Citation Nr: 1338566 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-30 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to service-connected hypertension. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from January 1977 to February 1992. This matter comes before the Board of Veterans' Appeals Board) on appeal from April 2009 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran had a hearing before the undersigned Veterans Law Judge in October 2011. A transcript of the hearing was created, reviewed, and associated with the claims file. The Board previously remanded in September 2012 for further development. The requested development has been completed and the claim is ready for appellate review. The issue of entitlement to service connection for an acid reflux disorder, to include gastroesophageal reflux disease (GERD) was also the subject of that remand. Since then, service connection for GERD was granted in a May 2013 rating decision. As the benefit sought on appeal has now been fully granted, the issue of service connection for GERD is no longer before the Board. The Board has reviewed the Veteran's Virtual VA file and has considered all of the documents contained therein in the decision below. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's diabetes mellitus is etiologically related to a disease, injury, or event in service, or manifested in service or within one year of discharge, and is not attributable to service-connected hypertension. CONCLUSION OF LAW Service connection for diabetes mellitus is not warranted, to include as secondary to hypertension. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain, and of how VA determines the disability rating and effective date. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The Veteran submitted a private doctor statement. The RO obtained all of the available service treatment and personnel records as well as VA treatment records. In September 2012, the RO submitted a request to the National Personnel records Center (NPRC) for all of the dependent inpatient clinical records for the Reynolds Army Hospital as was requested by the Board in its September 2012 remand. In October 2012, the NPRC replied that a search was conducted and no records were located. The Veteran was informed of the same via a December 2012 letter and was given the opportunity to submit the records if they were in his possession. The Veteran did not reply. In December 2012, the RO submitted an official finding of unavailability for the records. The RO has fulfilled its duty to obtain these records. An additional remand to attempt to obtain the records would be futile and is not needed. VA provided the Veteran with an examination in connection with his claim in March 2009. In the September 2012 remand, the Board noted that the March 2009 examiner provided an opinion only as to the relationship between diabetes mellitus and hypertension. Therefore, the Board ordered that an opinion as to whether diabetes mellitus was incurred in service to be obtained. In April 2013, the RO obtained an addendum opinion which addressed the relationship between diabetes mellitus and service. As will be discussed in greater detail below, the Board finds that the March 2009 examination and April 2013 addendum opinion are adequate. Indeed, they are based on a review of the claim file, an examination of the Veteran, consideration of private treatments and the opinions contain adequate reasoning. The Veteran testified at a hearing in front of the undersigned and was given the opportunity to submit any additional evidence in support of his claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria and Analysis Initially, the Board notes the Veteran does not assert that his claimed disorders are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Diabetes mellitus shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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 are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran asserts that he has diabetes mellitus which is due to his service connected hypertension. In the alternative, he argues that diabetes mellitus was first manifest in service. Service treatment records show fasting glucose testing in January 1979 was 129, and 137 in April 1979. No other elevated glucose levels were noted during service and diabetes mellitus was not diagnosed in service. A discharge examination is not of record. Post service private treatment records show the Veteran was noted to have elevated blood sugar leves in February 1996 at a level of 154. He was diagnosed with diabetes mellitus type II in October 1996. The Veteran was afforded a VA examination in March 2009. After an interview and examination of the Veteran, he was diagnosed with diabetes mellitus type II. The examiner opined that diabetes was not likely caused by hypertension. He reasoned that there is no evidence based on data studies that indicate hypertension causes diabetes. In a September 2009 letter, the Veteran's private physician stated that diabetes mellitus type II more likely than not began in service. He noted the Veteran had elevated blood sugar levels in service. An addendum medical opinion was obtained in April 2013. The examiner noted the elevated glucose levels in service and noted the Veteran was diagnosed with diabetes in 1996. The examiner noted that there were no documented glucose levels in service after 1979 while on active duty and there is no indication of further symptomatology consistent with a diagnosis of type II diabetes, such as increased thirst, increased urination or weight loss. The examiner further noted the Veteran had intermittent elevated blood sugar levels in service during a four month period with levels less than 140 including normal levels in between the elevated readings. The medical record is silent following 1979 until 1996. This is a seventeen year period of lack of symptomatology or other objective evidence of diabetes. The examiner concluded that diabetes mellitus type II was less likely than not incurred in service or is otherwise related to service. Considering the evidence above, the Board finds that the preponderance of the evidence is against a finding of service connection. In this regard the Board acknowledges that there are two medical opinions of record regarding the relationship between diabetes and service. However, the Board finds the VA medical opinion of April 2013 is more reliable and affords it greater probative weight. Indeed, the April 2013 VA examiner considered the entire record, to include the private opinion of September 2009 and the in-service elevated glucose levels. She provided a full rationale for her opinion to include the reasons why the in-service elevated glucose levels alone were not sufficient to render a diagnosis of diabetes in service. Her conclusion that diabetes was not incurred in service and is not otherwise related to service was accompanied by a full rationale and was based on an accurate factual premise. On the other hand, the private physician provided no rationale beyond noting the elevated glucose levels in service. While he opined that these are indicative of diabetes in service, he did not address the other glucose readings during the same time period that were normal, or that absence of other symptomatology related to diabetes, such as the absence of excessive urination or weight loss as noted by the VA examiner. Therefore, the Board finds the April 2013 VA medical opinion to be more thorough and finds it to be more reliable than the September 2009 private opinion, and affords it greater probative weight. The Board acknowledges that the April 2013 VA examiner stated in her opinion that the first consensus of a diagnosis of type II diabetes was in 1979. While this may be viewed as a statement that diabetes was first diagnosed in service, when the sentence is considered in relationship to the entire opinion, it is clear to the Board that this was a typographical error on the part of the examiner. Indeed, just above that sentence, the examiner had noted that diabetes was diagnosed in 1996. Following that sentence, the examiner stated that the diagnostic criteria included glucose levels greater than 140. None of the glucose levels in service reached that level. Finally, in the remainder of the opinion, the examiner is very clear in emphasizing that diabetes was not diagnosed in service but rather in 1996. Therefore, the Board is satisfied that the examiner's statement that the first consensus of a diagnosis of type II diabetes was in 1979 is a typographical error and it is clear the examiner meant to say 1996. Regarding secondary service connection, the Board finds that the probative evidence is against a finding that hypertension caused or aggravated the diabetes mellitus type II. Indeed, the March 2009 VA examiner opined that diabetes mellitus was not caused by hypertension and explained that there is no data based on studies to support such a relationship. The Board acknowledges that the examiner did not explicitely indicate whether hypertension aggravated the diabetes mellitus type II. The Board is cognizant that a medical opinion addressing secondary service connection must consider both causation and aggravation as potential theories of entitlement. However, in this regard, the Board notes the March 2009 contained several etiology opinions. Just above the diabetes mellitus etiology opinion, the examiner addressed two other disabilities which he explicitely found had been aggravated by diabetes mellitus. Therefore, it is clear that the examiner was aware that aggravation was a potential theory to be considered, and thus, the Board finds that the subsequent opinion that his hypertension did not cause diabetes mellitus was very likely intended to encompass both aggravation and causation. Considering the above, the Board finds the March 2009 opinion to be adequate and reliable and affords it great probative weight. Moreover, it stands uncontradicted by any other competent opinion of record. Finally, the Board finds there is no competent evidence showing a diagnosis of diabetes mellitus within a year of separation from service. Rather, the record shows that diabetes was newly diagnosed in October 1996, four years after separation from service. Therefore, presumptive service connection is not for application. See 38 C.F.R. § 3.309(a). The Board acknowledges and has considered the Veteran's arguments that he should have been diagnosed with diabetes in service. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d. 1372 (2007). Significantly, however, although the Veteran did report a number of stomach-related complaints in service as evidence of his now service-connected GERD, he has not reported experiencing symptoms such as excessive urination or weight loss, which the VA examiner noted could be indicative of diabetes mellitus. Instead, he has merely pointed to his in-service glucose readings. In this regard, the Board finds that he is not competent to provide an opinion as to issues which require medical expertise, and the diagnosis of diabetes based on glucose readings is a complex medical issue which requires expertise beyond that demonstrated by the Veteran. Therefore, the Board affords little probative weight to the Veteran's assertions that diabetes had its inception in service and assigns greater probative value to the VA examiners' opinions as these were prepared by skilled, neutral, medical professionals after obtaining a history from the Veteran and conducting an examination. In summary, the Board finds that the preponderance of the evidence is against granting service connection for diabetes mellitus, to include as due to the service connected hypertension, and the benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus type II, to include as due to hypertension, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs