Citation Nr: 1330257 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-32 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, including as secondary to the service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from April 1979 until April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded by the Board in July 2011 for further evidentiary development and due process reasons. In March 2013, the Board requested a Veterans Health Administration opinion (VHA) pursuant to 38 C.F.R. § 20.901(d) (2013). The VHA opinion was received in May 2013 and incorporated into the record. The Veteran and his representative were provided copies of the opinion and provided a period of 60-days to provide additional argument or evidence. See 38 C.F.R. § 20.903 (2013). No additional evidence was received. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT The preponderance of the evidence of record reflects that the Veteran's diabetes mellitus did not have its onset during military service or within the initial post-service year and is not otherwise etiologically related thereto, nor has it been caused or aggravated by the service-connected lumbar spine disability. CONCLUSION OF LAW The criteria to establish service connection for diabetes mellitus, to include as secondary to a lumbar spine disability are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This 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). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In the instant case, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in a notice letter sent in September 2008. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim. Pertinent medical evidence associated with the claims files consists of service and VA treatment records. Pursuant to the Board's July 2011 remand, the Veteran was afforded a VA examination in August 2011 at which time the VA examiner opined that the Veteran's diabetes mellitus was not caused by or a result of his service-connected lumbar spine disability. However, the VA examiner did not address whether the Veteran's diabetes had its onset in service or within one year of the Veteran's discharge from service. Furthermore, the examiner failed to specifically address whether the Veteran's diabetes was caused by or related to weight gain, precipitated by his service-connected lumbar spine disability. Accordingly, as noted in the Introduction above, in March 2013, the Board requested a specific VHA opinion determine the etiology of the Veteran's diabetes mellitus. This opinion was provided by an endocrinologist in May 2013. A copy of the May 2013 VHA opinion has been associated with the claims file. The endocrinologist's opinion is adequate for decision-making purposes, as it included a full review of the Veteran's claims file, including the service treatment records and extensive post-service treatment records, is supported by sufficient detail, refers to specific documents and medical history, as well as medical literature, and is supported by sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Indeed, the medical evidence has been thoroughly developed in this case. As explained below, the competent and credible evidence fails to support a finding that any currently diagnosed diabetes mellitus is etiologically related to his period of active military service or to his service-connected diabetes mellitus. Thus, no additional medical examination or opinion is necessary under the circumstances of this case. Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his attorney, on his behalf. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that 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. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including 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 service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen. 38 C.F.R. § 38 C.F.R. 3.310 (2013). The amended 38 C.F.R. § 3.310 limits service connection on the basis of aggravation to those situations in which medical evidence created prior to the alleged aggravation establishes a baseline for the disability prior to aggravation. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Veteran contends that he currently has diabetes mellitus as a result of his period of active duty service. He specifically contends that the diabetes is secondary to his service-connected lumbar spine disability. In this regard, in an August 2008 statement, the Veteran asserted that his diabetes mellitus is a result of his weight gain, which is the result of his inability to exercise because of his service-connected lumbar spine disability. With regard to the merits of the claim, within the July 2011 Board remand and March 2013 OMO request, the Board examined the pertinent medical evidence of record which includes a July 2008 VA medical opinion. As such, all evidence discussed in the July 2011 Board remand and March 2013 VHA opinion request is incorporated herein. Electronically stored VA treatment records dated from May 2011 to April 2013 do not relate the Veteran's diabetes mellitus to his active service or to his service-connected lumbar spine disability. In response to the Board's March 2013 request, the May 2013 VHA expert opined that "[i]t is not likely that there is a 50 percent or greater probability that the [Veteran's] diabetes mellitus had its onset in service or within one year of his discharge from service." The medical expert also opined that "[i]t is not likely that there is a 50 percent or greater probability that the [Veteran's] diabetes mellitus is proximately due to or the result of weight gain precipitated by an inability to exercise because of his service-connected lumbar spine disability." The rationale provided was based in part on medical literature which states that "T2DM is thought to occur in genetically predisposed persons who are exposed to a series of environmental influences that precipitate the onset of clinical disease [diabetes mellitus]." Risk factors for type II diabetes mellitus include a family history of diabetes mellitus, cardiovascular disease, being overweight or obese, a sedentary life style, non-white ancestry, high blood pressure, previously identified impaired glucose intolerance, impaired fasting glucose and/or metabolic syndrome, increased levels of triglycerides, and low concentrations of high-density lipoprotein cholesterol, or both. The medical expert provided a detailed explanation regarding the role of insulin production in [the development of] diabetes mellitus and explained that the Veteran's claim that weight gain caused an onset of diabetes mellitus cannot qualify as a cause of diabetes mellitus, since weight gain is only one risk factor that can increase the likelihood of onset of diabetes mellitus. With regard to the matter of whether the Veteran's weight gain was precipitated by an inability to exercise due to his lumbar spine disability, which in turn aggravated his non-service connected diabetes mellitus, the medical expert opined that "[i]t is not likely that there is a 50 percent or greater probability that there had been weight gain precipitated by an inability to exercise because of his service-connected lumbar spine disability, which in turn aggravated his non-service connected diabetes mellitus." Specifically, there has not been an increase in the severity of the [Veteran's] diabetes mellitus beyond the natural progression of the disease." The medical expert explained that diabetes mellitus management includes emphasis on use of appropriate medications for treatment of diabetes mellitus and lifestyle changes that include healthy eating habits, low calorie diet, and physical activity to help achieve weight loss. The medical expert explained that several factors contribute to weight gain and lack of physical activity is an important factor, but not the sole basis for weight gain; other factors that can contribute to weight gain include sleep deprivation, smoking cessation, social influences, over eating, and the use of certain medications. Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The professional credentials and experience of opinion providers are properly considered in assigning probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). With these considerations in mind, the Board finds that the favorable opinion of the July 2008 VA primary care physician Dr. W.S., that it was possible that the Veteran's diabetes mellitus could be related to his back injury, given his weight gain an obesity. However, the VA physician failed to provide a well-reasoned rationale to support his opinion in favor of the claim or identify the underlying medical basis leading to his conclusion. See Nieves-Rodriguez v. Peake, 22Vet. App. 295 (2008) (holding that the probative value of a medical opinion is dependent on the rationale provided); see also Bloom v. West, 13Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board also points out that the VA physician's use of the words "possible" in his opinion relating the Veteran's current diabetes mellitus to his service-connected lumbar spine disability makes the opinion speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). The Veteran has not provided any competent medical evidence to rebut the May 2013 outside medical expert's determination against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). On the other hand, and as previously discussed, the May 2013 VHA expert conducted a full review of the Veteran's claims file and the opinions are supported by sufficient detail and sufficient rationale. In addition, unlike the VA physician's July 2008 opinion, the VHA opinion addresses the theories of direct, secondary, and presumptive service connection for the Veteran's diabetes mellitus. Accordingly, the Board has accorded greater evidentiary weight to the outside medical expert's opinions. The Board finds that the claim must be denied. The Veteran was not shown to have diabetes mellitus during service. Rather, the earliest post-service medical evidence of any relevant findings is dated in December 2007. This is about 26 years after separation from active duty service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weight heavily against the claim). In this regard, the only competent opinion of record is the May 2013 VHA opinion stating the following: that it is not likely that the Veteran's diabetes mellitus had its onset in service or within one year of his discharge from service; is not likely proximately due to or the result of weight gain precipitated by an inability to exercise because of his service-connected lumbar spine disability; or that the Veteran's weight gain was precipitated by an inability to exercise because of his service-connected lumbar spine disability. There is also no persuasive evidence that the Veteran has been experiencing chronic symptoms of diabetes mellitus since service. He really makes no such contention. Put another way, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), a presumption of service connection (38 C.F.R. § 3.307, 3.309), or continuity of symptomatology (38 C.F.R. § 3.303(b)) is not established. 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, an opinion as to the etiology and onset of type II diabetes mellitus and whether this disease is etiologically related to the Veteran's active service or to his service-connected lumbar spine disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Diabetes mellitus is not the type of condition/disease that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that urine and/or blood testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms such as thirst, nausea, urinary frequency, and fatigue, there is no indication that the Veteran is competent to etiologically link any such symptoms to his active service or to his service-connected lumbar spine disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating endocrine disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus on either a direct, presumptive, or secondary basis. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [Continued on Next Page] ORDER Service connection for diabetes mellitus, including as secondary to the service-connected lumbar spine disability, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs