Citation Nr: 1334707 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-35 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as secondary to a service-connected stroke. 2. Entitlement to service connection for a skin-related disability of the feet, to include tinea pedis (athlete's foot) and onychomycosis. 3. Entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder, including as secondary to service-connected disorders. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1997. These matters initially came before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. This case was previously before the Board in May 2013 at which time it was remanded to the RO for additional development. The RO has complied with the remand directives. The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Diabetes mellitus did not manifest in service or within one year after service, and is unrelated to a service-connected disorder. 2. A skin-related disability of the feet, to include athlete's foot and onychomycosis, was not incurred in service. CONCLUSIONS OF LAW 1. Diabetes mellitus did not manifest in service or within one year thereafter and has not been shown to be causally or etiologically related to the Veteran's military service or to a service-connected disorder. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. A skin-related disability of the feet, to include athlete's foot and onychomycosis was not incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with notification letters in October 2004, April 2005, and September 2011. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the content of the letters satisfied the notice requirements. In this regard, the letter informed the Veteran of the information and evidence needed to substantiate his claim and notified him of the division of responsibilities in obtaining such evidence. The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess, 19 Vet. App. at 490-491. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. 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, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination in July 2013. There has been no allegation that the examination was inadequate. Moreover, the Board finds that the VA medical opinion obtained in this case is adequate, as it is predicated on a full reading of the available service treatment records as well as the post-service medical records contained in the Veteran's claims file. It considers all of the pertinent evidence of record and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and numerous Supplemental Statements of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Service connection claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, such as diabetes mellitus, when such disease is manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, 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 Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes mellitus, secondary to a stroke The Veteran contends that he has diabetes mellitus that is secondary to his service-connected stroke or to high cholesterol that he had during service. As the preponderance of the evidence is against finding that the Veteran's diabetes mellitus is related to service or to his service-connected residuals of a stroke, his claim is denied. The Veteran's service treatment records are negative for any complaint or treatment of diabetes mellitus. His service treatment records show multiple notations of elevated cholesterol levels. Post-service treatment records show that the Veteran suffered a stroke in 2004 and he was diagnosed with diabetes mellitus in 2005. In addition to the lack of evidence showing that diabetes manifested during active duty service or within close proximity thereto, the evidence of record does not link the current diagnosis to the Veteran's military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of the disorder in service, and the Veteran has not contended otherwise. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Further, as the Veteran's diabetes did not develop until 2005, there is no basis for finding that the claimed diabetes mellitus was manifested to 10 percent during the first year after service. Presumptive service connection in this regard is not warranted. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Additionally, the Board notes that the Veteran has not alleged, nor does the evidence show, continuity of symptomatology since service. The United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). (holding, "nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As diabetes is a chronic disease under § 3.309(a), the Veteran may attempt to establish continuity of symptomatology in lieu of a nexus. In this case, however, again, diabetes was not present in service, and the earliest post-service evidence of the disease is dated from 2005, which would have been a number of years after the Veteran's 1997 discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim.). Therefore, the Board finds that continuity of symptomatology regarding the Veteran's diabetes has not been established. In September 2011, the Board denied the Veteran's claim of service connection for high cholesterol, on the basis that it is a laboratory finding and not a disability for VA compensation purposes. In a May 2013 Board decision, the Board granted the Veteran's claim of service connection for residuals of a stroke and remanded his claim of service connection for diabetes mellitus for a VA opinion. The Veteran underwent a VA examination in July 2013. The examiner reviewed the Veteran's claims file and examined the Veteran. The examiner opined that "the Veteran's developing diabetes was a life event. There is not a causal relationship of a stroke causing diabetes despite the diagnosis of diabetes being related to the time period when the Veteran was having recurrent strokes and transient ischemic attacks." The examiner further opined that "there is no evidence that the Veteran's diabetes is not affected or worsened beyond its natural course due to his [history of] stroke." The Board finds that the preponderance of the more probative evidence is against finding that the Veteran's diabetes mellitus is due to service or his service-connected stroke residuals. The Board recognizes that the Veteran had elevated levels of cholesterol during service and that he is currently service-connected for residuals of a stroke; however, there is no medical evidence that either his in-service cholesterol levels or his stroke caused or aggravated his diabetes mellitus, which was diagnosed in 2005, eight years after his discharge from service. Rather, the only relevant medical evidence is that of the July 2013 examiner who found no causative relationship. In reaching these decision, the Board has considered the Veteran's lay statements regarding causation. Veterans are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson, supra; Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's lay evidence is that he had high cholesterol readings in service and suffered a stroke in the same time frame as his diabetes diagnosis. However, causation of diabetes is an internal medical process that took place over time and which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377 ("sometimes 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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). To the extent that the Veteran's testimony on this question is competent, the Board finds that the specific, reasoned opinion of the July 2013 VA examiner is of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Skin disorder of the feet The Veteran contends that service connection is warranted for a skin disorder of the feet, including tinea pedis and onychomycosis. As the preponderance of the probative medical evidence is against finding that these disorders are due to service, the Veteran's claim is denied. Service treatment records show no records of complaints or treatment for any skin disorders of the feet. The Veteran's July 1996 retirement examination report indicated that the feet and skin were normal, and the Veteran indicated on the contemporaneous report of medical history that he did not have and had never had foot trouble or skin trouble. In a 2004 statement, the Veteran claimed that he developed athlete's foot during service and his feet itch and burn constantly. He contends that this condition is due to wearing combat boots and black socks for 15 or more hours per day in service. The Veteran underwent a VA examination in July 2013. The examiner reviewed the claims file and performed an examination of the Veteran. He noted that the Veteran was diagnosed with tinea pedis and onychomycosis in 2004. The examiner's current findings included "mild erythema with slight scaling on distal plantar surface and between toes. Great toenails removed on both feet. Toenails 2-5 on both feet thickened and dystrophic." The examiner opined that these disorders are less likely than not related to military service. As a rationale, the examiner stated: On the Veteran's retirement physical in 1996, the Veteran marked no to "foot trouble" or "skin trouble." Even though the Veteran's statements relate his current skin conditions of the foot to his military service, his statements are done in retrospect with his claim of these conditions coming in 2004, 8 years after leaving service. the Veteran's recollections/statement are not supported by the objective evidence of the timely and thorough medical examination and documentation done at the time the Veteran left military service in 1996. In his statement in 2004, the Veteran relates these conditions to wearing military boots throughout his career; however, if the boots/military service were the cause of his condition, he would have had objective evidence of his conditions while he was in the military and specifically on the retirement physical. I therefore find that the Veteran's tinea pedis and onychomycosis are less likely than not related to military service." The Veteran is competent to testify as to observations, such as the wearing of boots and socks and a resulting skin disorder of the feet, but his testimony must be weighed against the other evidence of record. Jandreau, supra; Buchanan, supra. In this case, the Board finds that the weight of the evidence reflects the absence of skin or foot disorders in service or at separation. The Veteran's statement to a health care provider at the time of separation is of greater probative weight than his statements made many years later during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); see also Fed. R. Evid. 803 (4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). In addition, the normal examination of the feet and skin at separation weighs against a finding of a feet or skin disorder or symptoms in service. Finally, the absence of notation of foot symptoms also weighs against a finding of foot symptoms in service. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana, 24 Vet. App. at 440 (2011) (Lance, J., concurring) (clarifying that the absence of evidence is not negative evidence unless it is the type of information that would necessarily have been recorded). With regard to continuity of symptomatology, even if the Veteran's testimony were credible in this regard, tinea pedis and onychomycosis are not listed as chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). The chronicity and continuity provisions of 38 C.F.R. § 3.303(b) are therefore not for application. Walker, 708 F.3d at 1338. The remaining question is whether the diagnosed tinea pedis and onychomycosis after service are related to service. The only two opinions on this question are that of the July 2013 VA examiner and the Veteran. The examiner indicated that she reviewed the clinical files including updated C&P examinations, CAPRI, and medical records. She concluded that it was "less likely than not" that these disorders was incurred in or caused by the Veteran's service. As quoted above, a complete rationale was provided for her opinion. As the examiner explained the reasons for her conclusion based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. The only other opinion is that of the Veteran, who indicated that the extensive wearing of socks and boots caused the tinea pedis and onychomycosis from which he currently suffers. Veterans are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson, supra. In this case, the Veteran's testimony that the cause of his skin disorder of the feet was the extensive wearing of boots and socks in service appears to be testimony as to an internal medical process that took place over time and which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377 ("sometimes 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"). To the extent that the Veteran's testimony on this question is competent, the Board finds that the specific, reasoned opinion of the July 2013 VA examiner is of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a skin-related disability of the feet, to include tinea pedis and onychomycosis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus is denied. Service connection for a skin-related disability of the feet, to include tinea pedis (Athlete's foot) and onychomycosis is denied. REMAND The purpose of this remand is to afford the Veteran a VA psychiatric examination to obtain an opinion as to whether his depression is due to service or secondary to a service-connected disorder. This claim was previously remanded in May 2013 for a VA opinion. The following opinion was issued in July 2013: "A review of the patients medical records and reports indicates that it is not as least as likely as not that his depression is related to or caused by his service-connected back disability. Multiple inconsistencies and contradictions in pt. reporting of both symptoms and possible etiology result in not being able to medically relate his depression to his military experience and military etiology. It should be noted, and was noted, that the RO request included instructions that were literally conflicting as well as not in keeping with proper methods of making medical diagnosis and, as such, were ignored." The Veteran is service-connected for a stroke with memory loss, right upper extremity paralysis, right lower extremity paralysis, low back strain, tinnitus, bilateral hearing loss, headaches, and erectile dysfunction. The Board finds this opinion to be insufficient as it does not consider whether the Veteran's depression is directly related to service or to any of his service-connected disorders, other than his back disorder. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. 38 C.F.R. § 4.2. An opinion is necessary to consider whether the Veteran's depression is directly due to service or secondary to or aggravated by any of his service-connected disorders. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must obtain any outstanding VA treatment records. 2. The RO/AMC must afford the Veteran a VA psychiatric examination by a VA examiner, who has not previously examined the Veteran. The VA examiner is asked to determine: a. Whether the Veteran has major depressive disorder and, if so, whether that depression is related to or aggravated by the Veteran's period of military service, or to any of his service-connected disorders. b. The Veteran's file must be made available to the VA examiner for review. c. The VA examiner should provide a detailed rationale for the opinion provided. If an opinion cannot be provided without resort to speculation, the VA examiner should so state and explain why an opinion is not possible without resort to speculation. 3. After the requested development is completed, adjudicate the claim of service connection for an acquired psychiatric disorder on the merits. If any benefit sought is are denied, then provide the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs