Citation Nr: 1333117 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-40 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II. 2. Entitlement to service connection for peripheral neuropathies of the bilateral upper and lower extremities, claimed as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In that rating decision, the RO denied service connection for diabetes and diabetic peripheral neuropathies and declined to reopen a claim for service connection for posttraumatic stress disorder (PTSD). The Veteran timely perfected an appeal of the rating action. This case was previously before the Board in June 2013 at which point the Board reopened the claim for PTSD based on the submission of new and material evidence and denied the claim on the merits. The issues regarding diabetes mellitus and peripheral neuropathy were remanded for additional development. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the June 2013 remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 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 Virtual VA claims file shows VA treatment records dated from July 2009 through June 2013, which were considered by the AOJ in an August 2013 supplemental statement of the case, and the Veteran's representative's August 2013 Appellant's Post-Remand Brief. FINDINGS OF FACT 1. Diabetes mellitus, Type II, is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 2. Peripheral neuropathy of the bilateral upper and lower extremities is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus type II was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the bilateral upper and lower extremities is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a December 2008 letter, sent prior to the initial unfavorable rating decision issued in April 2009, and a June 2013 letter advised the Veteran of the evidence and information necessary to substantiate her claims for service connection, to include, as relevant to her peripheral neuropathy claim, on a secondary basis, as well as her and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised her of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the June 2013 letter was issued after the initial April 2009 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the June 2013 letter was issued, the Veteran's claims were readjudicated in the August 2013 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment and personnel records, as well as VA and private treatment records, have been obtained and considered. Furthermore, records regarding an award of disability benefits through the Social Security Administration (SSA) have been obtained. The Veteran has not identified any additional relevant and outstanding records that have not been requested or obtained. The Veteran was also afforded a VA examination in July 2013 with respect to the issues decided herein. Neither the Veteran nor her representative has alleged that such examination is inadequate. Moreover, the Board notes that the VA examiner offered reasoned opinions based on interview with the Veteran, a review of the record, and a full examination. Moreover, he cited to the relevant evidence within the claims file and offered clear conclusions with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. As indicated previously, in June 2013, the Board remanded the case for additional development, to include affording the Veteran a VA examination in order to determine the current nature and etiology of her diabetes, which was accomplished in July 2013. The Board also remanded the case to obtain records from the Social Security Administration, which was accomplished in July 2013. The Board also found that there were outstanding private treatment records from Kentucky Physical Medicine and "OSH" as well as outstanding records from the Veteran's employer, Verizon, regarding a worker's compensation claim and receipt of employment disability benefits through MetLife. The AOJ requested that the Veteran submit a signed authorization form in order to obtain these outstanding records in June 2013. Unfortunately, the Veteran did not respond to this letter. The duty to assist is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (Veteran cannot passively wait for help from VA). Thus VA is not required to provide any more assistance to her with regard to these private records, as the Veteran did not complete and return the required authorization form, or otherwise provide the information that was requested of her in June 2013. 38 U.S.C.A. § 5102(a). Therefore, the Board finds that the AOJ has substantially complied with the June 2013 remand directives such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini, 1 Vet. App. at 546; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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). The Veteran is seeking service connection for diabetes mellitus, Type II, and peripheral neuropathy of the bilateral upper and lower extremities associated with her diabetes mellitus, Type II. The Veteran claims that her current diabetes mellitus, type II, is due to her suffering from gestational diabetes during her in-service pregnancy. Significantly, service treatment records show that the Veteran became pregnant during her military service and was approximately two months pregnant during her January 1970 separation examination. Post-service records show that the Veteran gave birth in August 1970. She further alleges that she has peripheral neuropathy associated with her diabetes mellitus. The Veteran's service treatment records do not show any treatment or diagnosis of diabetes mellitus or peripheral neuropathy. Further, the Veteran's January 1970 separation examination is silent with respect to any finding of diabetes mellitus. Private treatment records show that the Veteran was diagnosed with diabetes mellitus, type II, in approximately 1998, many years after her discharge from service. Significantly, an August 2003 private treatment record shows that the Veteran was diagnosed with diabetes in 1998 (at the age of 43). Also, June 2001 private treatment records show an onset of diabetes three years earlier (i.e., 1998). Therefore, as the Veteran did not manifest diabetes mellitus, Type II, within one year of her service discharge in January 1970, she is not entitled to presumptive service connection for such disease. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Furthermore, as will be discussed below, the Board finds the Veteran's allegations of continuity of symptomatology with respect to both diseases to be not credible. See Walker, supra. Moreover, there is no competent evidence linking diabetes mellitus directly to the Veteran's military service. As above, in June 2013 the Board remanded this case for a VA medical examination and opinion. The examiner was asked to offer an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus began during service or is otherwise causally related to any incident of service, to include her in-service pregnancy. The examiner was also directed to indicate whether the Veteran had diabetes mellitus within one year of her service discharge in January 1970 and, if so, to describe the manifestations. In offering any opinion, the examiner was asked to consider the full record, to include the Veteran's service treatment records, post-service treatment, and contentions as well as her authorized representative's citation to research from the Mayo Clinic and the National Institutes of Health. See May 2013 brief, stating "women with unmanaged gestational diabetes are at increased risk of developing Type 2 diabetes mellitus." If determining that the Veteran's diabetes is etiologically related to any incident of her active duty service or manifested within one year of her January 1970 discharge, the examiner was also asked to determine whether it was at least as likely as not that she has peripheral neuropathy of the bilateral upper and lower extremities related to her diabetes. In response to the June 2013 Board remand, the Veteran was afforded a VA examination in July 2013. The examiner reviewed the claims file and noted that the Veteran was diagnosed with diabetes mellitus in April 1998. He further indicated that there was no current, past, or neurophysiologically-based diagnosis of diabetic peripheral neuropathy; rather, she was diagnosed with bilateral carpal tunnel syndrome based on current, historical, and electrophysiological evidence. With regard to the medical opinion requested by the Board, the examiner noted that there was abundant evidence that gestational diabetes was not diagnosed as part of the Veteran's in-service pregnancy. The evidence included the following: 1) A UK Chandler Hospital summary dated in August 1970 indicating a term delivery with two complications (post-partum endometritis and a third degree laceration) with no mention of gestational diabetes. If gestational diabetes was present, the examiner noted this would have warranted close attention and comment, yet none was made. 2) The service treatment records prior to separation are negative for any mention of diabetes mellitus for this Veteran which might have impacted the pregnancy and are negative for any disease process which might produce diabetes mellitus. 3) The Veteran was only evaluated for gestational diabetes during her 1970 pregnancy urinalysis but underwent blood testing to explicitly evaluate for this condition. The Veteran had a blood sugar test taken at 10:00 am in June 1970 with a result of 72 mg/dL. A note on the form indicated that the Veteran at 10:00am. A second test was taken at 12:00, which constituted a two hours postprandial level, and was found to be 118 md/dL, which is well below the threshold for a diagnosis of gestational diabetes (see "Screening and diagnosis of diabetes mellitus during pregnancy" at uptodate.com). In summary, the July 2013 VA examiner found that there was no evidence in the claims file of gestational diabetes, or of any other condition likely to produce diabetes mellitus during service or in the year after service. With regard to the contention from the Veteran's representative regarding women with unmanaged gestational diabetes being at increased risk of developing Type 2 diabetes mellitus, the examiner agreed that gestational diabetes was, indeed, a strong risk factor for developing subsequent diabetes mellitus, Type II. Finally, with regard to the request for a medical opinion regarding peripheral neuropathy and/or carpal tunnel syndrome, the examiner indicated that such an opinion was not necessary in this case as diabetes mellitus had not been found to be associated with the Veteran's military service or incurred within one year of the Veteran's military service. As the July 2013 VA examiner offered reasoned opinions based on interview with the Veteran, a review of the record, and a full examination, with citation to relevant evidence, and offered clear conclusions with supporting data and reasoned medical explanations, the Board accords such opinion great probative weight.. See Nieves-Rodriguez, supra; Stefl, supra. There is no medical opinion to the contrary. Further, the Veteran is not competent to directly link her diabetes mellitus and peripheral neuropathy to service as medical expertise is required. Nevertheless, lay assertions may serve 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report treatment for gestational diabetes mellitus in service and any pertinent symptoms since service. However, she is not competent to directly link any current disability, to include diabetes mellitus and peripheral neuropathy, to service as medical expertise is required. In this regard, the question of causation in this case involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such concerns the inner workings of the endocrine and nervous systems. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Moreover, the Board finds the Veteran's assertion that she was treated for diabetes mellitus in service and has experienced pertinent symptoms since service to be not credible. In the instant case, while the Veteran is competent to testify to diabetic and associated neuropathic symptomatology, such as increased thirst and tingling and numbness in the extremities, since service, the Board finds that such statements are not credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. See Caluza, supra. Importantly, while service treatment records showed complaints of other unrelated disorders, they are silent with respect to any findings of diabetes mellitus, Type II, or related symptoms, to include peripheral neuropathy. Moreover, the Veteran's January 1970 separation examination revealed no diagnosis of diabetes mellitus, Type II, or any findings referable to her extremities. The Board finds such evidence, made contemporaneous to service, to be more probative than her statements made many years after his service discharge and in connection with his claim for VA benefits. Moreover, the first post-service evidence of a diagnosis of diabetes mellitus, type II, was in April 1998, approximately 28 years after service. Likewise, the first report of having diabetes mellitus, in service was in her September 2008 claim on appeal, over 38 years after service. Therefore, the Veteran's current statements, made in connection with her pending claim for VA benefits, that she was treated for diabetes mellitus, type II, in service, is inconsistent with the contemporaneous evidence. Accordingly, while her contentions have been carefully considered, neither these contentions nor the clinical record establish an in-service disease or continuity of symptomatology such as to serve as a basis for a grant of service connection. The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board, however, finds in the instant case that the combination of the Veteran's inconsistent statements and the fact that her post-service treatment records are negative for any findings for approximately 28 years after her service discharge to be persuasive evidence against her claim. In sum, the Board must conclude that with no evidence of diabetes mellitus, type II, in service or for many years after discharge from service, and no competent evidence of record suggesting a link between the Veteran's current disease and her active duty service, there is no basis for awarding service connection for diabetes mellitus either on a direct basis or under the one-year presumption. The Board further notes that the Veteran alleges that service connection for peripheral neuropathy of the bilateral upper and lower extremities is warranted as secondary to diabetes mellitus, Type II. In this regard, she does not allege, nor does the record reflect, that she first manifested peripheral neuropathy during service or that such is otherwise related to service on a direct basis. Specifically, the Veteran's service treatment records are negative for complaints, treatment, or diagnoses of peripheral neuropathy. Rather, the Veteran has claimed that she currently has peripheral neuropathy as a result of diabetes mellitus type II. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). However, as discussed previously, the July 2013 VA examiner indicated that there was no current, past, or neurophysiologically-based diagnosis of diabetic peripheral neuropathy; rather, the Veteran was diagnosed with bilateral carpal tunnel syndrome based on current, historical, and electrophysiological evidence. Moreover, as the Veteran is not entitled to service connection for diabetes mellitus, Type II, under the law, she lacks legal grounds to establish entitlement to service connection for peripheral neuropathy (or carpal tunnel syndrome) as secondary to such disease. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused or aggravated her peripheral neuropathy, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for peripheral neuropathy as secondary to diabetes mellitus type II is without legal merit. Id. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for diabetes mellitus, Type II, and peripheral neuropathy. As such, that doctrine is not applicable in the instant appeal, and her claims must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for diabetes mellitus, Type II, is denied. Service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs