Citation Nr: 1327756 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 04-12 283A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for diabetes mellitus (DM). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from March 1991 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the claim was subsequently transferred to the VA RO in Reno, Nevada. In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge in February 2006 and accepted such hearing in place of an in-person hearing before a Veterans Law Judge. A transcript of that hearing is associated with the claims file. As the Veterans Law Judge who presided over the hearing is no longer with the Board, the Veteran was given the option to have a new hearing before a current member of the Board. The Veteran did not respond to that letter. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has been previously before the Board and in June 2008, the Board denied the issue of entitlement to service connection for DM. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 memorandum decision, the Court vacated the Board's June 2008 decision and remanded the case to the Board for action consistent with the memorandum decision. In May 2011 and August 2012, the case was remanded by the Board for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the Veteran was not issued a supplemental statement of the case (SSOC) following the additional development conducted at the direction of the Board in the August 2012 remand. Further, the Veteran has submitted additional evidence in support of his claim since the claim was returned to the Board. This evidence has not been previously considered by the Agency of Original Jurisdiction (AOJ). However, as discussed below, the Board has found that the evidence currently of record is sufficient to grant the claim on appeal. Therefore, the Board finds that additional remand is unnecessary for consideration of any evidence received since the last SSOC was issued in March 2012. FINDING OF FACT DM had its onset during the Veteran's active service. CONCLUSION OF LAW DM was incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim of entitlement to service connection for DM. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has DM that is related to his active service. A review of the service treatment records (STRs) is silent for a diagnosis of DM while the Veteran was in active service. However, STRs do show that the Veteran underwent a blood sugar test in April 1996 and a glucose test in October 1997. The results of those tests were 93 and 113 respectively. In October 1997, the Veteran was afforded a physical evaluation board (PEB) examination prior to his separation. There is no indication from the examination report that the Veteran was diagnosed with DM prior to his separation from active service. In June 2011, the Veteran was afforded a VA examination. At that time, the Veteran reported that he was first told he had DM in 2001 and that he had been receiving treatment for such since that time. However, the Veteran did report that he felt his DM probably had its first onset in 1996, while still in active service, because that was when he first mysteriously started gaining weight. The examiner confirmed the diagnosis of DM and noted that he had been able to obtain and review an additional in-service glucose reading of 119 from August 1996. The examiner noted that while this reading was not found in the STRs, it was found through the VA Medical Center computer records system. The examiner opined that it was less likely as not that the Veteran's DM began in service, was otherwise related to service, or began within one year of his separation from active service. In this regard, the examiner noted that the Veteran's DM began in 2001 or 2002 and that given the Veteran's statement that he did not see a primary care physician from the time of his discharge in 1998 until 2001, it was unlikely that a diagnosis of DM could have been made during that time frame. Additionally, the examiner cited to the high glucose levels in service, but noted that a diagnosis of DM was based on two separate fasting glucose tests with results of 126 or higher and that the Veteran's elevated glucose readings in active service were not sufficient upon which to base a diagnosis of DM. Further, the examiner noted that there were some inconsistencies in the record regarding the Veteran's reported onset of DM. In October 2012, the VA examiner who performed the June 2011 VA examination provided an addendum opinion. At that time, the examiner noted that he had reviewed the entire claims file and that his opinion, which he provided in June 2011, remained unchanged. In August 2012, the Veteran submitted a letter from his VA Medical Center treating endocrinologist, Dr. C.H.C. In his letter, Dr. C.H.C. indicated that the Veteran's DM had its onset during active service. In this regard, Dr. C.H.C. noted that during his active service, the Veteran was treated for hypertension and hyperlipidemia, both of which are hallmarks of insulin resistance and metabolic syndrome. Additionally, Dr. C.H.C. referenced the elevated fasting blood sugar levels discussed by the June 2011 VA examiner, but follow-up tests to determine the level of elevation were not conducted while the Veteran was in active duty. Dr. C.H.C. noted that the Veteran should not be penalized for the lack of follow-up by the medical providers during his active duty. Dr. C.H.C. also noted that DM was usually present 2-7 years prior to diagnosis and that all of the Veteran's symptoms of DM were present during his active service, it was just not diagnosed officially until after his separation from active service. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board finds that the August 2012 opinion provided by the Veteran's VA Medical Center treating endocrinologist is the most probative evidence of record as it was definitive, based upon an evaluation of the Veteran, a complete review of the Veteran's pertinent history, and consideration of the Veteran's reported history. Additionally, the Veteran's VA Medical Center treating endocrinologist provided a detailed rationale and explanation for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In comparison, the VA examiner's opinion lacks an adequate rationale and does not account for the Veteran's subjective history, especially that which was substantiated by findings in the STRs. In sum, the Veteran first had elevated glucose readings while in active service. The Veteran was diagnosed with DM at least as early as 2001, just a few years following his separation from active service, and the Veteran's VA Medical Center treating endocrinologist has competently opined that the Veteran's DM had its onset during active service. Therefore, the Board finds that the evidence of record supports the claim and that entitlement to service connection for DM is warranted. ORDER Entitlement to service connection for DM is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs