteran's current diabetes mellitus to service. CONCLUSION OF LAW The requirements for establishing service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in January 2003, July 2005 and March 2006 letters. The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The duty to assist has also been met. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, private and VA treatment records, and hearing testimony. The Board notes that VA attempted to obtain the Veteran's Social Security Administration (SSA) records, but these records were not available. In February 2011, the RO/AMC made a Formal Finding of Unavailability of SSA Records. Therefore, the Board finds that additional development is not necessary regarding the obtaining of the Veteran's SSA records. The Board also acknowledges that the March 2013 VA examiner had ordered specific testing to confirm the diagnosis of diabetes mellitus type II. However, as will be discussed in further detail below, remand is unnecessary to obtain these test results because the medical evidence shows that the Veteran did not have gestational diabetes in service, and her current diabetes mellitus is not due to her period of service. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining updated VA medical records for the Veteran from the VA medical centers in all of the states she has lived in, obtaining clarification of the onset date of the Veteran's diabetes mellitus and the name that she used at the time of her treatment, obtaining the medical records pertaining to the Veteran's 1988 birth at Brooke Army Medical Center, and obtaining a VA examination and opinion regarding clarification of the type of diabetes mellitus that the Veteran has and whether this type of diabetes mellitus is due to her period of service. In response, the RO/AMC obtained VA medical records from VA medical centers in Louisiana, Florida, California, Texas, and Arizona. In October 2011 correspondence, the RO/AMC requested that the Veteran clarify the onset date of her diabetes and provide the name she used at the time of her treatment. In November 2012 correspondence, the RO/AMC requested that the Veteran provide information regarding the father of the child that she gave birth to in 1988 so that it could obtain the associated medical records at Brooke Army Medical Center. However, the Veteran failed to respond to the October 2011 and November 2012 requests. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Additionally, the RO/AMC scheduled the Veteran for VA examinations dated in November 2009 and March 2013. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including testimony at a hearing. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Diabetes mellitus is included in 38 C.F.R. § 3.309. Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption 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. The Board has reviewed all of the evidence in the Veteran's claims file. 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 her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran essentially contends that her diabetes mellitus began while she was on active duty or within the first postservice year. She alleges that she had gestational diabetes in service which was later diagnosed as diabetes mellitus type I, and that she is also a type II diabetic. Service treatment records show that in October 1991, while receiving prenatal care prior to the March 1992 birth of her second child, the Veteran was noted to be an insulin-dependent diabetic. On separation examination in September 1994, laboratory findings show trace sugar. A VA general medical examination in April 1995 noted normal laboratory findings. There was no diagnosis of diabetes mellitus. Treatment records associated with the Veteran's pregnancy included an August 1995 notation of rule-out gestational diabetes mellitus. In November 1995, the Veteran gave birth to an infant; no complications were noted. A December 2002 treatment record notes the Veteran reported a history of diabetes mellitus for one to two years, "used to be gestational in the past." Diabetes mellitus, type I, was diagnosed. A VA examination was conducted in November 2009. The examiner reviewed the claims folder in conjunction with the examination of the Veteran and diagnosed the Veteran with diabetes mellitus, insulin-requiring. She stated that the comment noted in August 1995, with regard to rule-out gestational diabetes mellitus, probably referred to a glucose tolerance test which was done on all pregnant women in 1995, and which still was currently done in weeks 24 to 28 of pregnancy. She indicated that this should not have any significance on the Veteran in particular. Regarding the Veteran's claim that she was diagnosed with gestational diabetes in November 1995, the examiner found that there was no evidence of this in the treatment records surrounding this pregnancy. Specifically, there was only a single random glucose level of 135 and a note suggesting that the Veteran be referred for a 3-hour glucose tolerance test, for which the results were not available. The examiner noted that the medical records for the Veteran's prenatal course made no reference to diabetes, any unusually elevated glucose, or any glucose in the urine, which was checked approximately 10 times over the course of the pregnancy. The anesthesia report from the time of the childbirth also specifically stated that there was no diabetes. Additionally, there was no evidence of the newborn baby being treated as an infant of a diabetic mother. Specifically, no heel stick was done to check a glucose on the baby. Newborns of diabetic mothers were frequently hypoglycemic, and this was always done in association with a period of observation in the NICU. However, the examiner explained that this had not been done in the Veteran's case presumably because no one had any reason to believe that she was diabetic. The examiner further stated that while it was clear that the Veteran had been subsequently diagnosed with diabetes and currently had somewhat labile diabetes requiring an insulin pump, it was pretty evident that this diagnosis had not been made prior to the birth of the Veteran's child on November [redacted], 1995. Inasmuch as that date was later than the end of the Veteran's first post service year, ending October 24, 1995, the examiner found that the Veteran's current diabetes mellitus clearly did not have its onset in service or during the first post service year. The examiner concluded that it was less likely than not that the Veteran's diabetes mellitus had its onset in service or during the first post service year. The Veteran underwent another VA examination in March 2013 in order to have the VA examiner consider the recently submitted October 1991 service treatment record indicating that the Veteran had been an insulin-dependent diabetic during the prenatal care she received prior to giving birth in March 1992. The examiner reviewed the Veteran's claims file in conjunction with her examination and diagnosed type II diabetes mellitus. He found that based on the current evidence, it was as likely as not that the Veteran had type II diabetes mellitus, but that he had ordered specific testing to confirm this opinion. He indicated that he would later provide an addendum opinion firmly clarifying the type of diabetes mellitus once the test results came back. The examiner opined that the Veteran's diabetes mellitus was less likely than not incurred in or caused by her period of service. He also found that based on all the available laboratory results, notes, intravenous fluids used, and medications prescribed, it was less likely than not that the Veteran had been diagnosed with gestational or any other type of diabetes mellitus during her pregnancies of 1991-92 and 1994-95, or otherwise during service. The examiner provided a lengthy, detailed, and organized rationale in support of his opinions in which he cited many urine analysis sugar results and blood sugar readings. Regarding the Veteran's 1991-92 pregnancy, the examiner acknowledged a medical record in which the physician had requested a maternal screening test for alpha fetoprotein to rule out fetal abnormalities. He explained that this test was done in women who had multiple pregnancies, uncertain fetal age, or diabetes mellitus. The examiner noted that the physician had indicated that the Veteran had had multiple pregnancies and diabetes mellitus on insulin. However, he found that the physician's notes conflicted with other information in the file. Specifically, the Veteran had not had multiple pregnancies in 1991-92, and all blood sugar readings taken at that pregnancy had been normal. There had been no mention of insulin in all the medical records, and the discharge medications following normal vaginal delivery had not listed insulin. Additionally, the Veteran had not claimed to have gestational diabetes mellitus during this pregnancy. Indeed, on enlistment to the Army National Guard in April 1992, the Veteran had reported having two full-term normal births in 1988 and 1992. Therefore, the examiner found that it was less likely than not that the Veteran had had gestational diabetes mellitus during her 1991-92 pregnancy. With respect to the Veteran's 1994-95 pregnancy, the Veteran was claiming that she had had gestational diabetes during this pregnancy. The examiner reported that there had been extensive notes and good documentation throughout this pregnancy, but there had been no mention of diabetes mellitus or the use of insulin in any of the associated medical records. Specifically, a November 1995 medical report revealed that the Veteran had made a normal vaginal delivery without any complications and that she had used an intravenous fluid that would never be used in a diabetic. All urine analysis results during this pregnancy were negative for sugar, and blood sugar readings in January 1993 and August 1994 were normal. There was a July 1995 blood sugar reading of 115, and a glucose tolerance test had been recommended, but there was no evidence that the testing had ever been completed. Therefore, based on all the available evidence, laboratory results, discharge notes, nurses' notes, and intravenous fluids used, the examiner found that it was less likely than not that the Veteran had had gestational diabetes mellitus during her 1994-95 pregnancy. The examiner also cited a Mayo Clinic study regarding the causes of gestational diabetes. Risk factors for gestational diabetes included age greater than 25, family or personal health history, excess weight, and non-white race. The examiner noted that the Veteran was Puerto Rican in ethnicity and had a family history of diabetes mellitus type II. He explained that the only relationship between gestational diabetes and diabetes mellitus type II was that women who did develop gestational diabetes were at increased risk of developing diabetes mellitus later in life. The Board acknowledges that the March 2013 VA examiner had ordered specific testing to firmly confirm the diagnosis of diabetes mellitus type II, but that these test results have not yet been associated with the claims file. However, in this case, the evidence has shown that the Veteran did not have gestational diabetes or any other type of diabetes during her period of service or within one year of discharge from service. Additionally, the medical evidence reveals that the Veteran's current diabetes mellitus is not related to her period of active service. Thus, regardless of whether the Veteran has type I or type II diabetes mellitus, there is no basis to grant service connection, and further remand to obtain the test results regarding confirmation of what type of diabetes mellitus the Veteran has is not necessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). Although the Veteran's service treatment records show that she was noted to be an insulin-dependent diabetic in October 1991, this conflicts with the other medical evidence of record at the time of this notation, which revealed normal blood sugar readings and the lack of use of insulin. Additionally, at no time did any of the Veteran's treating providers find that her diabetes mellitus was due to her period of service. The November 2009 and March 2013 VA examiners reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the opinion that it was less likely than not that the Veteran's diabetes mellitus was caused by her service. The examiners cited the medical findings which failed to show that the Veteran had any form of diabetes mellitus during service. They also explained how certain notations indicating that the Veteran had diabetes mellitus during service either conflicted with the other evidence of record or were merely indicative of standard testing that was taken during pregnancies. For these reasons, the November 2009 and March 2013 VA opinions, taken together, are afforded great probative value. 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 mellitus falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of dizziness, any actual diagnosis of diabetes mellitus requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current diabetes mellitus requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran herself believes that she has current diabetes mellitus that is due to service, as a lay person, she is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of her current diabetes mellitus is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which reveals that diabetes mellitus is not due to service, is of greater probative value than the lay contentions of the Veteran. The Board further finds that service connection is warranted on the basis of a continuity of symptomatology under 38 C.F.R. § 3.303(b) for chronic diseases; Walker, 708 F.3d at 1331. The objective evidence of record does not show that the Veteran has continuously had diabetes mellitus since discharge from service. Indeed, the first post-service evidence of a diagnosis of diabetes mellitus is not until December 2002, which is approximately 8 years after discharge from service. While the Veteran alleges that she has had diabetes mellitus continuously since discharge from service, any actual diagnosis of diabetes mellitus requires objective testing to diagnose, and the Veteran is not competent to make such a diagnosis. See Jandreau, 492 F.3d at 1372. Therefore, the Board finds that service connection for diabetes mellitus based on a theory of continuity of symptomatology is not warranted. In sum, the Board finds that the probative and persuasive evidence establishes that the Veteran did not have diabetes mellitus in service, and there is no competent and credible evidence indicating she had diabetes mellitus manifested to a compensable degree within a year following discharge from service. Accordingly, service connection for diabetes mellitus is not warranted on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. REMAND Although the Board sincerely regrets the delay, after a review of the record, further development is required prior to adjudicating the Veteran's claim of entitlement to a rating in excess of 10 percent for bilateral pes planus with metatarsalgia and bone spurs. Pursuant to a May 2012 Order of the Court, the Veteran's claim for entitlement to a rating in excess of 10 percent for bilateral pes planus with metatarsalgia and bone spurs was remanded in October 2012 in order to obtain an examination to ascertain the current severity of her pes planus. Given that the May 2012 Joint Motion emphasized the need to obtain upright images of the Veteran's feet to evaluate her pes planus, the Board specifically directed that upright images of the Veteran's feet had to be performed at her VA examination. If upright images were not necessary, the examiner needed to discuss why this was so. On VA examination for flat feet in March 2013, the examiner indicated that imaging studies of the feet had been performed and were negative for degenerative or traumatic arthritis. However, the examiner did not indicate whether these imaging studies were upright images of the feet. He instead cited the x-rays that had been used in the January 2007 VA examination and had revealed tiny calcaneal spur in the right foot. The January 2007 x-rays had taken oblique and lateral images of the Veteran's feet only, and the radiologist at that time had suggested that upright images be obtained to evaluate the Veteran's flat feet. Moreover, although the March 2013 examiner noted that plain or weightbearing foot x-rays were not required to diagnose flat foot, he did not discuss why upright images of the feet were not necessary. The lack of upright imaging of the Veteran's feet or discussion of why upright images of the feet are not necessary renders the March 2013 VA examination inadequate because of the failure to provide the findings requested in the previous Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, given the specific directives in the May 2012 Joint Motion, and in order to fairly assess her claim, the Board finds that the file should be forwarded to the VA examiner who conducted the March 2013 VA examination, if available, to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the examiner who conducted the March 2013 VA foot examination, if available. The examiner should once again review the entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE). If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should determine whether upright images of the feet are necessary to evaluate the severity of the Veteran's pes planus. If the examiner determines that upright images of the feet are not necessary, he should discuss why this is so. If the examiner determines that upright images of the feet are necessary to evaluate the Veteran's pes planus, then such studies of the feet should be obtained, and the Veteran should be scheduled for such an appointment. If the previous examiner is no longer available, then the requested finding with rationale should be rendered by another qualified examiner. 2. After the development requested above has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs