Citation Nr: 1627174 Decision Date: 07/07/16 Archive Date: 07/14/16 DOCKET NO. 12-24 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a heart disability, to include as secondary to service-connected PTSD and/or dengue fever. 3. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Veteran represented by: Mary M. Long, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran presented testimony at a personal hearing before a Veterans Law Judge in August 2013. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In April 2016, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. The Veteran has not responded to the April 2016 letter; as such, the Board will proceed with the matter on appeal. In September 2013 and April 2014, the claims were remanded for further evidentiary development. As will be explained below, a review of the record reflects substantial compliance with the Board's Remand directive with regard to the claim of service connection for diabetes mellitus. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) most recently continued the previous denials in a November 2015 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The claims of service connection for hypertension and heart disability are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify you if further action is required on your part. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Diabetes mellitus, type II, did not have its onset in service, did not manifest within the one year presumptive period, and is not otherwise related to the Veteran's active military service to include malnutrition. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred or aggravated in service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Here, a December 2011 letter complied with VA's duty to notify the Veteran. In particular, this letter apprised the Veteran of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist as to the claims on appeal, the RO obtained the Veteran's complete service treatment records (STRs), as well as VA and private treatment records in furtherance of his claims. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. Pursuant to the April 2014 Board Remand, the Veteran was afforded a VA medical opinion in August 2015 with respect to the etiology of diabetes mellitus. As indicated in the discussion below, the medical opinion indicates that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his complaints, and rendered findings consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the August 2015 VA medical opinion is sufficient for evaluation purposes. See 38 C.F.R. § 4.2 (2015); see also 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); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran asserts he has diabetes mellitus that was incurred during his active military service. Specifically, he contends he suffers from diabetes mellitus, type II, as a result of malnutrition suffered during his active duty service. See the September 2013 Board hearing transcript, pgs. 17-19. For the reasons set forth below, the Board concludes that service connection is not warranted. A review of the Veteran's STRs, including his February 1946 separation examination, does not document any complaint of or treatment for diabetes mellitus. It is undisputed that the Veteran served in Southeast Asia during World War II. Therefore, with respect to his contentions of malnutrition, the Board has no reason to disbelieve the Veteran's contentions pertaining to lack of adequate nutrition while serving in a combat theater during World War II. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, supra. VA and private treatment records document an on-going diagnosis of diabetes mellitus, type II. See, e.g., the VA treatment records dated April 2006 & the private treatment records dated July 2010. At the August 2013 Board hearing, the Veteran testified that he was diagnosed with diabetes approximately 25 years prior to the hearing. Pursuant to the April 2014 Board Remand, the Veteran was afforded a VA medical opinion in August 2015. The examiner concluded that the Veteran's diabetes mellitus, type II, "was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner explained that the Veteran's STRs do not reveal any symptoms of diabetes mellitus. He further noted that diabetes mellitus was not diagnosed until several years after the Veteran's separation from service." The examiner continued, "[a]lthough the Veteran states that his diabetes mellitus is a result of malnutrition suffered during active duty service, diabetes mellitus is an endocrine condition due to insufficient secretion of insulin and/or target-tissue insulin resistance, and is not related to malnutrition." The examiner concluded, "[a]s such, it is less likely than not that the Veteran's . . . diabetes mellitus had [its] clinical onset in service or [is] otherwise related to service." The Veteran has not produced a medical opinion to contradict the conclusions set forth in the August 2015 VA medical opinion. As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the August 2015 VA examiner's opinion stands unchallenged as competent medical evidence on the crucial question of nexus. The Board finds that the competent medical evidence demonstrating the absence of nexus between the currently diagnosed diabetes mellitus and the Veteran's active duty service outweighs any evidence of record that is suggestive of nexus. In particular, the August 2015 VA opinion complied with the instructions of the prior Board remand and was based on a review of the record, including the lay statements and evidence submitted by the Veteran, thoughtful analysis of the Veteran's entire history, and review of the pertinent medical literature. The Board therefore places significant weight on the findings of the August 2015 VA examiner. See Nieves-Rodriguez, supra; see also Bloom, supra. Based on a review of the evidence, the Board finds that service connection for diabetes mellitus, type II, is not warranted. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is considered competent to report observable symptoms. See Washington, 21 Vet. App. at 195 (holding that, "[a]s a layperson, an appellant is considered competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno, supra. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, the Veteran is not competent to provide medical conclusions as to whether his diabetes mellitus is a result of malnutrition during his military service where, as here, the issue concerns a complex medical question. See Buchanan, 451 F.3d at 1331-37; see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Crucially, there is no indication in the medical evidence of record that the Veteran was diagnosed with diabetes mellitus during his military service or for years thereafter. See 38 C.F.R. § 3.307(c); Traut, supra. The Board further observes that the contentions of the Veteran regarding chronic diabetes mellitus symptomatology dating from service are less probative than the findings of the August 2015 VA examiner who considered these lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. For the reasons noted above, this opinion is entitled to significant probative weight, and more weight than the lay assertions. Therefore, entitlement to service connection for diabetes mellitus, type II, is not warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus, type II. Accordingly, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, type II, is denied. REMAND The Veteran contends that he has hypertension and a heart disability, which are due to his active military service. He alternatively contends that his hypertension and heart disability are caused or aggravated by his service-connected psychiatric disability. See, e.g., the September 2013 Board hearing transcript. The Board observes that the Veteran has recently asserted that his heart disability is secondary to service-connected dengue fever. See the claim dated February 2016. For the reasons set forth below, the Board concludes that service connection is not warranted. STRs, including the Veteran's February 1946 separation examination, are absent any complaints of or treatment for hypertension and/or heart disability. VA treatment records confirm an ongoing diagnosis of hypertension. See the VA problem list dated May 2012. Private treatment records document a diagnosis of coronary artery disease status-post percutaneous transluminal coronary angioplasty (PTCA) in 1998; pacemaker implantations in 1998 and 2003 are also noted. See the private treatment records dated February 2011 & the March 2012 report from Dr. J.E. dated March 2012. In support of his claims, the Veteran submitted a March 2012 report of Independent Medical Examination. The reviewing physician, Dr. J.E., confirmed diagnoses of hypertension and coronary artery disease (CAD). Dr. J.E. opined that "[t]he stress chemicals and hormones that were released into [the Veteran's] body due to his war exposures and PTSD . . . caused elevated blood pressure and then chronic hypertension." Dr. J.E. continued, "[t]he hypertension caused hypertensive heart disease, which then caused heart failure, atrial fibrillation and the need for a cardiac pacemaker [in February 1998 and October 2003] . . . and CAD requiring stents to be placed in his coronary arteries." Dr. J.E. explained, "[m]y medical opinions are based upon my examination of the Veteran, review of medical and/or service records, my education training and experience and upon reasonable medical probability and reasonable medical certainty." He concluded, "[i]t is my medical opinion that the injuries, impairment, and disabilities set forth in my diagnosis and computation of service connected disability were, as likely as not, due to and a consequence of this Veteran's military service." Pursuant to the April 2014 Remand, the Veteran was afforded VA medical examinations and an opinion in August 2015. The August 2015 VA examiner selected the incorrect conclusion for the question of aggravation in completing the VA examination form; specifically, she indicated that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness." In addition, the opinion was provided by a nurse practitioner and the positive nexus opinion by a physician. While the remand instructions did not specify that the VA opinion should be by a physician, it requested an examination by a medical professional with appropriate expertise and the Board finds that the opinion should be by a physician. Accordingly, the claim should be remanded for another opinion by a physician. 1. The claims file should be reviewed by a physician to determine the nature and etiology of the claimed hypertension and heart disease. The physician should indicate whether it is at least as likely as not (50 percent probability) that the Veteran's diagnosed hypertension and congestive heart failure had their clinical onset in service or are otherwise related to service. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's hypertension and/or congestive heart failure were caused or aggravated permanently worsened beyond natural progression) by any service-connected disability, to include the service-connected PTSD and/or dengue fever. The physician should review the overall evidence and reconcile any opinion with the March 2012 private medical opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims, that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5 109B, 7112 (West Supp.. 2013). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs