Citation Nr: 1337606 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-23 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to the service-connected bilateral feet and ankle conditions. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to July 1991. The Veteran also had a period of Reserve service. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO, in pertinent part, denied the benefits sought on appeal. In January 2011, the Veteran presented testimony before a Veterans Law Judge. In September 2012, the Veteran was notified that the Veterans Law Judge was no longer employed by the Board and she was afforded the opportunity for a new hearing. She was further informed that she had 30 days to respond to the letter and if there was no response, it would be assumed that she did not want another hearing. The Veteran did not respond and thus, the Board shall proceed accordingly. The matter was previously before the Board in February 2013 and remanded for further development and adjudication. The claim has been returned to the Board and is ready for appellate disposition. FINDING OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran's diabetes mellitus is due to events in active service; diabetes mellitus is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service; and diabetes mellitus is not proximately due to, the result of, or aggravated by the service-connected bilateral feet and ankle conditions. CONCLUSION OF LAW The criteria for service connection for asthma have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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 appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in February 2007. An additional letter was sent in September 2011, to which the Veteran responded that she had no additional evidence or information to submit in support of her claim. See Response received in November 2011. VA also has a duty to assist the Veteran in the development of the claim. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been obtained. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veteran's Benefits Management System (VBMS)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). For some 'chronic diseases,' such as diabetes mellitus, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. 38 C.F.R. § 3.310. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims that she has diabetes mellitus secondary to her feet and ankle conditions. Specifically, she asserts that diabetes is the direct result of lack of exercise due to the severity of her feet and ankle pain. After review of the evidence, the Board finds that service-connection is not warranted for diabetes mellitus on a direct, secondary, or presumptive basis. Turning first to direct service connection, the Board must note that the Veteran does not contend (nor does the evidence of record show) that diabetes mellitus is directly related to an injury or other event of her period of active duty. The Board finds it pertinent that the service treatment records are wholly devoid of treatment or diagnoses regarding diabetes. In fact, urinalysis tests for sugar were negative, both prior and subsequent to her active duty service. See Reports of Medical Examination dated in May 1989 and September 1993. Post-service, the Veteran was diagnosed with diabetes mellitus in 2003, some twelve years after her discharge from active duty service, and clearly outside the one-year presumptive period. 38 C.F.R. §§ 3.307, 3.309. Further, the long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's diabetes and her active service. In that regard, the October 2011 VA examiner opined diabetes mellitus "was less likely than not incurred in or caused by the claimed in-service injury, event, or illness." The examiner reasoned the Veteran was diagnosed with diabetes in 2003 and did not have neuropathy of her lower legs or feet, which would be indicative of diabetes. Her diabetes was said to be due to her obesity, which could be rectified by losing weight. While service connection is not warranted on a direct or presumptive basis, the Veteran has based her claim on a theory of secondary causation. However, other than her own statements, there is no objective medical evidence to support her appeal. Notably, the March 2013 VA examiner opined diabetes mellitus was unrelated to the service-connected feet and ankle conditions. The examiner reasoned the Veteran developed mechanical problems with her feet and ankles while in service and did not have any symptoms of peripheral neuropathy, which is indicative of diabetes mellitus. The examiner also noted the Veteran was diagnosed with diabetes mellitus in 2003 and had been on Metformin since then. Her diabetes was once again attributed to her obesity. The examiner further found that diabetes was not aggravated by her feet and ankle conditions. The examiner explained that diabetes mellitus is a chronic disease that had no connection to her mechanical problems with her ankles and feet. As outlined above, the competent medical evidence of record concludes that diabetes mellitus is not related to the Veteran's active duty service. The 'chronic disease' was not present to a degree capable of identifying the disease entity during service. No symptoms related to diabetes mellitus have been identified in the post-service medical record for continuity of symptomatology. The Board concludes that service connection for diabetes is not warranted under 38 C.F.R. § 3.303(b). Moreover, diabetes mellitus was not diagnosed to a compensable degree within the year following the Veteran's discharge from active service. 38 C.F.R. § 3.307, 3.309. Finally, the preponderance of the evidence is against a finding that diabetes mellitus is proximately due to, the result of, or aggravated by the service-connected bilateral ankle and feet conditions. 38 C.F.R. § 3.310. The only evidence of record to support the Veteran's contentions is her statements. Her statements do not establish a nexus between any acquired pathology and her military service or a service-connected disability. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to diabetes mellitus, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("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"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of her diabetes mellitus because she is not qualified to offer such opinions. Likewise, her representative is not competent to provide a probative opinion on the question of etiology, either. In short, service connection is not warranted on a direct, presumptive or secondary basis for the claimed diabetes mellitus. The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and her claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to the service-connected bilateral feet and ankle conditions, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs