Citation Nr: 1724933 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 13-24 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus type II, to include as secondary to service-connected primary sclerosing cholangitis with ulcerative colitis. ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to November 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a December 2008 decision, the Board, in part, denied service connection for diabetes mellitus type II. Since this Board decision, additional relevant service treatment records have been obtained that had not been associated with the claims file at the time of the December 2008 Board decision. If at any time after VA issues a decision on a claim, VA received or associates with the claims file relevant, official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2016). In view of the foregoing, the Board has framed the issue as noted on the title page. In February 2014, the Board remanded the matters of entitlement to service connection for diabetes mellitus type II and for removal of gallbladder (cholecystectomy) to the Agency of Original Jurisdiction (AOJ) for additional development. In an April 2016 rating decision, the RO granted service connection for gallbladder condition, representing a full grant of the matter previously on appeal. Accordingly, it is no longer before the Board. In June 2016, the Veteran submitted a notice of disagreement (NOD) with respect to the rating assigned for his gallbladder condition. VA's Veterans Appeals Control and Locator System (VACOLS), which is an automated database for tracking appeals, reflects that the AOJ has acknowledged the NOD, is continuing to develop the claims and will issue the Veteran a Statement of the Case (SOC) if the claim is not granted in full. As such, the situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where an NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in the present case. Therefore, this claim remains under the jurisdiction of the AOJ at this time. The matter of entitlement to service connection for diabetes mellitus type II has returned to the Board for the purpose of appellate disposition. FINDINGS OF FACT 1. Diabetes mellitus type II did not manifest in service or for many years thereafter and is not related to service. 2. Diabetes mellitus type II, is not caused or aggravated by service-connected primary sclerosing cholangitis with ulcerative colitis. CONCLUSION OF LAW Diabetes mellitus type II was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not secondary to service-connected primary sclerosing cholangitis with ulcerative colitis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a December 2010 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for service connection. This letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the December 2010 letter. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private treatment records. In addition, the Veteran's claims file was reviewed for opinion on the nature and etiology of the claimed diabetes mellitus in July 2013, with addendum opinion obtained in April 2016, pursuant to the Board's remand instructions. The examiner provided the requested opinions with fully-stated rationale and considered and addressed all pertinent medical evidence of record, and thus complied with the Board's remand instructions in this regard. Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim on appeal is thus ready to be considered on the merits. II. Legal Criteria and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, that list includes diabetes. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). On a VA Form 21-526, Application for Compensation, received in August 2005, the Veteran reported that his diabetes mellitus' onset was in November 2001. In his October 2010 claim, the Veteran reported that he was diagnosed with diabetes mellitus in 2001. He expressed that this disability is derived from his primary sclerosing cholangitis and chronic ulcerative colitis. The Veteran's service treatment records include no complaint, finding, or diagnosis with respect to the claimed diabetes mellitus type II, and reference only a family history of non-insulin dependent diabetes with his father. The Veteran was seen for evaluation treatment of abdominal pain/peptic ulcer disease in 1989, at which time a history of diabetes mellitus was denied. Following the Veteran's discharge from service, private treatment records dated in February 2002 and June 2003 reflect diagnosis of diabetes mellitus type II. Additionally, a January 2004 German Social Services disability decision, granting benefits for the Veteran's physical disabilities, lists a diagnosis of diabetes mellitus type II in the health information section. In July 2013, the Veteran's claims file was reviewed for an opinion regarding the etiology of the claimed diabetes mellitus type II and whether it is secondary to service-connected primary sclerosing cholangitis with ulcerative colitis. After review of the claims file, the examiner found that the claimed disability was less likely than not secondary to his service-connected primary sclerosing cholangitis with ulcerative colitis. In so finding, the examiner noted that the records described the Veteran as obese and he had a family history of diabetes. She determined that these were the most likely factors in the Veteran's development of diabetes. In April 2016, the Veteran's claims file was again reviewed for additional opinion regarding whether the claimed diabetes mellitus type II is secondary to service-connected primary sclerosing cholangitis with ulcerative colitis. The examiner noted review of pertinent medical literature, including online journals regarding ulcerative colitis and primary sclerosing cholangitis and cited to relevant portions of these texts. He noted that there was no medical evidence that ulcerative colitis or primary sclerosing colitis caused diabetes. The examiner further noted that he reviewed the opinion of the examiner in 2013, he noted that the Veteran's family history of obesity as well as his obesity were the most likely cause of the Veteran's diabetes. He opined that the Veteran's service-connected primary sclerosing colitis and ulcerative colitis did not cause or aggravate the Veteran's diabetes. In sum, there is no evidence that the Veteran's current diabetes mellitus type II had its onset in service or is otherwise related to service. The service treatment records are silent for related complaints or diagnoses. Here, the record does not document diagnosis of diabetes mellitus until 2002, and the Veteran has reported onset in 2001. The Board notes that the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, diabetes mellitus was not noted during service. In addition, characteristic manifestations sufficient to identify the disease entity were not noted during service or within one year of separation. 38 C.F.R. § 3.303. Moreover, none of the treatment records report indicates a relationship between the Veteran's current diabetes mellitus type II and service. To the extent that the Veteran's claim for service connection suggests that he believe the disability originated in service, the Veteran is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, his statements as to continuity are outweighed by the other evidence of record. Notably, the records contemporaneous to service reflecting no related abnormalities, as well as the post-service records showing onset of disability approximately 10 years following discharge, are a far more credible history. Thus, based upon the cumulative record, we conclude that diabetes mellitus type II first manifest years post service and that there is no nexus to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. In regard to the claim for service connection for service connection for diabetes mellitus type II on a secondary basis, none of the probative evidence supports a finding of a relationship between the Veteran's diabetes mellitus type II and his service connected primary sclerosing colitis and ulcerative colitis. The only pertinent medical opinion of record is that of the 2013 and 2016 VA examiners, who had a thorough review of all pertinent evidence and stated that it is less likely than not that the Veteran's diabetes mellitus was caused or aggravated by these service-connected disorders. The only credible, probative opinions of record weighs against the claim on a secondary basis, and the Veteran has not presented or identified any medical opinion or other competent evidence that, in fact, supports the Veteran's claim for service connection on a secondary basis. Finally, to the extent that the Veteran advances his own interpretation of his medical condition indicating that his diabetes mellitus is related to service or to service connected disability, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). In any event, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the evidence of record indicating no relationship between his current disability and service or service-connected disability, to include the specific, reasoned opinion of the physician who provided the 2016 VA opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for diabetes mellitus type II, to include on a secondary basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disability, is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs