Citation Nr: 1416790 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 14-00 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for above the knee right leg amputation to include as secondary to diabetes. 2. Entitlement to service connection for below the knee left leg amputation to include as secondary to diabetes. 3. Entitlement to service connection for type II diabetes mellitus (diabetes). REPRESENTATION Veteran represented by: Douglas J. Rosinski, Esq. ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran had active duty from January 1984 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system reveals treatment records from April 2011 to December 2013. The Veterans Benefits Management System does not reveal any additional medical documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's above the knee right leg amputation is not related to service or a service-connected disability. 2. The Veteran's below the knee left leg amputation is not related to service or a service-connected disability. 3. The Veteran's type II diabetes mellitus did not have onset during service, did not manifest to a compensable degree within one year of service, and is not related to service. CONCLUSIONS OF LAW 1. Service connection is not warranted for above the knee right leg amputation on a direct or secondary basis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). 2. Service connection is not warranted for below the knee left leg amputation on a direct or secondary basis. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). 3. Service connection is not warranted for type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a)(2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). A July 2012 letter issued prior to the September 2012 rating decision provided notice of the requirements for direct service connection. The letter also provided notice of what VA would obtain or provide and the information and evidence that the Veteran must provide. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3) . The Veteran's service treatment records (STRs), private treatment records, Social Security Disability records, and VA treatment records have been obtained. In September 2012 and November 2013, the Veteran was afforded VA examinations regarding the claims on appeal. Supplemental opinions were obtained in January 2014 and February 2014. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate, as they are predicated on a review of the claims file, the pertinent and credible evidence of record, and current medical findings. In addition, the examinations and opinions, when taken together, provide a thorough rationale for the conclusions reached based upon the credible evidence of record. The Board therefore finds that the duties to notify and assist the Veteran have been fulfilled and will proceed to address the merits of the claim. Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Second, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Third, service connection may be granted for certain diseases, such as diabetes mellitus, if manifested to a compensable degree within one year of service. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2013); 38 C.F.R. § 3.309 (2013). Finally, service connection may be awarded for a disability that is either caused or chronically worsened by an already service-connected disability. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). The Veteran argues that his diabetes had onset during service because a June 1985 service treatment record showed trace amounts of albumin. He also argues that his subsequent right above the knee amputation and left below the knee amputation are related to his diabetes. Service treatment records reflect a glucose level of 80 and the Veteran's reports that his mother, grandmother, and grandfather had diabetes. Service treatment records further reflect a lower back injury in May 1984 and a history of right ankle issues. Private treatment records reflect that the Veteran initially had a right below the knee amputation and then a right above the knee amputation in October 2004. In July 2010, he had his right middle finger amputated. Findings related to an August 2010 abdominal aortogram stated that the Veteran likely had Buerger's disease of the hand. There was also central involvement. Buerger's disease was the likely cause of changes seen at the ankle and foot of the left leg. As late as March 2011, the Veteran did not have a diagnosis of diabetes and he denied a history of diabetes. VA treatment records reflect that the Veteran was diagnosed with "new onset" diabetes in May 2011. These records also have notations concerning Buerger's disease. However, a March 2012 note found that the Veteran more likely had early onset peripheral vascular disease or embolism. The physician also found that the Veteran might have popliteal entrapment syndrome in his leg and finger involvement of collagen vascular etiology. In April 2012, a physician noted that Buerger's disease was not recorded on the pathology of the right leg. The Veteran had a left below the knee amputation in June 2012. In July 2012, a physician described that the Veteran's symptoms were suggestive of Buerger's disease due to his significant smoking history, concomitant venous phlebitis, upper extremity involvement, and vasculitis on pathology. The Veteran has submitted several medical articles in support of his claim. The first article found that type I and type II diabetics had increased urinary albumin excretion rates with decreased serum albumin excretion rates. The article concluded that microaluminuria is a marker for diabetic nephropathy and cardiovascular disease in patients with diabetes. The second article stated that measuring miomarkers such as ischemia-modified albumin and homcystein, combined with using the ankle-brachial index, could be helpful in monitoring and early diagnosis of peripheral arterial disease in type II diabetes. The third article found that elevated albumin excretion rates are a hallmark of microvascular damage in those with diabetes. The Board considers these articles as they are from credible medical professionals and entitled to weight based upon the credentials of their authors. Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). However, the Board does not give great weight to the articles as they discuss albumin levels in those already diagnosed with diabetes instead of the issue in this case which involves albumin as a marker for diagnosing the disease. The Veteran also submitted a private medical opinion from a physician who is Board Certified in Emergency Medicine. The physician found that it was at least as likely as not that the Veteran's diabetes had onset during service and that his subsequent amputations were caused by diabetes. The physician explained that the trace albumin results documented at discharge correlated with the currently accepted concept of microaluminuria. The Veteran's single blood glucose examination at discharge did not exclude microaluminura or the onset of diabetes, especially in this case where there was no other evidence of blood glucose testing. The approximately 20 year period between the onset of the Veteran's diabetes and the subsequent amputations was consistent with the expected time for untreated diabetes-related peripheral artery disease to develop to the point where amputation would be required. The physician noted that the Veteran's smoking history could have contributed to his peripheral artery disease to some degree. However, the Veteran's family history of diabetes supports the fact that he was at higher risk for diabetes and also reduces the chance that an outside cause, such as smoking, caused his diabetes and subsequent amputations. The Veteran was provided a VA examination in September 2012 with respect to his leg amputations. The examiner found that it was not at least as likely as not that the Veteran's amputations were due to any possible leg injury during service. Instead, the examiner found that the Veteran's heavy smoking history could have led to peripheral vascular disease that caused him to have to have his legs amputated. The examiner found that diabetes could also affect the Veteran's legs, but this effect was unlikely in the Veteran's situation as the Veteran seemed to have his diabetes under control. The examiner found that there was an extremely low likelihood that any twisting injury in service would have caused bilateral amputations. The Veteran was provided a VA examination with respect to his diabetes and amputations in November 2013. The examiner found that the Veteran's bilateral lower extremity amputations and right hand third finger amputation were secondary to peripheral vascular disease and the Veteran's long smoking history. It was less likely than not that the Veteran's current diabetes, peripheral vascular disease, or amputations were related to the trace protein with low normal blood glucose on discharge. There were many causes for trace urinary protein which are much more likely given the Veteran's normal blood glucose. The examiner considered the Veteran's long-standing smoking history and found that his peripheral vascular disease was highly likely related to tobacco abuse. The November 2013 VA examiner provided an addendum opinion in January 2014. He stated that it was less likely than not that the single recorded albuminuria upon discharge was an expression of initial onset diabetes. Although albuminuria is very non-specific, it has been associated in the context of diabetes as a predictor of overt diabetic nephropathy. The Veteran still did not have overt diabetic nephropathy as indicated by normal urine levels in 2011 and 2012. The private opinion considered albuminuria. However, this testing referred to those already diagnosed with diabetes, which, at the time of discharge, the Veteran was not. The VA obtained an opinion from a Board Certified Endocrinologist in February 2014. The opinion stated that the trace albumin found at discharge could be caused by several factors including high blood pressure, illness, heavy exercise, urinary tract infections, poor blood glucose control, or smoking. The Veteran had a normal blood sugar level of 80 during service, which would point against a finding of diabetes onset during service. Additionally, he found that the Veteran's microalbuminuria was incidental as there were negative tests in May 2011 and December 2012. Therefore, this would suggest that microadlbuminuria is not a predictor of diabetes. The endocrinologist concluded that using microalbumin as a predictor of diabetes, especially when there is negative glucose testing, is inappropriate. The Board considered the Veteran's that his diabetes had onset during service because a June 1985 service treatment record showed trace amounts of albumin. Unfortunately, the Veteran is not competent to express medical conclusions concerning the cause of his diabetes and his amputations. 38 C.F.R. § 3.159(a)(2)(2013); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the evidence weighs against a finding that the Veteran's diabetes had onset during or within one year of service. 38 C.F.R. § 3.303(d); 38 C.F.R. § 3.309. The Board considers the opinion submitted by the Veteran stating that his diabetes had onset during service. However, this opinion is outweighed by the other evidence. First, treatment records contradict a finding of onset of diabetes during or shortly after service. The private treatment records, as late as March 2011, do not contain a diagnosis and include the Veteran's denial of a diagnosis of diabetes. VA treatment records diagnose diabetes in May 2011 and consider this diagnosis as new onset. Second, the articles submitted by the Veteran do not strongly support the private opinion as these addressed diagnoses of other symptoms in diabetics such as diabetic nephropathy, general cardiovascular disease, peripheral artery disease, and microvascular damage. The articles did not support a finding that increased albumin levels were an indication of a diagnosis of the disease itself. Third, the private opinion is contradicted by the November 2013 VA examiner and January 2014 VA addendum opinion that stated that albuminuria can be caused by several factors. The private opinion failed to explain why the Veteran's albumin levels were not related to other factors and instead were related to diabetes. The opinion described that one blood glucose test could not exclude diabetes, but did not state why the albumin levels were not caused by other factors. The Board gives weight to the November 2013 VA examiner and addendum opinion in this respect. Finally, the Board gives greater weight to the February 2014 VA opinion from the Board Certified endocrinologist. He stated that trace albumin is non-specific and not necessarily an indicator of diabetes. The Board gives greater weight to this opinion based upon the physician's expertise in the field of endocrinology as compared to the private physician's more generalized credentials. Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007). The Board therefore finds that the weight of the evidence is against a finding that the Veteran's diabetes had onset during or within one year of service. 38 C.F.R. § 3.303(d); 38 C.F.R. § 3.309. The Board also finds that the evidence is against a finding of a causal relationship between the Veteran's diabetes and service. Shedden, 381 F.3d at 1167. There is no evidence that the Veteran's diabetes is causally related to service. The Board therefore does not find a causal relationship between the Veteran's diabetes and service. Service connection is therefore not warranted for the Veteran's type II diabetes mellitus. 38 C.F.R. § 3.303(a). The Board finds that service connection is not warranted for the Veteran's above the knee amputation of the right leg and below the knee amputation of the left leg. The Veteran does not contend and the record does not reflect that service connection is warranted for the Veteran's amputations based upon a causal relationship to service. The Board considered the Veteran's contentions that his subsequent right above the knee amputation and left below the knee amputation are related to his diabetes. In this case there is no evidence that the Veteran is competent to express medical conclusions concerning the cause of his diabetes and his amputations. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the September 2012 VA examiner found that the Veteran's amputations were not related to any possible injury during service and instead more likely related to peripheral vascular disease. The Board therefore finds that the evidence is against a finding of a causal relationship between the Veteran's amputations and service. Id. The Board also finds that service connection is not warranted on a secondary basis. 38 C.F.R. § 3.310. Most importantly, service connection cannot be granted for amputations that are secondary to diabetes because the Board finds that service connection is not warranted for diabetes. However, the evidence is also against a finding that the Veteran's amputations are secondary to diabetes. Treatment records did not reflect a diagnosis of diabetes until May 2011 while the Veteran's right leg amputation was performed in October 2004 and his left leg amputation was performed shortly after the diagnosis in June 2012. Private and VA treatment records did not attribute the Veteran's peripheral vascular disease or amputations to diabetes and instead cited early onset peripheral vascular disease or embolism or Buerger's disease as possibly leading to the need for amputations. The September 2012 VA examiner and treatment records also pointed to the Veteran's smoking history as a cause for the Veteran's Buerger's disease or peripheral vascular disease. As a whole, the Board gives greater weight to the VA opinions as compared to the private opinion that found diabetes led to the Veteran's amputations. These opinions are more consistent with the Veteran's treatment records. The weight of the evidence therefore preponderates against a finding of entitlement to service connection on a secondary basis. Id. Service connection is not warranted for the Veteran's above the knee right leg amputation or below the knee left leg amputation. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, however, this doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for above the knee right leg amputation on a direct and secondary basis is denied. Entitlement to service connection for below the knee left leg amputation on a direct and secondary basis is denied. Entitlement to service connection for type II diabetes mellitus is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs