Citation Nr: 1329093 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-14 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for a skin disorder to both lower extremities, to include as secondary to type II diabetes mellitus. 3. Entitlement to service connection for osteomyelitis to the left lower extremity, to include as secondary to type II diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1970 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This case was previously before the Board in January 2011. In a January 2011 Board decision, the Board reopened the skin disorder and osteomyelitis claims based on a finding that new and material evidence had been submitted. Thus, at present, only the underlying service connection issues remain on appeal. In the same January 2011 decision, the Board remanded the service connection issues for further development. A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated in 2010. In any event, in the April 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records. Thus, there is no prejudice to the Veteran if the Board considers this evidence. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2012); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board will remand the claim of service connection for osteomyelitis to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has type II diabetes mellitus that first manifested during his military service. 2. A skin disorder to both lower extremities is proximately due to or the result of the Veteran's service-connected type II diabetes mellitus disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, type II diabetes mellitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A skin disorder to both lower extremities is secondary to the service-connected type II diabetes mellitus disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For the type II diabetes mellitus and skin disorder issues being granted, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2005, April 2008, January 2011, and March 2011. In any event, since the Board is granting the claims of service connection for type II diabetes mellitus and secondary service connection for a skin disorder to the lower extremities, there is no need to discuss in detail whether there has been compliance with the notice and duty to assist provisions of the VCAA because even if, for the sake of argument, there has not been, this is inconsequential and, therefore, at most harmless error. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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. 223, 225 (1992). Competent medical evidence means 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 mean 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). 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. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for Type II Diabetes Mellitus The Veteran dates the onset of his current type II diabetes mellitus to his active military service in the 1970s. He maintains that his service records document elevated levels of glucose and cholesterol, indicating the initial onset of type II diabetes mellitus. He says he has had high blood sugar since service. He adds that his in-service treatment for skin problems and cellulitis to the feet and angina were also indicative of early symptoms of type II diabetes mellitus. However, he believes military medical personel failed to adequately diagnose and treat his type II diabetes mellitus at this early stage, causing the latter worsening of the conditon, to the point that he is now totally disabled. See February 1999 and May 2005 claims; June 2000, November 2000, May 2005, January 2011 Veteran's statements; December 2010 Brief. Upon review of the evidence of record, the Board grants the appeal for service connection for type II diabetes mellitus. The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran currently has the claimed disability. 38 U.S.C.A. §§ 1110, 1131; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Here, VA and private treatment records dated in the late 1990s and throughout the 2000s document a diagnosis of and treatment for type II diabetes mellitus. Earlier private treatment records dated in 1998 note at least a 10-year history of diabetes with prescription medication used to treat it. Thus, there is probative evidence of current type II diabetes mellitus. Consequently, the determinative issue is whether the Veteran's type II diabetes mellitus is attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Service treatment records (STRs) contain no clear diagnosis for type II diabetes mellitus. However, an October 1974 STR recorded treatment for borderline two-hour post prandial blood glucose. On the same occasion the Veteran was treated for pain and swelling of the left foot with pitted edema and cellulitis. There was a notation to R/O (rule out) diabetes mellitus at that time. Numerous STRs also established treatment for repeated skin problems and cellulitis to the feet. No other STRs reveal elevated blood sugar readings. Post-service, private treatment records document a history of type II diabetes mellitus at least back to the late 1980s. The Veteran's health has considerably worsened over time due to not only his type II diabetes mellitus, but also his hypertension, coronary artery disease, peripheral vascular disease, and resulting amputations to both lower extremities. He is now considered totally disabled (100%) due to service-connected disability and is receiving special monthly compensation from VA. Post-service, with regard to a nexus, the evidence of record is mixed as to whether the Veteran's current type II diabetes mellitus is related to symptoms and treatment during his military service. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). That is, the medical and lay evidence of record on this determinative issue of nexus includes several favorable and unfavorable medical opinions of record. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: 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 that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to the negative evidence against the claim, in December 2006, a VA medical examiner opined that the Veteran is "less likely as not" to have had diabetes in service. The VA examiner noted that in 1974 the Veteran had an acute infection and borderline post prandial blood sugar. In modern terminology, the VA examiner remarked that this would constitute impaired glucose tolerance, but would not equate to a diagnosis of diabetes. The VA examiner noted that earlier blood sugar readings in 1972 were within a normal range, and he could not locate a blood sugar reading for the 1974 entry. (The Board observes this is not correct as an October 1974 STR recorded a blood sugar reading of 94). The VA examiner also found that at the time of discharge in April 1978 the Veteran did not exhibit any evidence of having diabetes. This opinion provides probative evidence against the claim. As to the positive evidence in support of the claim, in an August 2006 private medical opinion, Dr. N.R., MD., opined that the Veteran had complications of diabetes as far back as 1973 during service, in the form of elevated blood glucose, foot sores, and chest pain suspicious for angina. Dr. N.R. concluded the Veteran "undoubtedly" had diabetes and its complications while in the military service. As to the positive evidence in support of the claim, in an October 2006 private medical opinion, Dr. L.R., MD., assessed that the onset of the Veteran's diabetes were documented in STRs noting a report of elevated glucose levels and a two hour post prandial that showed abnormal results with no follow up testing for diabetes. Dr. L.R. remarked that many of the Veteran's current medical problems could have been avoided if the early onset diabetes had been addressed in a timelier manner by military medical personnel. Both of the above private medical opinions were thorough, supported by an explanation, based on a review of the pertinent evidence of record, and supported by some of the evidence of record. They provide probative evidence in support of the type II diabetes mellitus claim. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of the positive and negative evidence. In the present case, both the favorable and unfavorable medical opinions of record have respective weaknesses and strengths in probative value. And merely because type II diabetes mellitus was not diagnosed during service, does not preclude service connecting it where, as here, there is probative medical evidence relating the disorder to elevated blood sugar readings and other symptomatology during service. See 38 C.F.R. § 3.303(d). Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for type II diabetes mellitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Governing Laws and Regulations for Secondary Service Connection A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis - Secondary Service Connection for a Skin Disorder to the Lower Extremities The Veteran contends that he has a current skin condition to the lower extremities that is a complication of his service-connected type II diabetes mellitus. He says this skin condition has been present both in-service and post-service. The Veteran adds that this skin condition has persisted on what remained of his legs after his below the knee amputation of the left lower extremity in April 1999 and the above the knee amputation of the right lower extremity in April 2002. See December 2010 Brief; May 2005 Veteran's statement; September 2006 NOD. The Veteran is now service connected for type II diabetes mellitus by way of the Board's present decision. The Board grants the appeal and finds that secondary service connection for a skin disorder to both lower extremities is warranted. The threshold criterion for service connection - on either a direct or secondary basis, is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. A December 2006 Lourdes Medical Center consult revealed diabetic skin changes to the lower extremities. A November 2007 Lourdes Medical Center nutritional assessment documented that the Veteran's skin was "impaired" at the wounds of the amputated limbs. An earlier October 2002 Associated Physiatrists private medical report assessed bilateral lower extremity psoriasis, ulceration, and scaling. Thus, there is probative evidence the Veteran has a current a skin disorder to both lower extremities. Although private and VA treatment records dated from 2007 to 2012 often document no rash or skin problems in the lower extremities, it still appears that flare-ups occur. The Board is aware of the Court's decision in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case which, similar to the present case, concerned a skin disorder that fluctuated in its degree of disability, that is, a skin disorder which had "active and inactive stages" or was subject to remission and recurrence. The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to secondary service connection, most importantly, there is probative medical evidence of record that demonstrates the Veteran's current skin disorder to both lower extremities is proximately due to or the result of his service-connected type II diabetes mellitus or hypertension disabilities. 38 C.F.R. § 3.310(a); Velez v. West, 11 Vet. App. 148, 158 (1998). (The Board notes that the Veteran's anatomical loss of both feet was already service-connected as secondary to his hypertension). Specifically, Dr. L.R. in her October 2006 medical opinion opined that the Veteran's history of multiple skin infections "could arise" from increased glucose levels from diabetes. More importantly, Dr. N.R. in his August 2006 medical opinion determined that the Veteran had "complications" of diabetes such as foot sores and blisters since service. Overall, these opinions provide strong evidence in support of secondary service connection for a skin disorder to both lower extremities. Accordingly, the evidence supports secondary service connection for a skin disorder to both lower extremities. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appeal is granted as to that issue. The Board is granting secondary service connection for a skin disorder to both lower extremities on the basis of being the direct result of the Veteran's service-connected type II diabetes mellitus, as opposed to aggravation. ORDER Service connection for type II diabetes mellitus is granted. Service connection for a skin disorder to both lower extremities on a secondary basis is granted. REMAND Before addressing the merits of the issue of service connection for osteomyelitis, the Board finds that additional development is required. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In any event, the Court routinely vacates Board decisions based on this situation. Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous January 2011 remand directives as to the osteomyelitis issue on appeal. In this regard, in the January 2011 Board decision, the Board had already reopened the osteomyelitis claim based on a finding that new and material evidence had been submitted. Thus, in the January 2011 Board remand, the Board instructed the RO to issue a SSOC on the underlying issue of service connection for osteomyelitis, after development was complete. See 38 C.F.R. § 19.31(c). Thus, only the service connection issue for osteomyelitis remained on appeal. Regardless, the RO in its April 2012 SSOC incorrectly determined that new and material evidence had not been submitted to reopen the claim for service connection for osteomyelitis, despite the Board's prior reopening of the claim. As such, the RO failed to adjudicate the merits of the underlying service connection claim for osteomyelitis. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim). VA regulations provide that a SOC or SSOC must be complete enough to allow the Veteran to present his or her argument before the Board and must contain a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 19.29 (2012). The April 2012 SSOC did not include a citation and discussion of the relevant regulations for service connection (38 C.F.R. § 3.303), since the RO only considered new and material evidence. The Board cannot consider whether the Veteran meets the requirements for service connection for osteomyelitis without prior consideration by the RO, as this would be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Therefore, on remand, the RO / AMC should issue a SSOC adjudicating the issue of service connection for osteomyelitis on the merits. Accordingly, the service connection for osteomyelitis issue is REMANDED for the following action: The RO must consider all of the evidence of record, and readjudicate the issue of service connection for osteomyelitis to the left lower extremity, to include on a secondary basis. (The claim has already been reopened such that the issue of new and material evidence is no longer on appeal). If the benefit sought is not granted, issue a SSOC and allow the Veteran and his representative an opportunity to respond. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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). 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). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs