Citation Nr: 1613092 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-41 933A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a disability manifested by sharp pains in the pelvic area, claimed as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for a heart disability, including as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to August 1966 and from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In August 2010, the Veteran testified at a hearing before a Decision Review Officer. A transcript of that hearing has been associated with his claims folder. In August 2013, the Board remanded the claims for further evidentiary development. The issue of entitlement to service connection for a heart disability, including as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A disability manifested by sharp pains in the pelvic area is not caused or aggravated by the service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by sharp pains in the pelvic area on a secondary basis are not met. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, VA must notify the claimant that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. Ap. 473 (2006). A pre-decisional notice letter dated in May 2008 complied with VA's duty to notify. Specifically, the letter apprised the Veteran of the evidentiary requirements for service connection on a secondary basis, the division of responsibility between the Veteran and VA with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned. Thus, the duty to notify is met. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, as well as VA and private treatment records. Additionally, the Veteran was afforded a VA examination in September 2009 with an addendum opinion in October 2013, as to his disability manifested by sharp pains in the pelvic area. As indicated above, the appeal was remanded in August 2013 to, among other things, obtain additional treatment records identified by the Veteran and schedule him for a VA examination to determine the nature and etiology of his disability manifested by sharp pains in the pelvic area. The Veteran has not identified post-service treatment records to allow VA to obtain any relevant private treatment records. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). Also, an addendum opinion was obtained in October 2013 and was secured prior to readjudication of the claim by the AOJ in October 2013. The Board finds that the September 2009 VA examination report and the October 2013 VA addendum opinion obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records contained in the claims file. The VA physician considered all of the pertinent evidence of record, including the contentions of the Veteran, and provided complete rationales for the opinions stated. As such, VA obtained adequate opinions in this case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, with respect to the claim of service connection for a disability manifest by sharp pains in the pelvic area on a secondary basis, the AOJ substantially complied with all of the Board's relevant August 2013 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the duty to assist is also met. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Here, the Veteran contends that his disability manifested by sharp pains in the pelvic area was caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran does not claim that his disability was incurred in or is otherwise related to his military service, and the record does not suggest otherwise, the Board need not explore his entitlement to service connection on a direct basis. The Veteran's disability manifested by sharp pains in the pelvic area has been currently diagnosed as a bilateral groin strains. See VA examination report dated September 2009. Additionally, he is service-connected for diabetes mellitus, type II. Thus, the crux of the appeal is whether the Veteran's groin strains were caused or aggravated by his service-connected diabetes mellitus, type II. In November 2008, Dr. P. Pickhardt, the Veteran's private physician, opined that the Veteran's pelvic pain "is undoubtedly due to scar tissue from his arteriolar bypass grafting, which," "should be considered a complication of his diabetes." During a September 2009 VA examination, the VA examiner reviewed the Veteran's claims file and opined that bilateral groin strains were not caused or aggravated by diabetes mellitus, type II. The VA examiner reasoned that the Veteran's bilateral groin pains are associated with his low back pain, which is also not known to cause or aggravate diabetes mellitus, type II. The VA examiner explained that the Veteran reported that over the last few years he had shooting pains in his B anterior groin; however, such pain is not present at all times. Further, he stated that he is a truck driver, and that prolonged sitting causes shooting pain into his groin, lasting up to a minute. The VA examiner concluded that the Veteran's "history and exam are most consistent with bilateral groin strains (although given the association with back pain it could be sciatica as well) and not scar tissue from his vascular surgery. The pain is always positional and always reproducible after long car rides with sudden movement of the legs." Subsequently, in an August 2010 statement, Dr. P. R. Lee, the Veteran's treating chiropractor, opined that diabetes mellitus, type II, "complicates his musculoskeletal pain." Dr. P. R. Lee based his opinion on a medical journal and reasoned that the musculoskeletal system is vulnerable to trauma and "generates inflammation thus compromising the healing process." He stated that chiropractic medicine does not diagnose or treat diabetes mellitus, but that it does treat the musculoskeletal system that is influenced by local or systemic inflammation of the body. Pursuant to the August 2013 Board remand, in October 2013 a VA addendum opinion was obtained to address the conflicting medical evidence of record with respect to the question of secondary service connection. The October 2013 VA physician, who was the VA physician who conducted the September 2009 VA examination report, opined that the Veteran's bilateral groin strains are "not affected by diabetes. Diabetes is not associated with groin strains nor is it a known complication of diabetes. There is no mechanism by which well controlled diabetes would cause or aggravate groin strains." Furthermore, the VA physician stated that Dr. P. R. Lee's opinion that diabetes mellitus complicates musculoskeletal pain is a general statement, as it was not supported by medical literature or an examination of the Veteran. The Board finds that Dr. P. Pickhardt's opinion is afforded no probative value, because his opinion does not directly relate the Veteran's sharp pains in his pelvic area to his service-connected diabetes mellitus. Rather Dr. P. Pickhardt's opinion related the Veteran's scar tissue to his sharp pains in his pelvic area. Furthermore, Dr. P. Pickhardt's opinion failed to provide a fully articulated rationale for his vague conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007)(holding a mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.);see also Leshore v. Brown, 8 Vet. App. 409 (1995)(holding a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The Board finds that Dr. P.R. Lee's opinion is afforded minimal probative value, as he provided a broad opinion addressing musculoskeletal pain, rather than discussing the Veteran's specific disability manifested by sharp pain in the pelvic area. Moreover, Dr. P.R. Lee opined that diabetes complicates musculoskeletal pain, and that diabetes generates inflammation and compromises the healing process; however, his opinion failed to provide a connection between the Veteran's sharp pain in the pelvic area and his service-connected diabetes mellitus. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Also, the Board finds that Dr. P.R. Lee placed at issue his competency with regard to matters concerning diabetes mellitus, because he indicated that chiropractors, such as himself, do not diagnose or treat diabetes mellitus. As such, the Board finds that Dr. P. R. Lee's opinion related to diabetes mellitus is unpersuasive and afforded little probative value. The Board finds that the September 2009 and October 2013 VA opinions are afforded significant probative weight with respect to the nature and etiology of the disability manifested by sharp pain in the pelvic area, including any relationship with the service-connected diabetes mellitus. In particular, the conclusions of the VA physician were based upon review of the entire claims file and addressed all pertinent evidence, to include the Veteran's statements and private medical opinions to the contrary. Additionally, the Board finds that the September 2009 and October 2013 VA negative nexus opinions are probative because the VA physician's rationale was factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 295, 302-04 (2008). Unlike Drs. P. Pickhardt and P.R. Lee's opinions, the VA physician specifically explained what the actual causation of the Veteran's pelvic pain. Further, the VA physician explained how the Veteran's pelvic pain was not related to his service-connected diabetes mellitus; but, rather his non-service connected back pain. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000)(holding the thoroughness and detail of the opinion are also among the factors for assessing the probative value of a medical opinion.). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that pain may be due to an underlying disability is commonly known and, therefore, the Veteran's statement that his diabetes mellitus caused or aggravated his disability manifested by sharp pain in his pelvic area has some tendency to make a nexus more likely than it would be without such an assertion. However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the September 2009 and October 2013 VA medical opinions are more probative than the Veteran's statements. The VA physician is a medical professional and was able to review the overall record, including the Veteran's history and other medical opinions. Accordingly, the preponderance of the competent evidence of record indicates that the Veteran's disability manifested by sharp pain in the pelvic area, is not proximately due to or the result of his service-connected diabetes mellitus, type II. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for a disability manifested by sharp pain in the pelvic area as secondary to service-connected diabetes mellitus, type II, is denied. REMAND The Veteran claims that his heart disability is due to his service-connected diabetes mellitus; and alternately, due to herbicide exposure during his Vietnam service. See, e.g., Veteran's notice of disagreement dated December 2008 and VA form 21-526EZ dated October 2014. Pursuant to the August 2013 Board remand directives, an October 2013 VA addendum opinion was obtained to clarify whether the Veteran ever had a diagnosis of coronary artery disease (CAD), and if so to determine the etiology. The October 2013 VA physician opined that the Veteran does not have CAD and that Dr. P. Pickhardt's prior diagnoses of CAD were in error. Although the October 2013 VA physician clarified that the Veteran did not have CAD, the physician confirmed that the Veteran was diagnosed with aortic stenosis. Since the October 2013 VA opinion, in an October 2014 statement, the Veteran indicated that he recently underwent open heart surgery, in which he asserted was related to his herbicide exposure. Furthermore, the Veteran's updated VA treatment records reflect that he also underwent a heart aortic valve replacement, carotid endarterectomy, and aortobifemoral bypass. See VA treatment record dated June 2014. To this end, the Veteran submitted two opinions from Dr. W.H. Ranum and Dr. P. Pickhardt, in which they suggest that the Veteran's aortic stenosis and aortobifemoral bypass are related to his herbicide exposure during his Vietnam service. As the record reflects that the Veteran served in the Republic of Vietnam, in-service herbicide exposure is presumed. See 38 U.S.C.A. § 1116(f). To this end, although the September 2009 VA opinion addressed whether aortic stenosis was caused or aggravated by his service-connected diabetes mellitus, there is no opinion of record whether the Veteran's heart disability, including aortic stenosis, is due his active military service, including the conceded herbicide exposure. Accordingly, an opinion is necessary to address the etiology of the Veteran's heart disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.). Given the complicated medical questions in this matter, an appropriate VA physician should provide the requisite medical opinion on remand. Lastly, on remand, any outstanding relevant medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Obtain the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received. All such available documents should be associated with the claims file. 2. Obtain records of treatment that the Veteran may have received at any VA health care facility since February 2015. All such available documents should be associated with the claims file. 3. Refer the claims file to a VA cardiologist to obtain an opinion to determine the nature and etiology of any heart disability. The entire claims file must be made available to the VA cardiologist. Pertinent documents should be reviewed. For any identified heart disability, including aortic stenosis, the VA cardiologist should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that an identified heart disability had its clinical onset during his military service or is otherwise related to service, including conceded herbicide exposure therein. In formulating the opinion above consider and comment (i) on the June 2014 VA treatment record noting that the Veteran underwent a heart aortic valve replacement, carotid endarterectomy, and aortobifemoral bypass and (ii) Dr. W.H. Ranum and Dr. P. Pickhardt's statements that suggest the Veteran's aortic stenosis and aortobifemoral bypass are related to his herbicide exposure during his Vietnam service. If not indicate whether it is at least as likely as not (50 percent probability or greater) that an identified heart disability was caused or aggravated by his service-connected diabetes mellitus. If aggravated specify the baseline of disability prior to aggravation and the permanent, measureable increase in disability resulting from the aggravation. A comprehensive rationale must be provided for the opinions rendered. If the VA cardiologist cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. 4. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2015). The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs