Citation Nr: 1715210 Decision Date: 05/05/17 Archive Date: 05/11/17 DOCKET NO. 10-47 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a disability of the sweat glands, to include hyperhidrosis and hidradenitis suppurativa. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy form July 1992 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for the claimed conditions. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in Washington, D.C., in February 2016. A copy of the hearing transcript is of record. The matter was then remanded by the Board in March 2016 for additional development. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A disability of the sweat glands was not incurred in service. 2. Diabetes mellitus was not incurred in service. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the sweat glands have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the Veteran was provided with the relevant notice and information in a September 2009 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claims. Shinseki v. Sanders, 556 U.S. 396 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service personnel records and VA treatment records have been obtained and associated with the claims file. The service personnel records associated with the claims file contain the Veteran's enlistment and separation examination reports. However, the remainder of his service treatment records is not available for review. In January 2010, the Veteran was advised to submit any such records in his possession, and he was advised of the types of evidence that may otherwise support his claim. In March 2010, the RO made a formal finding that his service treatment records were not available, noting that a negative response for the records had been received from the Records Management Center (RMC). As part of its March 2016 remand, the Board instructed additional efforts be made to obtain the outstanding records. However, in a May 2016 memorandum, the RMC stated that the records could not be located despite multiple searches. In June 2016, the Veteran was again notified that his service treatment records were not available, and advised to submit any records in his possession or any other evidence which may support his claims. In light of this development, the Board finds that any further attempts to obtain the Veteran's service treatment records would be futile. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. Although recently obtained VA opinions did not address the Veteran's January 1996 separation examination, there is no prejudice to the Veteran as this examination contained no findings to support his contentions. VA's duty to assist with respect to obtaining relevant records and examinations has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran also had a hearing before the Board. The hearing was appropriately conducted as the presiding VLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the above development, the Board's prior remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2016). As noted above, most of the Veteran's service treatment records are not available for review. The Board is mindful that, in a case such as this, where service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). VA treatment records and examination reports reflect that the Veteran was diagnosed with hidradenitis suppurativa and diabetes mellitus in 2000 and 2002, respectively. However, after reviewing the claims file, the Board finds that service connection is not warranted for either condition, as the overall weight of the evidence is against a finding that either was incurred in service. First, the Veteran's June 1992 enlistment examination lists his weight as 186 pounds, while his January 1996 separation examination lists it as 242 pounds. His Form DD214 shows that he was honorably discharged for weight control failure. There is evidence linking the Veteran's claimed conditions to his weight. A July 2016 VA opinion stated that, in addition to genetics and dietary intake, increased body-mass index (BMI) was a risk factor for diabetes. This examiner also noted that the Veteran's diagnosed hidradenitis suppurativa was associated with obesity, as well as other factors such as metabolic syndrome, diabetes, a Western diet, and hyperlipidemia. However, during the pendency of the Veteran's claim, VA's Office of General Counsel issued an opinion which, in part, stated that obesity does not qualify as an "in-service event" for the purposes of service connection. Specifically, obesity is not a discrete incident or occurrence associated with the places, types, and circumstances of service. Rather, it occurred over time and was based on various external and internal factors and processes, many of which cannot be considered discrete events. See VAOPGCPREC 1-2017, citing Scientific Decision Making, Policy Decisions, and the Obesity Pandemic, 88 MAYO CLINIC PROCEEDINGS at 596. Therefore, while the claimed conditions are associated with increased BMI and obesity, the Veteran's documented weight gain in service and discharge for weight control failure, alone, do not establish that the claimed conditions were incurred in service. Second, the Veteran testified at his hearing that he was treated for his sweat condition and diabetes during service. Specifically, he reported that he had a "physical panel" done in service which noted elevated blood sugar around December 1993. He also testified that he started experiencing excessive sweating around July 1993, which resulted in associated skin conditions. He stated that both conditions were treated with weight control measures, and his sweating was also treated with antibiotics. As noted above, most of the Veteran's service treatment records are not available for review. However, his January 1996 separation examination recorded no abnormalities. The accompanying medical history report shows the Veteran indicated he was in "good health," and denied a history of sugar in the urine, skin diseases, or cysts or other growths. He did report a history of headaches. The January 1996 separation examination, generated at the time of his discharge from service, is more probative than his recent statements in determining the conditions and symptoms present during his period of service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report regarding the cause of a fall than subsequent lay statements asserting different etiology). In addition, the fact that the Veteran reported a history of headaches at the time of his separation examination, without reporting treatment or symptoms relating to either diabetes or a sweat gland condition, strongly suggests that these conditions were not present at the time of his separation. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). For these reasons, the overall weight of the evidence is against a finding that diabetes or a sweat gland condition had their onset, or were otherwise incurred, during active service, and element (2) of service connection has not been met. To the extent that the Veteran submitted a December 2010 opinion from a VA nurse linking hidradenitis to service, this opinion is based on the Veteran's history of symptoms in service, which has not been borne out by the record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual predicate is of no probative value). ORDER Service connection for a disability of the sweat glands is denied. Service connection for diabetes mellitus is denied. REMAND With respect to the Veteran's claim for hypertension, additional development is necessary. Specifically, an August 2015 VA opinion stated that an opinion as to whether current hypertension was related to service would be based on pure speculation because the Veteran's service treatment records were not available. A July 2016 VA opinion stated that hypertension was not related to service, as there was no documentation to support the Veteran's history that his blood pressure "may have been high" prior to 2001. The Veteran underwent an enlistment examination in June 1992, which recorded blood pressure of 130/80. However, during his January 1996 separation examination, blood pressure was recorded as 142/92. A separate notation indicated that his three-day blood pressure average was 145/81. For VA rating purposes, hypertension means that diastolic blood pressure is predominantly 90mm or greater, and must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Therefore, these findings in service do not conform to a diagnosis of hypertension, but do indicate elevated blood pressure consistent with the Veteran's report. As neither VA opinion addressed this evidence, a supplemental opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the VA examiner who provided the July 2016 VA hypertension and opinion. The examiner should again review the file and then address the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's current hypertension is etiologically related to service? In answering this question, the examiner must specifically address the June 1992 enlistment examination, which recorded blood pressure of 130/80, and the January 1996 separation examination, which recorded blood pressure of 140/92, with a three-day average of 145/81. The examiner must provide a complete explanation for all opinions, citing to the medical evidence of record when necessary to support the conclusion reached. If the examiner is unable to render the requested opinion without resorting to speculation, she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge, or another reason. If the July 2016 VA examiner is not available, forward the claims file to another appropriate examiner, who must comply with the above instructions. If any examiner determines that a new examination is necessary to provide the requested opinion, one must be scheduled. 2. Following completion of the above, readjudicate the Veteran's claim for service connection for hypertension. If the claim is not granted, send the Veteran and his representative a supplemental statement of the case (SSOC) and allow them an appropriate amount of time to respond before returning the matter to the Board for further appellate consideration. The appellant 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). 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs