Citation Nr: 1605135 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 09-46 675A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a sciatic nerve disorder, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1969 to July 1970. The Veteran's service treatment records show that he also attended the United States Naval Academy from 1965 to 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded the case for further development in June 2013. The case has since been returned to the Board for appellate review. In his substantive appeal, the Veteran requested a videoconference hearing before the Board. In a December 2011 letter mailed to his last known address, the RO notified the Veteran that a hearing had been scheduled in January 2012. The Veteran failed to appear for this hearing. He has not requested that the hearing be rescheduled or provided good cause. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2015). The Board also notes that, in addition to the paper claims file, there are files in Virtual VA and the Veterans Benefits Management System (VBMS). VBMS contains a brief filed in January 2016 on behalf of the Veteran, and the Veteran's Virtual VA file contains additional VA medical records dated from October 2006 to November 2014. The remainder of the documents in those files are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for a right hip disorder and a sciatic nerve disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran has not been shown to have diabetes mellitus that manifested in service or within one year thereafter, that is otherwise causally or etiologically related to his military service, or that was caused or aggravated by his service-connected left knee disability. CONCLUSION OF LAW Diabetes mellitus was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his service-connected left knee disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the Veteran with such notice in November 2007, prior to its decision on the claim in February 2008. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service and the Veteran's diabetes mellitus claim, are in the claims file. He has also not identified any available, outstanding evidence that is pertinent to the claim being decided herein. The Veteran was also afforded a VA examination in July 2013, and an addendum opinion was obtained in August 2013. 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). As discussed below, the Board finds that the August 2013 addendum opinion obtained in this case is adequate, as it is predicated on a full reading of the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to relevant medical literature and other possible factors that may have caused the Veteran's diabetes mellitus. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board also finds that there has been compliance with the prior remand directives, and there has been no assertion otherwise. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and 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. § 1131; 38 C.F.R. § 3.303(a). 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, 116 (Fed. Cir. 2004). 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). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. In the present case, diabetes mellitus is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a). Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). That is, under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See also Groves v. Peake, 524 F.3d 1306, 1309 (2008). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of diabetes mellitus. The Veteran's March 1965 formal physical for the Naval Academy and his November 1968 pre-commission examination found his endocrine system to be normal, and he denied having a medical history of sugar or albumin in his urine. Moreover, while seeking treatment for a knee injury in service, it was noted that his medical history was otherwise unremarkable. Thus, the medical evidence does not suggest that diabetes mellitus manifested in service, and the Veteran has not alleged otherwise. In addition, a review of the post-service medical evidence shows the earliest diagnosis of diabetes mellitus was in the 1990's. Indeed, the Veteran has reported first being diagnosed in 1991. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The evidence does not show, and the Veteran does not contend, that he had continuity of symptomatology since service or that his diabetes mellitus developed within one year of his separation. Therefore, the Board concludes that diabetes mellitus did not manifest in service or for many years thereafter. Rather, the Veteran claimed that his current diabetes mellitus is secondary to his service-connected left knee disability. Specifically, he has asserted that his service-left knee disability prevented him from exercising, thereby causing him to gain weight and develop diabetes mellitus. The Veteran is currently service-connected for a total left knee arthroplasty and limitation of flexion of the left leg associated with the arthroplasty. He has also been diagnosed with diabetes mellitus. See e.g. private medical records dated in 1998, July 2013 VA examination. Thus, the crux of this case is whether the service-connected left knee disability caused or aggravated his current diabetes mellitus. The Veteran's VA medical records document a diagnosis of diabetes mellitus and on-going treatment; however, these records do not discuss the etiology of the disorder. Similarly, the Veteran's private medical records also do not discuss the etiology of the disorder. The Veteran was afforded a VA examination in connection with his claim in July 2013. That examiner confirmed the diagnosis of diabetes mellitus, but did not provide an etiology opinion. As such, an addendum opinion was obtained in August 2013. In her report, the August 2013 examiner opined that it was less likely than not that the Veteran's diabetes mellitus was related to or aggravated by his service-connected left knee disability. In so doing, the examiner noted that there is no medically based, scientific evidence to support a claim that diabetes mellitus, a defect in insulin action and insulin secretion, was related to or aggravated by a left knee disorder involving a structural abnormality of the soft tissue structures within the joint space. She also considered the Veteran's claim that his obesity was caused by his left knee disorder and thereby caused his diabetes mellitus. The examiner did note that a supermorbid obese state is at least as likely as not a major risk factor known to be associated with diabetes mellitus; however, she stated that the Veteran's left knee disorder was less likely than not the cause of his obesity. In particular, she found that obesity is a major function of caloric intake and explained that caloric intake is less likely than not related to a knee condition. She noted that the Veteran's weight had fluctuated over the years, and his ability to lose weight indicated an ability to decrease his caloric intake to better his health situation. Here, the Board notes as an example that a January 2008 VA treatment record does show that he lost over 20 pounds since his last visit. The examiner also addressed the Veteran's assertion that his left knee disorder prevented him from exercising, which caused his weight gain. She found that, while the Veteran's left knee disorder may have limited his weight-bearing abilities, exercise could be performed as either weight-bearing or non-weight bearing. Therefore, she opined that it was less likely than not that the Veteran's service-connected left knee disability limited non-weight bearing exercise, such as swimming, walking, and bench level range of motion exercises. In other words, there were other forms of exercise that the Veteran could perform regardless of his service-connected left knee disability. The Board notes that the August 2013 examiner indicated that it would be mere speculation to comment on the Veteran's genetic disposition, alcohol use, and nutritional factors as they related to his diabetes mellitus and service-connected knee disability. However, she also stated that such factors were less likely than not related to his knee condition, and therefore, were not contributory to his service-connected disability. The Veteran is competent to attest to the symptoms of his left knee disorder, what activities he can and cannot perform as a result of that disorder, and that he has gained weight since service. However, the Board finds that the August 2013 VA examiner's opinion is entitled to greater probative weight than the general assertions made by the Veteran. As discussed above, the VA examiner reviewed and considered the evidence of record, including the Veteran's statements and reported medical history, and provided a medical opinion with a supporting rationale relying on her medical training, knowledge, and expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board does not find that there is a state of equipoise with regard to positive evidence and negative evidence in this case. Rather, as discussed above, the Board finds that the August 2013 VA examiner's opinion is the most probative opinion in this case and outweighs the lay statements made by the Veteran. There is also no medical evidence showing otherwise. For the reasons outlined above, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for diabetes mellitus. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus is denied. REMAND The Veteran was afforded a VA examination in July 2013 VA examination in connection with his claims for service connection for a right hip disorder and sciatic nerve disorder. The examiner concluded that it was less likely than not that the disorders were incurred in or caused by the claimed in-service injury. In so doing, he noted that there was no evidence of an in-service injury to his back, hips, or sciatic nerve and that his complaints of right leg discomfort began seven years after his discharge from service. The examiner also opined that it was less likely than not that the disorders were proximately due to, the result of, or aggravated by his service-connected left knee disability. In so doing, he noted that the Veteran right hip degenerative joint disease, lumbar degenerative joint disease, and sciatica began after the left knee injury and a 100 pound weight gain. It was noted that those disorders were common in his age group and that the left knee injury did not cause a greatly disadvantaged gait. Nevertheless, the Board notes that the July 2013 VA examiner did not address the private medical records from Dr. J.C. (initials used to protect privacy) indicating that the Veteran was experiencing right hip pain and was favoring his left leg in January 1977. It was noted that the Veteran had a short left leg with scoliosis on the left side. Therefore, the Board finds that an additional medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right hip and sciatic nerve disorders, to include Dr. P.B., the Parker Naprapathic Clinic, and Chirocare Wellness Center. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding, relevant VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the AOJ should refer the Veteran's claims folder to the July 2013 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying medical opinion regarding the Veteran's service-connected right hip arthritis and sciatic nerve disorder. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current right hip disorder and sciatic nerve disorder that manifested in service or are otherwise causally or etiologically related thereto. He or she should also whether it is at least as likely as not that the Veteran has a current right hip disorder and sciatic nerve disorder that were caused by or permanently aggravated by his service-connected left knee disability. In rendering this opinion, the examiner should specifically address the medical records from Dr. J.C. indicating that the Veteran was experiencing right hip pain and was favoring his left leg in January 1977. It was noted at that time that the Veteran had a short left leg with scoliosis on the left side. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs