Citation Nr: 1336609 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-17 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for diabetes mellitus as secondary to hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1968 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2011, the Board denied service connection for diabetes mellitus and neuropathy of the hands on the bases of direct service incurrence, legal presumptions, and as due to herbicide exposure. The Board also remanded the issues of service connection for diabetes mellitus as secondary to service-connected hypertension and for neuropathy of the hands as secondary to service-connected arthritis of both shoulders. These issues were again remanded in June 2013. An August 2013 rating decision granted entitlement to service connection for neurogenic thoracic outlet syndrome of the right and left upper extremity secondary to service-connected degenerative arthritis of the right shoulder. Therefore, the appeal as to this matter was fully resolved. The issue as listed on the title page of this decision is the only matter remaining for appellate review. This appeal was processed using the Virtual VA and VBMS (efolder) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Diabetes mellitus is not shown to have been caused or aggravated as a result of a service-connected disability. CONCLUSION OF LAW Diabetes mellitus is not proximately due to or the result of a service-connected disease. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in February 2011. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private medical reports, and the Veteran's statements in support of his claim. The development requested on remand in February 2011 and June 2013 has been substantially completed. There is no evidence of any additional existing pertinent records. In August 2013, the Veteran reported that he had no additional evidence to submit in support of his appeal. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Secondary Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Secondary service connection may be established for a nonservice-connected disorder which is aggravated by a service-connected disability (i.e., there is an additional increment of disability of the nonservice-connected condition which is proximately due to or the result of a service-connected disorder). See Allen v. Brown, 8 Vet. App. 374 (1995). During the pendency of this appeal, VA amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, in permitting secondary service connection on the basis of aggravation, but limiting the circumstances under which it will grant secondary service connection on the basis of aggravation. 71 Fed. Reg. 52,744 -52,747 (Sep. 7, 2006). Although the secondary theories of entitlement were not raised until after the effective date of the revisions, multiple theories of entitlement pertaining to the same benefit for the same disability constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008) (if a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that 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), (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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). In this case, the issue of secondary service connection for the Veteran's diabetes mellitus as a result of his service-connected hypertension was raised by the Veteran's service representative in a January 2010 informal hearing presentation. VA and non-VA medical reports noted the Veteran had a history of hypertension since approximately 1986 and diabetes mellitus since 1995. VA examination in July 2013 found it was less likely than not that the Veteran's diabetes mellitus was proximately due to or the result of his service-connected condition. It was noted that the Veteran's diagnosis of hypertension was first provided in 1988 and that he was provided a diagnosis of diabetes mellitus in 1990. The examiner stated that hypertension did not cause diabetes, but that uncontrolled diabetes often can cause hypertension and that often they evolved simultaneously secondary to metabolic syndrome. It was the examiner's opinion that the Veteran's diabetes was not caused by or a result of his service-connected hypertension and was not aggravated by his hypertension which was controlled. Based upon the evidence of record, the Board finds that the Veteran's diabetes mellitus was not caused or aggravated as a result of a service-connected disability. The opinion of the July 2013 VA examiner is found to be persuasive and based upon adequate rationale, i.e., these conditions evolve simultaneously and his hypertension was not uncontrolled. The opinion is shown to have been based upon a thorough examination, a review of the evidence of record, and an adequate consideration of the Veteran's statements. The Board acknowledges that, generally, claimants are competent to give evidence about what they experience; for example, to discuss the extent of their current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Laypersons are not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). As opinions as to comorbidity between hypertension and diabetes mellitus involve complex medical issues, the statement provided on behalf of the Veteran's claim in this case is not competent evidence. Therefore, the Board finds entitlement to secondary service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for diabetes mellitus as secondary to hypertension is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs