Citation Nr: 1333737 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-13 543A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from September 1985 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied the Veteran's claims of entitlement to service connection for diabetes and hypertension. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's currently diagnosed diabetes is etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against a finding that the Veteran's currently diagnosed hypertension is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Diabetes was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Hypertension was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 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. See 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). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in October 2007 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. While in his initial notice of disagreement, the Veteran expressed concern that all relevant medical records had not been associated with the Veteran's claims file, a review of the file at this point shows what appears to be a complete service treatment record file, and all available private and VA records identified by the Veteran. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board finds that the scheduling of an examination is unnecessary, as the Board does not dispute the diagnoses of diabetes or hypertension, and there is no credible lay evidence or competent medical evidence of record suggesting an association with service. As such, the criteria for obtaining a medical examination or opinion are not met. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Law The Veteran claims that he has diabetes and hypertension. Specifically, he asserts that he was diagnosed with diabetes in service, and that his diagnosis of hypertension is secondary to that diagnosis. For the below reasons, service connection is denied for these claims. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as diabetes and hypertension, become manifest to a degree of 10 percent within one year of separation from active service, then they would be presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no evidence of record showing either of these disabilities manifesting to such a degree with one year of service, therefore, service connection on a presumptive basis is not warranted. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first 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). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis Considering all evidence of record, the Board finds that service connection is not warranted for either diabetes or hypertension. In this regard, the Board notes there is simply no evidence of record diagnosing the Veteran with either of these disabilities until years after his separation from service, and there is no medical evidence of record linking either of these disabilities to service. The Veteran's service treatment records show no diagnosis of, or treatment for, either of these conditions. There is no indication that the Veteran had elevated glucose readings in service. The Veteran's blood pressure was tested numerous times in service; his highest diastolic in service was 89 on one occasion, with a lower diastolic at all other times, and his highest systolic was 148, with a lower systolic at all other times. These readings do not meet the criteria for a diagnosis of hypertension, which requires that the diastolic blood pressure is predominantly 90mm. or greater, or that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board finds the contemporaneous clinical records and test results in service to be inherently more credible than the Veteran's reports years later in support of his claim. The Board also notes that, post service, in January 2002, the Veteran received blood testing which showed a blood glucose of 97, within the range of normal. A January 2002 VA fee basis examination conducted for prior unrelated claims noted a blood pressure of 120/88, within normal limits. That examination did not incidentally note any findings of diabetes or hypertension. The first documented evidence of record showing a diagnosis of diabetes is from June 2007, when the Veteran was found to have extremely elevated glucose during blood work and was diagnosed with diabetes at that time. The medical evidence of record shows a diagnosis of diabetes since that time, with varying glucose readings. However, no medical evidence of record links the Veteran's diagnosis of diabetes, eleven years after the Veteran's separation, to service, and the Board notes that the Veteran's glucose was normal in 2002, which preponds against a finding of continuity of symptomatology since service. The Veteran has argued that he was diagnosed with diabetes in service, however, the contemporaneous evidence of record fails to show that diagnosis or that such a diagnosis was even suspected. In the Veteran's substantive appeal, the Veteran argued that he began to have symptoms consistent with diabetes prior to his discharge from service, however, there is no contemporneous evidence of such symptomatology. In that substantive appeal, the Veteran noted that he was instructed to lose weight in service, and he apparently relates his excessive weight in service to his eventual diagnosis of diabetes. A November 1991 service examination noted that the Veteran was overweight by 5 pounds, and a January 1995 service nutrition consult attempted to instruct the Veteran in a diet for weight reduction. The Board is aware that prevailing medical opinion indicates that increased weight can be a risk factor in the development of diabetes. However, in the Veteran's case, the evidence clearly shows that the Veteran had a normal glucose reading in 2002, six years after his separation from service. Given these objective findings, the Board finds that there is no credible evidence of continuity of diabetes symptomatology from the Veteran's period of service until his diagnosis 11 years after his separation from service. The Board further finds that, in light of the normal glucose readings in 2002, any suggestion that the Veteran's weight in service is related to the diagnosis of diabetes years later is so speculative as to not constitute credible lay evidence or competent medical evidence of an association to service. With no credible evidence of a diagnosis of diabetes in service or for many years after service, and with no medical evidence of record having linked this disability to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for diabetes. As to the Veteran's claim of entitlement to service connection for hypertension, the Board notes that the Veteran's main contention is that he was diagnosed with hypertension after his diagnosis of diabetes, therefore, he believes that his hypertension is secondary to his diabetes. As noted above, service connection is not warranted for diabetes, and as such, service connection cannot be granted for hypertension as secondary to diabetes. However, the Board must also consider whether service connection is warranted for hypertension on a direct basis. The claim fails on this basis as well. The Veteran's service treatment records show no evidence of hypertension. The evidence of record does not show a diagnosis of hypertension until approximately 2008, 12 years after the Veteran's separation from service. With no evidence of a diagnosis of hypertension in service or for many years after service, and with no medical evidence of record having linked this disability to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for hypertension. The Veteran is certainly competent to testify as to the nature of his symptoms and their approximate date of onset. However, the Board finds that the question of diagnoses of hypertension and diabetes, as they rely heavily for their diagnoses on clinical testing such as blood work and blood pressure readings, and not primarily symptomatology reports, are issues that require medical expertise outside the scope of the Veteran's medical knowledge. Therefore, the Board finds that the most probative evidence of record is the medical evidence discussed above. As such, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a diabetes and hypertension. In summary, considering the medical evidence of record, the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for diabetes or hypertension. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for diabetes is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs