Citation Nr: 1604148 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 10-30 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for Diabetes Mellitus, Type II (DM). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active duty from July 1989 to July 1999 and from October 2001 to November 2002. He had subsequent periods of active duty for training and inactive duty for training. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, the Board sought an expert opinion regarding the diabetes claim, from the Veterans Health Administration (VHA). Such opinion was received from VHA in March 2014. In May 2014, the Veteran submitted additional evidence. He indicated that he did not waive Agency of Original Jurisdiction (AOJ) consideration of the evidence in the first instance so the Board remanded the matter for AOJ consideration. The AOJ considered that evidence in an October 2014 Supplemental Statement of the Case (SSOC). In December 2014, the Board denied service connection for DM. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the parties filed a Joint Motion for Remand requesting that the Board's December 2014 decision be vacated and remanded to the Board for action consistent with the July 2015 remand. Later that month, the Court ordered that the Board decision be vacated and remanded for action consistent with the Joint Motion for Remand. In January 2016, the appellant's attorney submitted additional evidence, to include a private medical opinion and several lay statements, and indicated that the Veteran was waiving initial review by the RO. As the Board is granting service connection based upon the totality of the evidence received, including the recently submitted evidence, compliance with the Joint Motion for Remand is not necessary as the Veteran is receiving the full benefit sought on appeal, FINDING OF FACT The Veteran's current DM is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for DM have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with DM, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as DM, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In his June 2009 claim, the Veteran indicated that his diabetes began in 2004 and that he was treated at the Navy Medical Clinic in Millington, Tennessee from that time. In his September 2009 notice of disagreement, the Veteran stated that diabetes was diagnosed at the VA medical center (VAMC) and that there were relevant blood sugars in his service treatment records. In a July 2009 statement, the Veteran indicated that throughout his 11 years of active duty and 9 years of Reserve duty, he had consumed many starch products, sweet products, and fried food products from the Navy, which he believed contributed greatly to his being diagnosed as a diabetic. In a letter received in October 2009, the Veteran stated that he was diagnosed with diabetes in 2004. He indicated that his diabetes was controlled with diet and medication from 2004 to 2008 but that it was made worse by stress from his unit commanding officer and chiefs during Reserve inactive duty for training (drill weekends) from 2008 to 2010. He explained that he informed his unit commanding officer of what he perceived as a noncommissioned officer's (NCO's) alcohol abuse, was subject to retaliation, the military obtained evidence from his physician of his diabetes, he was forced to retire in 2010, and the stress from this caused his diabetes to worsen during his drill weekends from 2008 to 2010. Service treatment records reveal that in July 1994, the Veteran was referred from dental for clearance for an irregular heartbeat. At that time he reported that he had had episodes of lightheadedness 5 years earlier and was diagnosed with an iron deficiency. Assessment at that time was probable heart murmur. In a September 1994 periodic report of medical history, the Veteran indicated that he had experienced dizziness or fainting spells. A note on that form indicated that he had a dizzy feeling 1 to 1.5 years earlier. In the September 1999 service separation medical examination report, there was no mention of diabetes. The report revealed laboratory finding of 56 mg/dl for glucose along with other findings. In his September 1999 report of medical history, the Veteran reported that he either then had or previously had weakness and dizziness. A note on that form indicated that this was due to syncope/dehydration. VA treatment records associated with the claim reveal that in May 2001, the Veteran was seen for dizziness and nausea that occurred while eating chicken, mashed potatoes, and a vegetable. He was positive for abdominal gas and chest pain. The May 17, 2001 note includes a notation that the physician considered the Veteran's fluid intake and urination frequency and that the Veteran had been hyperglycemic once after eating (at 150mg/dl blood sugar) and on the date of the note (at 137 mg/dl blood sugar). He was assessed with a cardiac arrhythmia. There was no indication of diabetes. Neither service nor VA treatment records document that the Veteran had diabetes prior to December 2004. However, there were earlier notations of blood test results with glucose readings with an "H" next to them, along with glucose readings with "L" next to them, and some with neither "L" nor "H " next to them. In conjunction with his claim, the Veteran was afforded a VA examination in February 2013. The examiner indicated that the Veteran had diabetes mellitus type II diagnosed in December 2004 by random plasma glucose with classic symptoms of hyperglycemia. In the remarks section of the report, the examiner indicated that the Veteran had symptoms of dizziness, polydipsia, and polyuria during service and that although these were concerning for diabetes mellitus they were nonspecific. The examiner stated that the blood glucose of 56 mg/dl (at separation from the first period of active service) spoke to naturally well controlled blood glucose levels. The examiner indicated that it was less likely than not that the Veteran's diabetes was not incurred in-service. In January 2014, the Board requested a medical opinion from a VHA physician. In that request, the Board explained that the February 2013 opinion was confusing. First, the February 2013 examiner used a double negative in the opinion statement (it appeared by accident). Second, the examiner stated that the in-service symptoms were concerning but never explained the significance of the symptoms. The VHA opinion was provided by a VA physician in the Division of Endocrinology, Diabetes, and Metabolism. The physician addressed the Veteran's contention that his eating habits during service led to his diabetes. He explained that the record did not provide specific enough information regarding his daily diet during service but that if his diet was high calorie, high fat, and sugary, there may be some contribution to weight gain and later development of diabetes. He noted that if the Veteran was only offered high calorie high fat and sugary foods then there may be some contribution to weight gain and later on development of DM. He then stated that even with such a diet, moderation can be used to ensure that daily calorie intake does not exceed normal recommended daily values, especially if one is concerned about DM or has a strong family history of DM. He observed that at the time of the Veteran's exit examination in 1999 a blood sugar of 56 was recorded. He noted that this was actually a lower value and the significance of the low at the time was not clear. The examiner observed that there were situations where a blood sugar that was below the standard range may be normal for some people. The examiner indicated that either way the Veteran's blood sugar was not indicative of DM or pre-DM, although it had to be stated that this was only one point test. He noted that, in conclusion, without specifically knowing what the Veteran was eating day in and day out along with what was actually being offered, he could not conclude that the service diet contributed to later development of DM. He then noted that he could not definitively state whether the Veteran patient had started to develop DM while in the service, but in his opinion this seemed less likely. In reference to the second question regarding assertions to the effect that the symptoms complained of in service were the start of DM, the examiner noted that symptoms of DM may include increased thirst (polydipsia) and urination (polyuria) which was mainly due to osmotic diuresis as higher amounts of glucose were filtered through the kidney pulling extra water with it. He observed that this phenomenon may in turn lead to decreased intravascular volume which may lead to symptoms which can include lightheadedness and postural instability. He noted that with that being said, blood sugars typically have to be quite elevated for a prolonged period of time for these symptoms to develop. He observed that the ADA recognized that the diagnosis of DM may include a random blood sugar over 200 with symptoms, he would not expect the symptoms the Veteran was experiencing to be due to developing DM. He noted that at the time of the Veteran's exit examination a blood sugar of 56 was recorded, which although was just one test, was not consistent with DM or a blood sugar consistent with having diabetic symptoms. He observed that the Veteran was formally diagnosed with DM in 2004. He also noted that in 2001, the Veteran was seen at a VA ER and his blood sugars at that time were above normal, 135mg/dI on 5/17/01 and 151mg/dI on 5/15/01. He stated that the blood sugars present at that time were in line with impaired glucose tolerance which could also be classified as pre-diabetes. He again stated that these were only a couple tests so he could not say certainly that he did not have DM at that time, but from information available, it suggested only pre-diabetes. He noted that he mentioned this because this would make it less likely that the Veteran had developed DM one year after his discharge from the military in 1999 and furthermore that symptoms of DM were present in the service since blood sugars were not even that elevated to expected symptoms in 2001. In support of his claim, the Veteran submitted a May 2014 letter from K.A.L., M.D., who indicated that the Veteran had been a patient at a Diabetes and Endocrinology Center for the last 4 years and was being treated for diabetes. Dr. L. stated that at the time of the Veteran's discharge from service he had been experiencing fatigue and dizziness. He noted that the Veteran's records showed that he had certain blood glucose levels at that time and in May of 2001. Dr. L. observed at the time of his discharge from the service, the Veteran had been experiencing fatigue and dizziness. He indicated that upon review of his records, his examination during that time had yielded blood glucose level of 56 mg/dl as well readings of 155 and 151 mg/dl in May of 2001. He reported that patients with pre-diabetes/impaired glucose tolerance could experience fluctuating blood glucose levels, outside of the normal range and possibly have low blood glucose due to exaggerated glycemic response, and reactive hypoglycemia. He indicated that over time pre-diabetes and impaired glucose tolerance progressed to onset of diabetes. He noted that at the time of above evaluation, the Veteran was not advised of his abnormal glucose tolerance test, hence evaluation was incomplete and inadequate. He opined that based on the natural history of progression of disease, the Veteran more than likely had impaired glucose tolerance at the time of his discharge from the service and that eventually progressed to type-II diabetes. He stated that it was his opinion that the Veteran should have been evaluated thoroughly at that time, with the glucose tolerance test and glycemic status being stratified, so as to recommend proper dietary intervention as well as lifestyle changes. He indicated that studies had shown that intensive lifestyle intervention and/or treatment with metformin could alter the course of progression from pre-diabetes to diabetes, which was not afforded this Veteran, hence the care was inadequate and was lacking in proper evaluation. In further support of the Veteran's claim, his attorney submitted a December 2015 report from A. A., M.D, as to the relationship between the Veteran's current DM and his period of service. Dr. A. provided a detailed historical review of the record, including a review of the VHA opinion that had been prepared in conjunction with the claim. Dr. A indicated that it was more likely than not that the Veteran developed diabetes while in service. He noted that the diagnosis of diabetes was objective not subjective and that it was purely made by measurement of blood sugar levels. He reported that the VHA examiner was incorrect in stating that an individual needed a blood sugar of greater than 200 with symptoms in order to be diagnosed with diabetes. He stated that symptoms were not necessary to make a diagnosis of diabetes. He observed that the Veteran was already at risk of developing diabetes because of family history. This was compounded by the fact that while in the service he went from weight of 123 in 1989 to 175 in 2001. This was a weight gain of 52 lbs. in 12 years. He stated that while it was not the food that the Veteran directly ate while in service that contributed to his development of diabetes, the weight gain he sustained in service did more likely than not contribute to his development of diabetes. He further indicated that it was important to note that pre-diabetes and diabetes were not two separate and unrelated diagnoses, rather, they were diagnoses along a spectrum of blood sugars. If left untreated, pre-diabetes turned into diabetes. Based upon his blood sugar values, the Veteran clearly had pre-diabetes in service. He further indicated that the Veteran more likely than not had metabolic syndrome, with noted elevated triglycerides, blood pressure, and decreased HDL. He observed that all of this went unnoted and untreated and developed into uncontrolled diabetes. He indicated than an example of how much diet and exercise could impact sugar levels was a notation from 2004 where the Veteran was noted to have a blood sugar level of 141 after he had had a blood sugar level of 319 the year before. In support of the Veteran's claim, the Veteran's wife submitted an affidavit that during his period of service, the Veteran frequently ate fried and starchy food. The Veteran also submitted an affidavit that during his active duty service, at least twice a day, every day, he ate food that was high in starches and sugar. He indicated that he was limited to eating the food that the Navy gave him, particularly while at sea. He noted that most of the time, the Navy gave him potatoes, rice, gravy, beans, pasta, syrup, pancakes, and breads to eat. They also had fried food at least three to four times per week. He further reported that the Navy provided them with a lot of fruit punches and juices to drink, which were high in sugar. Following a thorough review of the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for DM. While the Veteran's service treatment records do not contain any diagnoses of DM, the record does demonstrate elevated readings of glucose. Moreover, in support of his claim the Veteran has submitted several statements, including one from his spouse, that attest to the foods which the Veteran was provided during his period of active service. The Veteran has also submitted several statements from private physicians as to their beliefs that the Veteran's current DM is related to his period of active service, with the physicians providing detailed support for their beliefs. Moreover, while the VHA opinion provided detailed explanations to support the examiner's beliefs that the Veteran's current DM was not related to his period of service, he indicated that could not conclude that the service diet did not contribute to later development of DM. He also reported that he could not definitively state whether the Veteran had started to develop DM while in the service. Given, the foregoing, the medical opinions are at least in equipoise as to whether the Veteran's current DM is related to his period of service. The record shows that the Veteran has a current diagnosis of DM. The Board has reviewed the review of the lay and medical evidence of record. The Board finds that the medical opinions are in equipoise as to the relationship between the Veteran's current DM and his period of active service and that reasonable doubt must be resolved in favor of the Veteran. As such, service connection is warranted for DM. ORDER Service connection for DM is granted. ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs