Citation Nr: 1637574	
Decision Date: 09/23/16    Archive Date: 09/30/16

DOCKET NO.  07-23 938	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Counsel

INTRODUCTION

The Veteran had active military service from November 1973 to December 1973.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the claim of service connection for diabetes mellitus, including as due to an acquired psychiatric disability other than PTSD. 

Although the Veteran did not timely disagree with this rating decision, he submitted additional evidence relevant to all of these claims in December 2005, i.e., within one year of the March 2005 rating decision.  The December 2005 submission by the Veteran renders the March 2005 decision non-final for VA purposes under 38 C.F.R. § 3.156(b) (2015).  See Buie v Shinseki, 24 Vet. App. 242, 251-52   (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)).  The claim was readjudicated in a June 2006 rating decision.  This appeal followed.  Having reviewed the record evidence, the Board finds that the claim on appeal is characterized more appropriately as stated on the title page of this decision.

A Travel Board hearing was held at the RO in February 2011 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In November 2010, October 2013, January 2015, and July 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  In the October 2013 remand, the Board also reopened the previously denied claim of entitlement to service connection for diabetes mellitus.

This appeal is being processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems.

In its prior remands, the Board noted that the issues of entitlement to service connection for a disability caused by steroid injections, a prostate disability, and for a right knee disability had been raised by the record but had not been adjudicated by the AOJ.  All of these claims were referred to the AOJ for appropriate action.  To date, however, the AOJ has not taken any action on these claims even though they have been referred back to the AOJ by the Board.  It is not clear to the Board why the AOJ has failed to adjudicate these claims for more than four years.  The fact remains that the Board does not have jurisdiction over any of the claims previously referred to the AOJ.  Therefore, the Board refers these claims again to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  The AOJ is directed to take action on these claims without further unreasonable or inexplicable delay as it has been more than four years since they initially were referred back by the Board to the AOJ for appropriate action.

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

The Veteran's diabetes mellitus was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service (to include a service-connected disability), and is not shown to have manifested within one year from the date of his separation from the military.


CONCLUSION OF LAW

Service connection for diabetes mellitus is denied.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Letters from the AOJ dated in June 2004, January 2006, and April 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  A March 2006 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The April 2006 letter informed the Veteran of the requirements for establish service connection on a secondary basis.  These letters were provided prior to the initial AOJ adjudication of his claim in the June 2006 rating decision.  Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs, personnel records, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained.  In VA Form 21-4142s dated in August 2015, the Veteran requested that the AOJ obtain his VA treatment records from the Fayetteville, Arkansas, dated from December 1973 to February 1974, and obtain his private psychiatric treatment records from the Sparks Medical Center and the Holt-Krock Clinic.  The AOJ contacted the VA Medical Center (VAMC) in Fayetteville, and was informed in a February 2016 statement and a March 2016 Report of Contact that these records were unavailable.  The AOJ contacted the Sparks Medical Center, and was informed in an August 2015 statement that the doctor had retired and these records had been destroyed.  In an August 2015 Report of Contact, the AOJ was informed that the records from the Holt-Krock Clinic could not be obtained.  Thus, the Board does not have notice of any additional relevant evidence that is available but has not been obtained.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran participated in a VA examination in March 2015, the results of which have been included in the claims file for review.  The VA examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale.  A VA addendum medical opinion was obtained in August 2015 by the March 2015 VA examiner.  The addendum medical opinion was provided after another review of the claims file by the VA examiner.  Therefore, the Board finds that the VA examination and medical opinion are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In March 2016, the United States Court of Appeals for the Federal Circuit (Federal Circuit) ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary.  

The Board is also satisfied as to substantial compliance with its November 2010, October 2013, January 2015, and July 2015 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The remands included scheduling the Veteran for a VA examination and VA addendum medical opinion, which were provided in March 2015 and August 2015, respectively.  The remands also included obtaining the Veteran's recent VA treatment and SSA records, which were obtained and associated with the Veteran's claims file.  The remands also directed the AOJ to check and make sure that the Veteran's STRs of record were a complete copy.  This action was accomplished.  Finally, the remands included readjudicating the claim, which was accomplished in the April 2012, April 2014, April 2015, and March 2016 Supplemental Statements of the Case (SSOCs).  Thus, the Board finds that there has been substantial compliance with its remand directives.  Id.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Analysis

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  

Service connection for certain chronic diseases, including diabetes mellitus, will be presumed if they manifest to a compensable degree within one year following the active military service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R.  § 3.303(d).   

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability.  Id.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102 (2015).  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

Initially, the Board notes that service connection on a secondary basis is not warranted as the Veteran is not currently service-connected for any disabilities.  Thus, his diabetes mellitus cannot be granted based on being secondary to a service-connected disability, as the Veteran does not currently have any service-connected disabilities.  38 C.F.R. § 3.310.

Regarding direct service connection, treatment records show that the Veteran was diagnosed with Type II diabetes mellitus as early as 2004.  Thus, the Veteran has satisfied the first element of service connection.

As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease.  Here, the Veteran's STRs are silent for documentation of the disorder.  The records reveal no complaints or treatment related to the Veteran's diabetes mellitus.  The Board notes the Veteran's contention that he was given steroid injections during his military service to assist with weight gain during service.  The Veteran testified at his February 2010 Board hearing that, after being given "steroid shots" in basic training, he gained an excessive amount of weight during active service.  See Board hearing transcript dated February 11, 2010, at pp. 4.  He also testified that he had tried a variety of diets to control his weight.  Id., at pp. 8.  However, there is no evidence of steroid injections in the Veteran's STRs.  

The Veteran submitted medical treatise information in January 2011 and in October 2013 concerning the side effects of steroid injections in support of his claim.  The Board notes in this regard that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998).  The treatise evidence submitted by the Veteran in this case was not accompanied by the opinion of any medical expert linking his claimed disability to active service.  Thus, the treatise evidence submitted by the Veteran is insufficient to establish the medical nexus opinion required for causation.  See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

The first post-service relevant diagnosis of diabetes mellitus was in a September 2003 VAMC treatment record.  Again, the Veteran's active duty ended in 1973.  This lengthy period without treatment for the disorder weighs heavily against the claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). 

As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury.  Here, the only medical nexus opinions of record are negative.  

Specifically, on VA examination in March 2015, following a review of the Veteran's claims file and a physical examination of the Veteran, the VA examiner determined that it was less likely than not that the Veteran's diabetes mellitus was due to, cause by, or incurred in his military service.  The examiner reasoned that it was not likely that steroid shots were given as reported by the Veteran as steroid shots (corticosteroids) are contraindicated at the time of immunization because they decrease the immune system.  Additionally, the bulk of medical literature does not report the use of anabolic steroid or corticosteroid use by the military for the purpose of gaining weight.  The examiner stated that most side effects reported from the use of steroids are due to long-term use of oral steroids and not from one injection as suggested by the Veteran.  While weight gain is a reported side effect of long-term use of oral corticosteroids, the bulk of medical literature does not report weight gain other than water weight gain for a single dose injection of corticosteroids.  The examiner also noted that the Veteran's STRs were silent for any steroid injection or oral corticosteroids.  Therefore, the examiner opined that it was not common practice in 1973 for the U.S. Department of Defense to give service members steroid injections during their military service to assist with weight gain.  The examiner stated that the Veteran had a slow gradual weight gain over the years.  The Veteran's claim of receiving a steroid shot in the military and then gaining all of his weight as a result was not well-founded in the medical evidence.  The examiner stated that the Veteran's known risk factors of inactivity, hypertension medications, and depression are common risk factors for weight gain, and obesity is a risk factor for diabetes mellitus.  The examiner noted that the Veteran's activity levels were restricted before and after his active military service due to pre-existing conditions unrelated to the diabetes mellitus.  The examiner further reasoned that the Veteran was diagnosed with diabetes mellitus in 2004 (40 years after discharge from military).  The examiner stated that the Veteran was not a reliable historian.  As support for this opinion, the examiner also cited to the medical literature.  

The Veteran was afforded a VA addendum medical opinion in August 2015 by the March 2015 VA examiner.  Following another review of the Veteran's claims file, the VA examiner found that the Veteran's diabetes mellitus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner reasoned that the Veteran only served 33 days on active duty and did not serve in the Republic of Vietnam (Vietnam) during the Vietnam War.  The Veteran was diagnosed with diabetes mellitus in 2003.  The examiner then reiterated his opinion as provided in the March 2015 examination report.

The VA examiner clearly reviewed the STRs, the medical literature, the lay statements, and other evidence in the Veteran's claims folder.  The examiner provided medical opinions that are supported by and consistent with the evidence of record.  The examiner gave an alternative theory to address the etiology of the current diabetes mellitus - namely, the Veteran's depression, hypertension medications, and inactivity caused weight gain after service, which then caused the diabetes mellitus.  There is no positive evidence to the contrary of these medical opinions in the claims file.  The VA and private treatment records do not provide contrary evidence.  For all of these reasons, service connection for diabetes mellitus is not warranted.

The Veteran and his family members report continuous symptomatology since the Veteran's active military service.  However, the Veteran's contentions are not supported by the medical evidence of record.  As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from September 2003, almost thirty years after the Veteran's military separation in December 1973.  Further, the STRs do not show that the Veteran developed diabetes mellitus during his active military service.  The STRs do not document any complaints of or treatment for diabetes mellitus or its associated symptoms.  When the Veteran was first treated post-service in 2003, did not indicate that his diabetes mellitus had been present since his active military service.  The evidence of record does not document continuity of symptomatology during and since the Veteran's active military service.  Thus, the Board finds that the medical evidence does not establish a "chronic disorder."  38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331.  The Veteran's service connection claim cannot be granted on this theory of entitlement.

Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for diabetes mellitus.  As stated above, the earliest post-service medical treatment records are dated from 2003, and the Veteran was separated from the active duty in 1973.  No diagnosis of diabetes mellitus was made within one year of the Veteran's military discharge.  Thus, the presumption for service connection for chronic diseases does not apply.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307(a), 3.309(a).

In reaching this decision, the Board has considered the lay statements of record in support of the claim, in addition to the photographs and Internet articles submitted by the Veteran.  The Veteran submitted several lay statements in 2016 from himself, his spouse, his mother, his sister, and his sisters-in-law.  The Board acknowledges that the Veteran and his family members are competent, even as a layperson, to attest to factual matters of which they have first-hand knowledge, e.g., being told by a doctor that the Veteran was borderline diabetic shortly after service and/or the Veteran being placed on a special diet shortly after service.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when:  (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  The relevance of lay evidence is not limited to the third situation, but extends to the first two as well.  Whether lay evidence is competent and sufficient in a particular case is a fact issue.  Id.

Although the Veteran and his family members are competent to report the statements they heard the Veteran's doctor make and/or special diets they observed the Veteran undertaking shortly after service, the Board must still weigh these lay statements against the medical evidence of record.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  In making this credibility determination, the Board does not find the lay statements concerning the etiology of the Veteran's diabetes mellitus to be credible, since his STRs make no reference to diabetes mellitus, and since the Veteran was not diagnosed with diabetes mellitus until 2003, almost thirty years after his separation from the active duty.  See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

It is important to point out that the Board does not find that the lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence.  See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  Rather, the lay statements are found to be incredible because they are inconsistent with the evidence of record, which fails to show a diabetes mellitus diagnosis during or shortly after the Veteran's active military service and which contains only negative nexus medical opinions.

For the reasons set forth above, the Board finds that the lay statements arguing that the Veteran's symptoms have been present since his active military service are not credible.  Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required.  All other evidence of record, aside from the lay statements in support of this current claim, is unfavorable to the claim for service connection for diabetes mellitus.  

The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim of entitlement to service connection for diabetes mellitus is not warranted.

The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached.


ORDER

Service connection for diabetes mellitus is denied.



____________________________________________
APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs