Citation Nr: 1330850 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-10 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service, reportedly from July 1986 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in June 2010, when the claim of entitlement to service connection for diabetes mellitus was reopened and remanded for additional development. This issue was again before the Board and remanded for additional development in June 2012. The Veteran testified at a Board hearing in December 2009. A transcript of that hearing is associated with the claims file. FINDING OF FACT The Veteran's diabetes mellitus was not manifested during the Veteran's active duty service nor within one year thereafter, nor is diabetes otherwise related to service or to a service-connected disability. CONCLUSION OF LAW The Veteran's diabetes mellitus was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The record shows that a letter dated June 2010 informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The June 2010 letter also provided notice concerning the evaluation and the effective date that could be assigned should service connection be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The June 2010 letter was sent prior to the most recent RO-level readjudication of the case, as evidenced by the January 2013 supplemental statement of the case. The VCAA notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes the Veteran's service treatment records and all pertinent identified post-service medical records, including VA and private medical records. VA has afforded the Veteran a physical examination in July 2010, obtained a further addendum of the medical opinion addressing this claim in June 2012, and afforded the Veteran the opportunity to give testimony before the Board in December 2009. The Board finds that the July 2010 VA examination report, as amended by the June 2012 addendum, now properly addresses the critical questions at issue; the VA examination report presents sufficient discussion of the pertinent history, clinical findings, medical principles, and expert determinations informed by review of the claims file such that it presents adequate and probative evidence in this case. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Board finds that the actions directed by the Board's prior remands have been adequately completed in this case. In particular, the Board again notes that the July 2010 VA examination report and June 2012 addendum now present the sought probative evidence addressing the pertinent medical matters at issue in this case. The medical opinion of record now adequately addresses all of the essential questions raised by the issue on appeal, in accordance with the prior Board remands. The Board finds that the actions directed by the prior remands have been completed in substantial compliance with the terms and purposes of those directives. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Analysis The Veteran claims entitlement to service connection for diabetes mellitus. Essentially, the Veteran contends that symptoms he experienced during service were either diagnosed as diabetes mellitus during that time without being properly documented in the service treatment records or, alternatively, that the symptoms shown during service are sufficient to show that his current diabetes mellitus had its onset during his military service. Additionally, evidence of record raises and addresses the question of whether the Veteran's diabetes mellitus has been caused or aggravated by his service-connected hypertension. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Service connection is warranted 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 Court has also held that service connection can be granted 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). 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. 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"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA," with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. There is no controversy as to the fact that the Veteran currently is diagnosed with diabetes mellitus. For the purposes of this decision, the Board accepts that the Veteran currently has a diagnosis of diabetes mellitus shown by the medical evidence, including as indicated in an April 2008 private medical statement. The threshold question in this case is whether there is a nexus (an etiological link though causation or aggravation) between the Veteran's diabetes mellitus and his military service or with a service-connected disability. At his December 2009 Board hearing, the Veteran testified that he recalled experiencing possibly pertinent symptoms during service that he contends were early manifestations of his diabetes mellitus; he described "frequent" thirst (3 to 5 times per day), "frequent" urination (also 3 to 5 times per day), weakness (twice per week), and back pain (suggested to have possibly been kidney pain). He also stated that he often discussed with doctors during service that he was likely pre-diabetic at that time. The Veteran's service treatment records are of record and show no diagnosis of diabetes mellitus during the Veteran's military service. The Veteran's October 1985 service enlistment examination report shows no suggestion of diabetes mellitus, with the Veteran being found to be clinically normal in all respects except for a scar of the right leg and a hyperpigmented left ankle. A July 1987 service treatment record shows that the Veteran complained of vomiting, diarrhea, dizziness, and weakness. A June 1990 service treatment record shows a complaint of left sided kidney pain. A September 1990 service treatment record shows that the Veteran complained of sore throat, vomiting, nausea, diarrhea, restlessness, as well as "head, cough, stuffy symptoms" since the prior day. An October 1990 service treatment record shows that the Veteran was found to have a "mild hepatocellular dysfunction" at that time. The report includes a mark showing that the treating medical personnel took note of the fact that the Veteran had a family history of diabetes and hypertension; although this suggests that some medical attention was paid to the possibility of diabetes, the service treatment records do not indicate that any diagnosis of diabetes was medically found. The Veteran's October 1990 service separation medical examination report shows that the Veteran reported a history of asthma and blood pressure problems, with trained medical professionals finding that the Veteran was obese but with no other pertinent abnormalities nor any diagnosis of diabetes (the report notes the same scar and hyperpigmentation shown on the enlistment examination report). No medical diagnosis of diabetes is documented at any time during the Veteran's military service or within a year thereafter. No evidence aside from the Veteran's own allegations indicates that the Veteran was diagnosed with diabetes during military service or within a year thereafter. Some of the Veteran's testimony has suggested that, despite the absence of written documentation, he recalls being diagnosed with diabetes mellitus during service. However, the Board declines to find this assertion credible. The service medical records in this case include numerous entries over the Veteran's several years of service. This is precisely where one would expect medical personnel to have documented any diagnosis of diabetes. Moreover, the October 1990 examination was negative both on urinalysis and blood test, and the Veteran denied sugar or albumin in the urine. As noted earlier, the treatment records do include references to hepatocellular dysfunction and it may very well that the Veteran's recollection was of this period when medical personnel may have been considering the possibility of diabetes. However, no diagnosis of diabetes was made. The Veteran is not himself shown to have the medical training and knowledge to be competent to provide a medical diagnosis. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). The Veteran's recollection of his symptoms is competent evidence, but his belief that a diagnosis of diabetes mellitus was established during service is not competent evidence. A service treatment record dated in October 1990 shows a medical impression that the Veteran had "mild hepato cellular dysfunction." The report shows several lab result notations that the Board is not competent to interpret, and further includes a mark showing that the treating medical personnel took note of the fact that the Veteran had a family history of diabetes. The Board notes that this report pertains to findings made late in the Veteran's period of service, less than a year prior to his separation. The Board takes judicial notice of the fact that publicly available medical literature generally indicates that liver dysfunction may represent a manifestation of diabetes mellitus or otherwise suggest the presence of a diabetic pathology. The Veteran's contentions specifically include assertions that he experienced early signs of diabetes during his military service (prior to official medical diagnosis), and the Board's June 2009 and June 2012 remands sought to obtain a VA medical examination report to adequately address the Veteran's contentions and the pertinent evidence. The July 2010 VA examination shows that the Veteran stated that he believed he was diagnosed with diabetes mellitus in 1989 or 1990 (during service) when he complained of excessive urination and being thirsty. The VA examiner states that after his review of the entire claims-file, including the service treatment records, "I do not see any diagnosis of diabetes during his service and not within 1 year of discharge." The Board notes that its own review of the claims-file is consistent with this finding, revealing no indication of a diagnosis of diabetes mellitus during service or within a year thereafter. The examiner provides a medical opinion further explaining that "the Veteran's diabetes is not related to his service-connected hypertension." The examiner explained the rationale for this opinion, citing that "[t]he Veteran's blood pressure is very well controlled," and "[h]e does not have any hypertension-related kidney problem based on normal microalbumin and normal kidney functions." The examiner additionally expressly concludes that "the Veteran's diabetes is also not aggravated by his service-connected hypertension," citing the same information regarding the good control of blood pressure and the absence of any abnormal kidney function. The Board finds that the July 2010 VA examination report is probative evidence with regard to its opinion that the Veteran's diabetes is not caused or aggravated by his service-connected hypertension. In this regard, the report presents a competent medical opinion informed by thorough review of the claims-file and direct examination and interview of the Veteran, and explains a rationale that cites medically pertinent clinical findings. The probative weight of the July 2010 VA examination report is against finding that the Veteran's diabetes mellitus has been caused or aggravated by his service-connected hypertension; the VA medical examiner's conclusion expressly finds that such a link is unlikely. The original July 2010 VA examination report did not adequately address the Veteran's theory of direct service connection and the pertinent evidence concerning in-service symptoms and liver dysfunction. With regard to the direct theory involving potentially pertinent in-service abnormalities, the July 2010 VA examination report merely states: "I do not see any diagnosis of diabetes during his service and not within 1 year of discharge. Therefore, his diabetes mellitus is not linked to his service in the military." This appears to assert that the examiner ruled out a link between diabetes and military service strictly on the basis that no diagnosis of diabetes was documented during military service or the presumptive period following. The Board's June 2012 remand of this issue sought additional development to address the direct theory of service connection. The Veteran's contention is that his diabetes mellitus manifested during service prior to being officially diagnosed. The resulting June 2012 addendum to July 2010 VA examination report, prepared by the same VA examiner, states that the claims-file was re-reviewed for the purposes of evaluating and addressing the Veteran's pertinent specific contentions. The VA examiner concluded that the Veteran's diabetes "is less likely as not linked to the Veteran's service." The VA examiner explained his analysis and consideration of information leading to this conclusion, featuring his medical determination that the diabetes has "no relationship with his liver dysfunction" and that the diabetes has "no relationship with ... his lay statement of frequent thirst, urination, weakness, and back pain." The VA examiner's rationale for his conclusion cited the fact that he "did not find any evidence of high plasma, glucose or diagnosis of diabetes." The Board finds that the June 2012 addendum to the July 2010 VA examination report is probative evidence adequately addressing the Veteran's contentions with a competent medical determination informed by the pertinent facts. The probative weight of the June 2012 addendum to the July 2010 VA examination report is against the Veteran's claim because the examiner concludes that it is less likely than not that the Veteran's current diabetes mellitus is linked to his military service. The Board finds that the evidence does not support any basis for granting the claim of entitlement to service connection for diabetes mellitus. The preponderance of the evidence is against finding any etiological link to service for diabetes mellitus. The competent evidence indicates that the Veteran's diabetes mellitus pathology was not manifested during service or within a presumptive period following service; the competent evidence indicates no nexus, through causation or aggravation, between the diabetes mellitus and the Veteran's military service. Additionally, the competent evidence indicates that the Veteran's diabetes mellitus has not been caused or aggravated by his service-connected disability. Conclusion The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus. In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the issue on appeal. The Board acknowledges that the claims file contains a quantity of other documents, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the evidence deemed to be most probative in the discussion above. Here, the evidence weighs against finding that any of the Veteran's diabetes mellitus is etiologically linked to military service or linked to any service-connected disability. The Veteran has been afforded a VA examination with medical opinion to ensure adequate competent medical evidence addressing the diabetes service connection claim. The evidence now presents adequate medical information and opinion in connection with these claims; the July 2010 VA examination report and June 2012 addendum have provided clear findings and opinions with persuasive discussions of rationale weighing against the diabetes mellitus service connection claim on all pertinent bases. The VA examiner's pertinent findings and opinions address, with persuasive rationale, the pertinent facts and evidence of record; the Board finds that the July 2010 VA examination report, with the June 2012 addendum, is the most probative evidence of record on this issue. Significantly, no competent medical opinion contradicts the VA examiner's conclusions or otherwise provides a basis for granting the Veteran's service-connection claim. The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). In this case, however, the most persuasive evidence persuasively establishes that the Veteran had no symptom complaints attributable to diabetes mellitus during service or proximately following service. He had no shown diagnosis of diabetes mellitus during service or proximately thereafter, and the probative July 2010 VA examination report with a June 2012 addendum explains that the Veteran's in-service symptom complaints were unlikely to have been manifestations of diabetes mellitus at that time. That is, although the Veteran's testimony may indicate a continuity of some symptoms, the competent medical evidence indicates that the occurrence of those symptoms during service and proximately thereafter were not related to any diabetes mellitus pathology. The evidence in this case does not show continuity of symptomatology associated with a chronic disability for the purposes of application of 38 C.F.R. § 3.303(b). The Board acknowledges the Veteran's belief that his diabetes mellitus is related to his military service; the Board also acknowledges that the Veteran believes that his in-service symptoms were manifestations of diabetes mellitus. However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability. The Board finds that questions of identifying the specific etiology of complex internal pathologies such as diabetes mellitus are medical questions requiring specialized knowledge and expertise; such questions are not generally resolvable through information available to lay senses. Consequently, the Veteran's own assertions as to diagnosis and etiology of diabetes mellitus have no probative value. The Veteran's own assertion that his in-service symptom complaints represented in-service manifestation of diabetes mellitus also have no probative value. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology). However, a determination concerning diagnosis of a specific complex internal disease or a determination concerning the possibility of a causal relationship between two different complex disease pathologies requires specialized training, and may therefore not be established by lay opinions on etiology or diagnosis. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection in this case, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A. § 5107. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs