Citation Nr: 1336929	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  11-24 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for diabetes mellitus, to include as secondary to gastrointestinal disability of residuals of gastric resection for peptic ulcer and cholecystectomy with bile reflux and heartburn.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

C. Eckart, Counsel
INTRODUCTION

The Veteran served on active duty from April 1951 to April 1953. 

This matter comes before the Board from a February 2011 rating decision by the RO in St. Paul Minnesota, which in part denied service connection for diabetes mellitus.  In June 2013 the Board remanded this matter for additional development.  

This appeal was processed using the VA paperless claims processing system.   Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).)


FINDINGS OF FACT

1.  The Veteran's diabetes was formally diagnosed in February 2007, with elevated glucose readings shown no earlier than November 2000, and is not shown to have been traceable to his period of active military service. 

2.  The diabetes was not caused by or made worse by the Veteran's gastrointestinal disability of residuals of gastric resection for peptic ulcer and cholecystectomy with bile reflux and heartburn, including any surgical adhesions therefrom.


CONCLUSION OF LAW

The Veteran does not have diabetes mellitus that is the result of disease or injury incurred in or aggravated by active military service or is proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

In this case, VA satisfied its duty to notify by means of letter dated in November 2010 from the RO to the Veteran, which was issued prior to the RO decision in February 2011.  This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Additionally, this letter described how the rating criteria and effective dates are assigned as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board finds that the content of the above-noted letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a)  and 38 C.F.R. § 3.159(b)  regarding VA's duty to notify. 

Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence.  It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal.  The Veteran's service treatment records and relevant VA and private medical records are in the claims file.  The Board notes that the Veteran was granted a 30-day continuance at the April 2013 hearing to allow him opportunity to provide a private medical opinion regarding the onset of the diabetes, but no additional evidence has been received.  It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. 

The Board is unaware of any outstanding evidence or information that has not already been requested.  A VA examination was obtained in December 2010 with claims file review and addendum opinion obtained in January 2011.  After this matter was remanded for further development, an additional VA medical opinion was obtained in August 2013 with claims file review, with addendum obtained to clarify whether surgical adhesions from the service-connected disability caused or aggravated his diabetes.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The opinion obtained is adequate.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  It was conducted by a medical professional who reviewed the medical records and provides the information necessary to decide the claim. 

Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed and in obtaining evidence pertinent to his claim under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


II. Background

The Veteran maintains that service connection is warranted for his diabetes mellitus.  He and his representative have argued that scar tissue resulting from surgical treatment of his service-connected gastrointestinal disability has caused damage to his pancreas, thus resulting in the pancreas not functioning normally and leading to onset of diabetes mellitus. 

The evidence neither shows and the Veteran does not contend that diabetes began in service, nor was incurred as a result of any event coincident with service.  The service treatment records show no findings or complaints suggestive of diabetes either on the November 1950 entry examination or the April 1953 separation examination, which both revealed normal endocrine findings.  The service treatment records did show hospitalization in March 1953 for duodenal ulcer, for which he was treated with diet and medication.  Additionally the evidence neither shows and the Veteran does not contend that diabetes became manifest within the first year after his discharge from service in January 1953.

Historically, surgical treatment is shown in April 1955 (perforated ulcer diagnosed and surgically repaired), January 1958 (gastric resection) and March 1995 (gallbladder).  The records pertaining to these surgeries do not reflect any findings suggestive of diabetes; nor do they suggest any damage to the pancreas.  The evidence does indicate that for about 2 weeks after the January 1958 surgery, he experienced "dumping syndrome" as reported in an August 1958 report that appears to pertain to a VA examination.  The August 1958 VA examination itself indicated that the Veteran had no serious illness following the gastric surgery and the one month post-surgical recovery.  Of significance, the March 1995 cholecystectomy surgery revealed adhesions which were lysed.  These lesions were described as being lysed after the peritoneum was opened.  During the surgery, 2 additional ports in the epigastrium and in the right mesogastrium were inserted in the peritoneal cavity, with multiple adhesions, which were lysed.  The surgical report however did not specify whether any of the adhesions affected the pancreas.  

The Veteran has alleged, both in written statements and at his April 2013 hearing, that scar tissue and adhesions were caused by the gastric resection and cholecystectomy, and involved the pancreas, causing damage to it.  As early as written statements in April 2003 and January 2005 (addressing another issue not presently on appeal) the Veteran contended that his physician, Dr. Rudy, who performed his gastric surgery in January 1958, had told him he had damage to his pancreas due to inflammation and scarring from his ulcer condition and had a "crater" in his pancreas.  At the hearing, the Veteran continued to relate this medical history of issues with the pancreas as diagnosed by Dr. Rudy.  

The Veteran has also contended that he had episodes of hypoglycemia after his January 1958 gastrectomy surgery that point to damage to the pancreas, suggesting that such damage resulted in his current diabetes.  A May 2011written lay statement and April 2013 testimony from his wife described that after his 1958 surgery, the Veteran had episodes of sudden weakness and shakiness, that the doctor had indicated was a drop in blood sugar that he would have to eat something with sugar to remedy the condition.  It has been conceded by the representative that the doctor who had advised his blood sugar was dropping was deceased.  

A report of a January 2002 VA examination for GI disorders noted that the Veteran had been left with scarring from the initial surgery in 1955 for perforated ulcer, with the scarring having obstructed the stomach, requiring the gastrojunostomy surgery in January 1958.  Following this surgery he developed a dumping syndrome that resulted in weight loss and early satiety, with this syndrome lasting a few weeks.  He then ate frequent light meals and did fairly well.  The examination addressed then-current gastrointestinal symptoms such as reflux and the subsequent gallbladder surgery in 1995.  No findings or complaints suggestive of diabetes were identified at this examination.  

VA treatment records from 2002 to 2003 do not reveal any diagnosis of diabetes.  However, records from November 2001 and February 2002 documented problems with increased tingling in his feet, with a history of such symptoms for 2-3 years in November 2001.   A diagnosis of peripheral neuropathy was made in February 2002.  No other possible findings of diabetes were noted.  In April 2004 he was seen on a follow-up, still with numbness in his feet, with swelling in a leg present for 4 years since he broke the leg.  He was assessed with peripheral neuropathy, etiology undetermined but possibly related to having frozen feet as a child.  

Private laboratory reports reveal that as early as November 2000, elevated glucose readings were shown.  Repeatedly elevated glucose readings were shown in records from November 2001, February 2002, March 2003, April 2003, November 2005, March 2005, November 2005, January 2007 and November 2007.  However a formal diagnosis is not shown in the treatment records until February 12, 2007, when he was seen for follow-up after 14 month labs in January 2007, which showed a glucose reading of 135 and a A1C reading of 6.9.  A diagnosis of diabetes was made at that time.  

The Veteran underwent a VA examination in December 2010, with review of the claims file made.  The examiner noted that diabetes was diagnosed from rising glucose on laboratory results.  The treatment included a special diet and Metformin taken orally.  He had no episodes of ketoacidosis or hypoglycemia.  Examination revealed unremarkable findings except for the lower extremities with the right lower extremity having absent vibration sensation of all toes and the left lower extremity having decreased vibration of all toes and absent pain and pinprick on the left great and second toe.  He had a normal detailed motor examination without atrophy.  A history of multiple exposures to cold and frostbite as possibly related to these findings.   Testing of A1C was high at 6.9.  The diagnosis was diabetes mellitus, Type II.  

The examiner, a nurse practicioner, opined that the diabetes was not caused by, nor the result of GI surgical intervention for peptic ulcer.  The explanation was that the Veteran had developed diabetes mellitus significantly later than his first surgery of gastric resection for peptic ulcer in 1958 as well as his second surgery for cholecystitis and adhesions in 1995.  The examiner concluded that, if his diabetes were Type I or a Type II diagnosed immediately after either surgery, it could be opined that the pancreas was damaged from inflammatory process during any of his surgeries.  A review of the literature and consultation with the gastroenterologist on call confirmed this conclusion.  It was noted that the most likely etiology of his type II diabetes was age and vascular disease.  

An addendum report was prepared in June 2011 to further address the etiology of his diabetes.  The examiner, a physician, reviewed the findings from the records and laboratory reports between January 2000 and the December 2010 VA examination and recited the findings.  It was noted that no diagnosis of diabetes was made in January 2000 and November 2001, although in November 2001 he was noted to have increasing numbness of both feet over the last 2-3 years.  It was also noted that there was no diagnosis of diabetes made in a treatment record from November 2004, despite glucose being elevated.  The report pointed out that the first diagnosis of diabetes was made in February 2007, when the Veteran had a blood glucose of 135 and A1C reading of 6.9, with plans made to see a nutritionist for a diabetic diet.  

The addendum opinion was obtained from a VA physician in June 2011 who determined that the Veteran did not meet the criteria for type 2 diabetes mellitus until February 2007 when his A1C hemoglobin readings were above 6.5.  The examiner also stated that his gastrectomy was done in 1958 and that medical evidence shows that a gastrectomy can actually help control or cure diabetes, with no medical evidence showing that it exacerbates or causes type 2 diabetes.  The examiner also provided an opinion that cholecystectomy and heartburn do not cause or contribute to, or enhance the development of diabetes.  However, the examiner did not address the question as to whether adhesions from his prior surgeries could have caused or aggravated the diabetes.  The Board notes that the examiner described having reviewed the claims file in its entirety, but focused on review of CPRS medical records from 2001 to 2010, with no discussion about the actual surgeries done in 1955, 1958 and in 1995.  

As the opinions from the prior VA examinations and addendums were deem to be inadequate for adjudication purposes, an addendum opinion was obtained in August 2013 to address this matter.  The examiner noted that the paper file was no longer in existence, and reviewed the electronic record that replaced it.  The examination was to address whether the adhesions from the Veteran's GI surgery either caused or worsened his diabetes.  The Veteran was noted to have served between 1951 and 1953.  He alleged his diabetes was caused by or the result of his gastrointestinal disorder classified as status post resection for peptic ulcer and cholecystectomy with bile reflux and severe heartburn.  Specifically, it was noted that the Veteran alleged that adhesions from these surgeries affected his pancreas and either caused or worsened his diabetes.  The examiner noted that the surgery for peptic ulcer disease was in 1958 and the cholecystectomy was in 1995. The examiner remarked that it appeared that the Veteran was speculating that surgical adhesions caused him to develop diabetes more than 40 years after the partial gastrectomy and more than 5 years after the cholecystectomy.  The examiner opined that this was very unlikely to have occurred.  

The examiner explained that the beta cells that produce insulin are scattered throughout the pancreas.  Type I diabetes was caused by destruction of the beta cells.  However Type II, which the Veteran had, is caused by insulin resistance in muscle and fat cells in the setting of gradually decreasing  insulin production.  This was a complex metabolic process of long onset.  It was also noted that adhesions are a common sequelae of surgery, but it was not likely that they would have encased and effectively strangled the pancreas and had done so without at the same time producing damage to the pancreas and/or other abdominal organs, such as pancreatic insufficiency, pancreatitis and obstruction of small bowel or other structures.  It was noted that such damage would have been clinically apparent.  In summary, the reviewer concluded that the Veteran's claim that adhesions caused or worsened his diabetes was not anatomically or physiologically plausible and was not likely to have occurred.  

III. Analysis

Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110.  To establish a right to compensation for a present disability, a claimant must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009).  Service connection for a "chronic disease," such as diabetes mellitus, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). 

The law also provides that service connection may be granted for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013).  Also, when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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 lay person 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).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007). 

In view of the evidence of record, the Board finds that the preponderance of the evidence is against granting service connection for diabetes mellitus.  Again as previously pointed out, there is no evidence of diabetes shown in service, or within the post-service presumptive year, and the Veteran has not argued entitlement to service connection on a direct or presumptive basis. 

Thus, the matter turns on whether the Veteran's service-connected gastrointestinal disability--residuals of gastric resection for peptic ulcer and cholecystectomy with bile reflux and heartburn--either caused or aggravated his diabetes.  The premise upon which this causation or aggravation is based is the argument that the service-connected gastrointestinal disability, which required surgeries as described above, resulted in surgical adhesions that affected the pancreas and resulted in his diabetes.  

Here the more persuasive medical evidence reflects that the Veteran's diabetes was neither caused nor aggravated by his service-connected gastrointestinal disability, including any residuals from surgeries performed in 1955, 1958 or 1995, to include from any surgical adhesions.  While the possibility of adhesions resulting in damage to the pancreas was raised by the examiner in the December 2010 VA examination, this examiner also indicated that such a conclusion could be made if the diabetes (either Type I or II) had been diagnosed immediately after surgery.  Such is not the case in this matter, as the diabetes was diagnosed years after all surgeries including the most recent one done in 1995.  

The addendum obtained in June 2011 clarified that the first diagnosis of diabetes was in February 2007, and provided a rationale discussing the significant laboratory findings prior to and as of that date, in explaining why the criteria for diabetes was not met prior to that date in spite of some earlier findings of elevated blood glucose.  The June 2011 addendum also noted that the surgeries themselves were not likely to cause or exacerbate diabetes and provided explanation, describing that there was no medical evidence to suggest such surgeries caused or worsened diabetes, and in fact could help control diabetes.  

Finally the August 2013 addendum further clarified that the surgical adhesions themselves neither caused nor worsened the Veteran's diabetes.  In providing the rationale the examiner provided a detailed description of the causation and progression of both Type I and Type II diabetes and described how it would be unlikely that damage to the pancreas would have resulted in diabetes years later without some clear earlier manifestations of the damage that would have been clinically apparent.  No medical evidence has been presented to contradict such findings, other than the contentions from the Veteran and other lay witnesses who are not shown to have the medical expertise to provide a competent opinion about the cause of his diabetes.   

In sum, the preponderance of the evidence is against the claim of secondary service connection.  The evidence does not show that the Veteran's gastrointestinal disorder resulting in surgeries and adhesions, is either the direct cause or aggravation of the diabetes.  There is no other basis, either shown by the evidence or otherwise alleged, upon which to warrant a grant for this service connection claim. 


ORDER

Service connection for diabetes mellitus is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs