Citation Nr: 1751630 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-33 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran had active duty from September 1970 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in Phoenix, Arizona held in November 2016. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. Evidence associated with the claims file since the July 2005 RO denial is not cumulative of evidence previously considered, or, if new does by itself relates to an unestablished fact necessary to substantiate a claim for service connection for diabetes mellitus. 2. Diabetes mellitus was not manifest in service and is not attributable to service. Diabetes mellitus was not manifest within one year of separation from service. CONCLUSION OF LAW 1. As evidence received since the RO's rating decision which became final on July 27, 2006 is new and material, the criteria for reopening the claim for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. Diabetes mellitus was not incurred in or aggravated by service and diabetes mellitus may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS II. Duties to Notify and Assist 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) (2017). VA's duty to notify was satisfied by a December 2009 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's claim decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's diabetes mellitus. See 38 U.S.C.A. § 5102(a)(1) (West 2014); 38 C.F.R. § 3.159(c) (2017). Service treatment records, post-service VA treatment records, private treatment records and lay statements have been associated with the electronic claims file. VA must provide a medical examination or obtain a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5102A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017). The Veteran was afforded VA examination in November 1993 and March 2005. The Board finds that an additional VA examination or opinion is not necessary to decide the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has not identified any additional relevant evidence, nor does the record otherwise indicate that there is outstanding relevant evidence to obtain. Thus, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to his claim is required for VA to comply with its duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Scott, supra. New and Material Evidence To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C.A. § 5108 (West 2014). "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a) (2017). "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) (2017) creates a low threshold for finding new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). As noted above, the RO denied service connection for diabetes mellitus in July 2005; this denial became final on July 27, 2006. Since that time the Veteran has submitted a letter from a physician in November 2016, which in pertinent part, opines as to the Veteran's treatment for diabetes mellitus dating from 1993, while he was in active service. In addition, the Veteran and his Spouse provided testimony at the November 2016 Travel Board hearing which addressed in-service impressions of diabetes mellitus. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. The Board finds the added evidence to be new and material. Therefore, the Board finds that new and material evidence has been received, and to that extent only, reopens the claim for service connection for diabetes mellitus. Service Connection for Diabetes Mellitus I. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for diabetes mellitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). For a showing of chronic disease in service, there is required a combination sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b) (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). II. Evidence The Veteran contends that he was diagnosed and treated for diabetes mellitus while in active service. In this matter, the evidence consists of service treatment records (STRs), VA examination reports, private medical reports, lay statements, and hearing testimony. A review of the Reports of Medical Examination in Veteran's STRs reveals that that the Veteran reported that his endocrine system was normal in May 1975, January 1978, December 1978, February 1982, September 1986, and March 1991. Moreover, a review of Reports of Medical History shows that the Veteran did not have sugar or albumin in his urine in May 1975, January 1977 or December 1992. A review of the Veteran's dental STRs reveals that the Veteran reported that he did not have diabetes mellitus in November 1991 and November 1992. In May 1993, the Veteran participated in weight management therapy. A treatment record shows that a special diet was advised, designed to lower caloric intake. Another May 1993 entry in his chronological record of medical care indicates that he sought treatment at a nutritional clinic; accompanying laboratory results show elevated triglycerides. Findings from clinical laboratory reports from September 1986 to February 1993 include glucose levels. In a periodic examination note of March 1991, an examiner disclosed that the Veteran's endocrine system was normal. Otherwise, the Veteran's STRs are silent as to notations, evaluations or treatment for diabetes mellitus. In November 1993, the Veteran was afforded an initial VA general medical examination. The physician considered the Veteran's subjective complaints and provided impressions. No reference was made to diabetes mellitus. In September 2004, the Veteran's representative submitted a statement, via VA FORM 21-4138. In pertinent part, he wrote that he was submitting a service medical record from July 1998 which stated that the Veteran is diabetic. He also contended that the findings as to elevated triglycerides "highlight" that the Veteran was diagnosed with diabetes mellitus while in service. Likewise, he contended that both the Veteran's restricted diet and his exercise regime are evidence of an in-service diagnosis of diabetes mellitus. In December 2004, the Veteran's representative submitted a statement, via VA FORM 21-4138. Here, the representative stated that the Veteran is claiming that his diabetes mellitus is a direct disability not caused by service in Vietnam. In March 2005, the Veteran was afforded a VA diabetes mellitus examination. The examiner reviewed the Veteran's claims file and considered the Veteran's lay accounts of his medical history. The examiner opined that the Veteran currently has diabetes mellitus. In response to whether the Veteran had diabetes mellitus while on active duty, the examiner reported that there is no evidence to support a finding to this effect. The examiner noted that the Veteran reported that he had been diagnosed; however, according to the examiner, a review of the record indicated that the only in-service mention of diabetes occurred in the Veteran's family history-both mother and father had been diagnosed. Moreover, according to the examiner, laboratory results from 1991 to 1993 were all normal as to glucose values. The examiner took note of elevated triglycerides, opining that elevation frequently occurred with diabetes but also occurred with other diseases. As to the Veteran's weight management therapy, the examiner opined that the Veteran was advised to lose weight because of hypertension. The examiner concluded his examination by stating that he found no references to diabetes mellitus and therefore did not feel without further proof that the Veteran's claim for service connection for diabetes mellitus was a valid claim. A review of the treatment records submitted by Dr. C. D., the Veteran's private physician, reveals that she treated the Veteran from March 2008 to March 2010 and from April 2014 to June 2015. Dr. C. D.'s records are replete with assessments of diabetes mellitus, type II. Dr. C. D.'s treatment records are silent as to the onset of the Veteran's diabetes mellitus. In January 2010, the Veteran submitted a letter. He stated that he researched his "condition" in the Harvard Medical Guide and found that his blood tests and increase in triglyceride levels were abnormal. He contended that his blood sugar should be below 80. Specifically, the Veteran mentioned that page 841 of the Guide mentioned that weight gain, blurry vision, and elevated triglycerides are all symptoms of elevated blood glucose. The Veteran's letter is silent as to diagnostic testing or treatment of diabetes mellitus. In his June 2011 Notice of Disagreement, the Veteran wrote that his diabetes mellitus was "determined" in 1989-1990. He referred to his blood test results and "Doctor's Diet Control" to underscore his contention. At the November 2016 Travel Board hearing, the Veteran's submitted a letter from Dr. C. D. into the record of evidence, as noted above. Dr. C. D. wrote that the Veteran had been placed on diabetic medication back in 1993 due to elevated blood sugar levels and the diagnosis of diabetes mellitus, type II. Moreover, she stated that the Veteran had been on diabetic medications since that time. Dr. C. D.'s letter is silent as to whether she or another physician provided the diagnostic impression. Furthermore, the letter is silent as to where the diagnosis impression was made diagnostic testing, and what diabetic medication had been prescribed. At the November 2016 Travel Board hearing, the Veteran stated that he was put on medication for diabetes in 1993 by Dr. B., a physician from whom, according to the Veteran, Dr. C. D. had acquired her medical practice. He testified that his vision was blurred, "triglycerides [...] kept going up and down [...] and [his] glucose was high, so he was referred to a dietician rather than having a diabetes "check" performed. See November 2016 Travel Board hearing transcript, pp. 9-11. The undersigned VLJ agreed to hold the Veteran's file open for 60 days, specifically requesting that the Veteran or his Representative gather information from the pharmacy that prescribed the 1993 diabetes medication and, if available, information from the Veteran's medical insurance company concerning the 1993 medication. II. Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for the Veteran's diabetes mellitus is not warranted. The evidence of record indicates that the Veteran did not have diabetes mellitus during service. Furthermore, the Veteran's STRs are silent as to diabetes treatment, medication, or diagnostic testing. The evidence of record demonstrates that the Veteran's triglyceride levels fluctuated during service and that the Veteran received weight management to lower caloric intact. In November 1993, three months after the Veteran's service, the Veteran did not mention diabetes mellitus at his VA general medical examination. The earliest mention of diabetes mellitus per se occurred in 2004, 9 years after active service. By the Veteran's own account, his in-service manifestations of diabetes mellitus resulted in a referral to a dietician rather than a referral for medical treatment and follow-up testing. The Veteran also reported that he had been taking diabetes medication since 1993; however, the record of evidence remains silent as to whether any medication has been prescribed. Clearly, the Veteran is competent to report the onset of blurry vision and weight change; however, STRs were silent as to the present diagnosis of diabetes mellitus. As mentioned above, at the November 1993 VA examination, the Veteran voiced no concerns about diabetes mellitus, or-for that matter-concerns indicative of any symptom attributable to diabetes mellitus. Indeed, this evidence is inconsistent with a post-service report of on-going diabetes symptoms. The Board assigns minimal probative weight to Dr. C. D.'s November 2016 letter, noting that the Veteran testified that she was not his treating physician in 1993; not to mention that Dr. D. C.'s letter is silent as to any diagnostic testing, and what specific diabetic medication had been prescribed. In addition, when the Veteran was seen in March 2005, the examiner opined that the Veteran's laboratory results from 1991 to 1993 were all normal as to glucose values. The Board finds this evidence to be both credible and probative. The evidence establishes that diabetes mellitus was not noted during service or within one year of separation. Rather, an examination in March 1991 disclosed that the Veteran's endocrine system was normal. Also, in December 1992 the Veteran denied a history of sugar in his urine. He did not have characteristic manifestations sufficient to identify the disease process and an assertion of continuity is inconsistent with normal examinations. Despite the Veteran's convictions, there is no credible proof of diabetes mellitus during service or within one year of separation. The statement from Dr. C. D. that the Veteran had been placed on medication in 1993 is unsupported by the credible evidence and again fails to establish findings to support the diagnosis within the meaning of 38 C.F.R. § 3.303(b) (2017) or Walker. The statement from Dr. C. D. is not credible. . The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5.107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received, and to this extent only, the claim for service connection for diabetes mellitus is reopened. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs