Citation Nr: 1335851 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-31 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active duty service from December 1979 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in January 2012. FINDING OF FACT Diabetes mellitus pre-existed the Veteran's period of active service and did not undergo an increase in severity during her period of active service. CONCLUSION OF LAW The criteria for the establishment of service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in August 2007. As such, the duty to notify has been fulfilled. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and all available and adequately identified private treatment records. An attempt was made to obtain records associated with a claim for Social Security Administration (SSA) benefits. However, a response was received from SSA indicating that the records could not be located. The Veteran was informed of the lack of SSA records in October 2008. The Veteran has submitted a statement from Dr. P.G. and treatment records from Heart of Florida Regional Medical Center, Winter Haven Hospital, and Gessler Clinic have been associated with the claims file. An attempt was made to obtain and associate treatment records from the Bond Clinic; however, a response was received that the chart had been destroyed. The appellant was afforded VA medical examinations in August 2008 and March 2012. Significantly, neither the appellant nor her representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, a showing of continuous symptoms should still be a factor for consideration of whether a causal relationship exists between a Veteran's current disability and any in-service incident. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests diabetes mellitus 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates both that the disease or injury existed before acceptance and enrollment, and that it was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002); see also, Wagner v. Principi, 370 F.3d 1089 (Fed. Cir., 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013); Green v. Derwinski, 1 Vet. App. 320 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Importantly, the clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for diabetes mellitus. The Veteran contends that she was initially diagnosed with diabetes mellitus during basic training. Service personnel records reveal that the Veteran served for two months and nine days. Service treatment records reveal that the Veteran was not diagnosed with diabetes mellitus upon examination at entrance into service in September 1979. Upon a Report of Medical History, dated in September 1979, the Veteran reported that she was in good health and only reported the use of oral contraceptive. A diagnosis of diabetes mellitus was noted in January 1980. The Veteran was noted to report in a January 1980 Entrance Physical Standards Board Proceeding that she had a history of hyperglycemia noted at age ten with abnormal glucose tolerance test. She denied a history of insulin therapy or oral hypoglycemic therapy. Pre-service treatment records reveal blood sugar tests and a glucose tolerance test, dated from February 1971 to April 1974. In a statement received in May 1990 Dr. P.G. reported: [The Veteran] was "my patient" [around] 1980 before she entered the military - she had insulin dependent diabetes but took very poor care of herself in the sense that she rarely came in for follow-up visits [and] I never knew where her sugars were at. She could get insulin refills [without] my prescription [and therefore] I virtually had no follow-up. I am quite surprised she was accepted into the military! (Emphasis in the original.) In a statement dated in August 2007 the Veteran reported that when she entered service she was given a battery of tests and that she was not told that she had diabetes. She stated that she became ill in basic training and that after tests she was told that she was diabetic. The Veteran indicated that she responded that she did not know that she was diabetic when she was asked. She reported that she was told that she would probably be started on insulin when she returned home from service. The Veteran stated that her private physician started her on insulin upon her return home from service. She stated that her private physician stated that the stress of leaving home and being in a stressful and difficult environment could have caused trauma enough to bring on diabetes. In a statement dated in August 2007 the Veteran's brother indicated that the Veteran was in excellent health the day she was sworn into the Army. She was not diabetic nor had she been declared by her physician as a diabetic before. She was not taking any prescribed medication. When she returned home she was put on insulin in March 1980 by the family doctor. The doctor was noted to have told her that the shock of the Army was too much and probably brought on her diabetes. The Veteran's father, in a statement dated in August 2007, indicated that the Veteran was not ill in any way, nor taking any medications for any reason whatsoever, previous to her acceptance into the military. He stated that she was in good health as her physical showed. After return home from the military for what was termed medical reasons, the diagnosis of diabetes arose. In August 2008, the Veteran had a VA examination. The VA examiner opined that diabetes mellitus pre-existed service and was not aggravated by service. The August 2008 VA examiner opined there was evidence of pre-existing diabetes based upon tests from 1971 to 1974, and specifically a glucose tolerance test dated in March 1971. The examiner further opined that the Veteran's diabetes was not aggravated by service because she was in service too short a time to have any effect on the natural progression of diabetes. In October 2008 the Veteran reported that although she had a higher glucose level as a child, she was an overweight child and was never diagnosed with diabetes. She was not diagnosed with diabetes upon examination at entrance to service. She reported that she was recently diagnosed with diabetes by a VA endocrinologist. The Veteran noted that this could have easily come about by the stress and new lifestyle of the Army, as suggested by her private physician in 1980. The Veteran reported that she was never diagnosed with diabetes prior to service and that she could produce more statements from friends that knew her prior to service. Pursuant to the Board remand, the Veteran was afforded a VA medical examination in March 2012. The Veteran was noted to be diagnosed with diabetes mellitus, type I, and that the date of diagnosis was 1980 per the Veteran. The Veteran was also noted to be diagnosed with diabetic peripheral neuropathy. After examination the examiner the examiner rendered the opinion that the Veteran's diabetes pre-existed her active service. The examiner indicated that the Veteran met the criteria for diabetes mellitus in March 1971, with an abnormal glucose tolerance report with two hour post prandial blood sugar of 230. This was noted to be more than eight years prior to the Veteran's active military service. The claims file was reported to contain additional lab reports with blood sugars subsequent to March 1971. The final one was noted to be in April 1974. The examiner reported that the private sector physician ordered the labs on each occasion and that they strongly suggest ongoing care for diabetes. It was reported that a treatment note from a provider in 1980 that indicated that the Veteran had insulin dependent diabetes prior to military service. The examiner rendered the opinion that the Veteran's diabetes did not just become manifest during her brief period of active military service and that it was manifest prior to her military service. The examiner reported that the Veteran's active service was very brief not to aggravate the pre-existing diabetes mellitus. The examiner stated that the Veteran's private provider indicated that the Veteran was taking insulin during the time he cared for her, though he had little follow-up care to assess the result of his treatment plan. Therefore, the use of insulin to control blood sugars could not be used as support for aggravation of her diabetes as the recommendation to use insulin pre-existed her military service. The examiner therefore opined that the Veteran's pre-existing diabetes was not aggravated during her brief active service. Service connection for diabetes mellitus is not warranted. Initially, the Board notes that as there is no notation of any diabetes mellitus on the Veteran's Report of Medical Examination at entrance to active service, the presumption of soundness attaches. However, after examination in August 2008 and March 2012, based upon a review of the Veteran's pre-service treatment notes, the examiner rendered the opinion that the Veteran's diabetes pre-existed her military service and was not aggravated by her active service. The Board acknowledges that the questions asked of the examiner in March 2012 indicated that a response was needed regarding whether it was at least as likely as not that the Veteran's diabetes mellitus pre-existed service, was first manifested in service, and was aggravated by service. Although the examiner repeated these questions at the beginning of each response, the examiner provided opinions in language that is clear, obvious, and undebatable. As such, the opinion is adequate. The examiner in March 2012 reported on the Veteran's abnormal glucose tolerance report in March 1971 and indicated that this was more than eight years prior to the Veteran's active military service. The examiner stated that there were additional lab reports with blood sugars and that these strongly suggested that the Veteran received ongoing care for diabetes. In addition, the examiner continued to report that a note from a provider indicated that the Veteran had insulin dependent diabetes prior to military service. The Board acknowledges that the Veteran has provided lay statements that indicate that the Veteran was in good health prior to active service. However, the medical evidence of record reveals that prior to service the Veteran's blood sugar was tested multiple times and the Veteran underwent a glucose tolerance test. In addition, the Veteran at the time of the Entrance Physical Standards Board Proceeding that she had a history of hyperglycemia noted at age ten with abnormal glucose tolerance test. As such, the Board finds that the Veteran's statements that she was in good health prior to service to lack credibility. The lay statements of the Veteran's brother and father lack probative weight as diabetes is not a disability that can be observed. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, as the examiner provided an opinion based upon obvious and manifest evidence of the Veteran's disability, the Board finds that that there is clear and unmistakable evidence that the Veteran's diabetes mellitus pre-existed the Veteran's active service. The examiner rendered the opinion that the Veteran's pre-existing diabetes was not aggravated during her brief active service. In rendering the opinion the examiner noted that the Veteran served a very short period of time and that it was too brief to aggravate the diabetes mellitus. In addition, the examiner noted that a private physician had reported that the Veteran was taking insulin prior to service and, therefore, the Veteran's diabetes was not aggravated by her active service. The Board acknowledges lay statements, from the Veteran and others, that she was not taking insulin prior to her active service. The Board finds the Veteran's statements to lack credibility based upon the report of the Veteran's physician that the Veteran had insulin dependent diabetes prior to service. The Board notes that although the Veteran's father and brother have reported that the Veteran was not taking insulin prior to service, these statements lack probative weight as they are only competent to report what they observed and not what the Veteran was prescribed. Therefore, as the examiner provided an opinion based upon obvious and manifest evidence of the Veteran's disability, including the statement of the Veteran's private physician, the Board finds that there is clear and unmistakable evidence that the Veteran's diabetes mellitus was not aggravated by the Veteran's active service. As such, the presumption of soundness has been rebutted. The Veteran has contended that her diabetes mellitus began in service. However, as discussed above, the Veteran's diabetes mellitus pre-existed service and was not aggravated by service. In addition, the examiner in March 2012 rendered the opinion that the Veteran's diabetes mellitus did not manifest in service. Therefore the preponderance of the evidence is against a finding that the Veteran's diabetes mellitus is due to or aggravated by her active service. Lastly, although diabetes mellitus is a disability for which presumptive service connection may be warranted pursuant to 38 C.F.R. §§ 3.307, 3.309, the Veteran has less than 90 days of active service and, therefore the presumption is not for consideration. 38 C.F.R. § 3.307(a)(1) (2013). As such, service connection for diabetes mellitus is denied. ORDER Service connection for diabetes mellitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs