Citation Nr: 1335682 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-38 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a vision disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to April 1982 and from September 2002 to February 2003, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the claims on appeal. In July 2013, the Board remanded the claims for additional development. FINDINGS OF FACT 1. Diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident during active service or active duty for training, nor did it manifest within one year of the Veteran's discharge from active service. 2. A vision disability is not shown to be causally or etiologically related to any disease, injury, or incident during active service or active duty for training. 3. A back disability is not shown to be causally or etiologically related to any disease, injury, or incident during active service or active duty for training, nor did arthritis manifest within one year of the Veteran's discharge from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a vision disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in a July 2006 letter, prior to the initial rating action on appeal. Relevant to the duty to assist, the VA has obtained the Veteran's complete service treatment records, as confirmed by the National Personnel Records Center in April 2009. Pertaining to post-service treatment records, the Veteran has not identified any additional outstanding treatment records to obtain. His VA treatment records have been obtained. The Board has also reviewed his Virtual VA records and his VBMS records. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available and relevant records. Additionally, the Veteran was afforded VA examinations in December 2006, January 2007, and in August 2013 in order to adjudicate his service connection claims. The Board finds that the VA examinations are adequate to decide the Veteran's claims. VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) 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 his 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, 1131; 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 be granted with 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)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307 and 3.309(a), credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include diabetes mellitus and arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d) (2013). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Diabetes Mellitus Service treatment records reflect that while the Veteran was on active duty in December 2002, a urinalysis was negative for glucose. Then, when the Veteran was on active duty for training in January 2005, a glucose screen was 106. In September 2005, his fasting blood sugar was 106. Post-service treatment records reflect that in June 2005, he had an abnormal glucose test, however, he stated that he was eating candy at the time of the test. In November 2005, a two hour postprandial blood draw was 239 and his fasting blood sugar was 143, stated to be consistent with diabetes mellitus. He was counseled to begin a diabetic diet. On December 2006 VA examination, the Veteran's diabetes was noted to have had its onset in 2004, apparently at reported by the Veteran. He was diagnosed at the VA. He was taking medications and followed a low sugar diet. Laboratory testing resulted in a diagnosis of uncontrolled diabetes mellitus. On August 2013 VA examination, the examiner reviewed the record and noted that in March 2004, diabetic laboratory testing was within normal range. In March 2005, a glucose test was high. In November 2005, a two hour post-prandial glucose test was high. After physically examining the Veteran and reviewing the claims file, the examiner concluded that it was less likely than not that the Veteran's diabetes had its onset during active service or while on active duty for training. The examiner explained that diabetes was diagnosed in 2005, following the Veteran's active service. In this case, the Board finds that the first indication of a formal diagnosis of diabetes mellitus was November 2005, following his active service and active duty for training. Although the Veteran had an elevated glucose screening in March 2005, prior to his July 2005 release from active duty for training, there is no indication of a diagnosis of diabetes at that time. Rather, the Veteran stated that he had eaten candy at the time of the test and a later, post-service test was performed and at that time, a diagnosis of diabetes mellitus was given. Moreover, the March 2005 glucose reading was not obtained while in the "line of duty." It is not documented in the service treatment records and was taken at the VA. There is no indication that the Veteran was on duty at the time of that diagnostic result. Therefore it cannot be concluded that the Veteran's diabetes was caused or aggravated while in the line of duty. The August 2013 VA examiner did not find an indication of diabetes mellitus prior to that 2005 diagnosis in the service records, even after reviewing the record. The Board notes that the one year presumptive period for service connection for diabetes mellitus does not apply with regard to active duty for training, as stated above. Furthermore, although the Veteran reported on December 2006 VA examination that his diabetes had its onset in 2004, the VA treatment records and 2013 VA examination do not support that date of diagnosis. Accordingly, the Board finds that the Veteran's diabetes mellitus was not caused or aggravated by his active service or active duty for training, and service connection must be denied. Vision Disability The Veteran contends that he suffers from a vision disability that was caused or aggravated by his service or his diabetes mellitus. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2013). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). However, because the Board is denying service connection for diabetes mellitus, secondary service connection for a vision disability is not warranted in this case. The Board also finds that direct service connection for a vision disability is not warranted. For one, the Veteran's post-service vision disability has been diagnosed only as a refractive error and senile cataracts. On 2007 and 2013 VA examinations, no other disability was diagnosed. The Board notes that refractive error of the eyes is not a disability for VA purposes. Accordingly, that disorder cannot be service-connected, absent evidence of aggravation by superimposed disease or injury, which is not shown in this case. 38 C.F.R. §§ 3.303(c), 4.9; Sabonis v. Brown, 6 Vet. App. 426 (1994); Monroe v. Brown, 4 Vet. App. 513 (1993); Carpenter v. Brown, 8 Vet. App. 240 (1995). Refractory errors of the eye include such eye disorders as myopia, presbyopia, and astigmatism. The Veteran's refractive error cannot be service-connected absent evidence of aggravation. The record, however, is negative for evidence of a superimposed disease or injury in service. There is similarly no post-service evidence that the Veteran's refractive error was aggravated by disease or injury related to service. There is additionally no evidence that the Veteran developed senile cataracts in service, as none were noted in the records. The Veteran also does not claim that his senile cataracts had their onset in service, nor does the medical evidence support that contention. Accordingly, the Board finds that service connection for a vision disability is not warranted. Back Disability The Veteran contends that he injured his back while stationed in Saudi Arabia when he fell from a tower 15 feet to the ground. He stated that he did not report the incident at the time, but that he now has residual back pain. Service treatment records do not reflect any complaints or treatment of a back disability. On December 2006 VA examination, the Veteran's back pain and back spasm were suggestive of intervertebral disc disease. No etiological opinion was provided. VA treatment records reflect that in April 2007, the Veteran's diagnosis list did not include a back disability. On August 2013 VA examination, the Veteran reported having constant low back pain that interfered with bending over. The pain was severe. After physically examining the Veteran and reviewing the claims file, the examiner determined that it was less likely than not that the Veteran's back disability was caused or aggravated by his service. The examiner explained that the claims file was negative for any low back complaint, imaging or evaluation until 2006, which was three years following active service. That is the first indication from the Veteran that he suffered from low back pain. His current disability, degenerative disc disease of the lumbar spine, was not diagnosed until 2013. That disability was due to the normal progression of aging. In this case, the Board places greater probative weight on the 2013 VA examiner's opinion, rather than on the Veteran's lay statements, because the VA examiner provided a clear medical rationale for the opinion reached. Significantly, the opinion also comports with the record which is completely negative for indication of a back injury in service or within one year following service. The examiner took into account the Veteran's lay statements as to the onset and severity of his back injury and current symptoms, but found no indication that the current disability, degenerative disc disease, was caused by an injury in service. Therefore, the 2013 VA opinion is competent and credible evidence against the claim. When weighing that opinion with the Veteran's statements, the Board finds that his statements are outweighed. In fact, the statements regarding the in-service injury and continuous symptoms since service are not credible as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest. See Caluza v. Brown, 7 Vet. App. 498 (1995). While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board has made such a determination because there is no indication of a low back disability in service or on separation from service, and, importantly, there is no indication in the medical evidence that the Veteran in fact sought care for any symptoms of pain or problems related to his back until 2006. Despite the Veteran's statements, the available medical evidence does not reference any prior treatment or diagnosis related to the back. They are completely silent for a serious fall, as described by the Veteran. Thus, the Board finds that the lay statements in this case are less probative than the 2013 medical opinion, which found no evidence that the current disability as caused by a service injury. Rather, the current disability was due to the aging process. There is no competent medical evidence to the contrary. Conclusion While the Veteran contends that his current diabetes mellitus, vision disability, and back disability are related to military service, the Board accords his statements regarding the etiology of these disabilities less probative value as he is not competent to opine on such a complex medical question. It is true that lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). While the Veteran is competent to state that he hurt his back in service, he is not competent to state that his currently diagnosed back disability was caused or aggravated by that event because he does not have the requisite knowledge and skills to determine such etiology. Such a conclusion requires medical skill and review of the physical findings in service and since service. The same is true with regard to a diagnosis of diabetes mellitus, which required review of medical findings. In this case, a preponderance of the competent medical evidence of record is against a finding that the Veteran suffers from a diabetes mellitus, vision disability, or a back disability that is etiologically related to an injury during his active service. As the Board finds that the preponderance of the evidence is against this claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107. ORDER Service connection for diabetes mellitus is denied. Service connection for a vision disability is denied. Service connection for a back disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs