Citation Nr: 1752001 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-05 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for pancreatitis, to include as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes (type I), to include as secondary to pancreatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1967 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2013, March 2016, and March 2017, the Board remanded the Veteran's claims for further development. A more detailed procedural history is set forth in the most recent March 2017 Board decision. These matters are now returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran's pancreatitis is not shown to be causally or etiologically related to any disease, injury, or incident in service, including presumed herbicide exposure. 2. The Veteran's pancreatitis is not shown to be proximately due to or aggravated by service-connected disability. 3. The Veteran's diabetes is not shown to be causally or etiologically related to any disease, injury, or incident in service, including presumed herbicide exposure. 4. The Veteran's diabetes is not shown to be proximately due to or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for pancreatitis are not met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for diabetes are not met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance With regard to the Veteran's claims, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2017). An April 2009 notice letter fully satisfied VA's duty to notify the Veteran. See 38 U.S.C.A. § 5103(a). The Board also finds that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records are all in the claims file. The Veteran has not identified any outstanding records for VA to obtain. VA's duty to assist generally includes the duty to provide a VA examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA examination relating to his claims in November 2013, and a May 2014 VA medical opinion was obtained. The Board finds that the VA examination reports are adequate upon which to base a decision on the Veteran's claims. The VA examiners reviewed the file, took a history from the Veteran, examined him, and provided adequate rationales for their conclusions. The Veteran failed to appear for the most recently scheduled VA examination relating to his recent contention that his pancreatitis is secondary to alcohol abuse due to his service-connected PTSD. When a Veteran fails to appear to a scheduled VA examination, without good cause, in connection with an original compensation claim, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655(a) and (b) (2017). The Veteran has not offered any good cause for the failure to appear. Therefore, the Board finds that the duty to assist in this regard has been satisfied. As noted in the introduction, the Veteran's claims were previously remanded in August 2013, March 2016, and March 2017. The Board finds that there was substantial compliance with all of the Board's remand directives. The August 2013 Board remand directed that all of the Veteran's more recent VA treatment records be associated with the claims file, that the Veteran be asked to identify any other outstanding private treatment records, that his private treatment records from Scott and White Hospital be obtained, and that he be provided with a VA examination relating to his pancreatitis claim. Subsequently, the Veteran's more recent VA treatment records were associated with the claims file (see LCM-VVA), the Appeals Management Center (AMC) sent a September 2013 request to the Veteran that he identify any outstanding private treatment records, and the Veteran was afforded the November 2013 VA examination. The March 2016 Board remand again directed that the Scott and White Hospital records be obtained. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, in June 2016, the AMC requested the records from Scott and White Hospital, but no records were ever received. In September 2017, the AMC telephoned the Veteran regarding the records, and he explained that he had no private treatment, and that Scott and White Hospital simply referred him to the VA medical center for treatment. The Board adds that the VA treatment records in the claims file actually do include a copied (transposed) June 2000 treatment record from Scott and White Hospital that does show that the Veteran was referred to the VA medical center for treatment for pancreatitis. Then, in March 2017, the Board remanded the Veteran's claims so that a VA medical opinion could be obtained to address whether the Veteran's alcohol abuse was secondary to his service-connected PTSD. As noted above, the Veteran failed to appear for the scheduled May 2017 VA contract examination. In fact, the first May 2017 no-show was rescheduled, and then the Veteran failed to appear to the rescheduled May 2017 examination. Copies of telephone notice of the examination, and written notice, are in the claims file. Therefore, the Board finds that there was substantial compliance with all of the Board's remand directives. The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, for the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis The Veteran served as a U.S. Navy engineman including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection, the evidence generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain listed "chronic" diseases in 38 C.F.R. § 3.309(a), including arthritis, that manifests to a compensable degree within a prescribed time period, which period is within one year of discharge from active duty in the case of arthritis. 38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). A veteran may also establish service connection for a "chronic" listed in 38 C.F.R. § 3.309(a) by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir.2013). A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." 38 C.F.R. § 3.310(a) (2016). "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, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence." 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). A. Pancreatitis The Veteran served on active duty in the Navy from November 1967 to February 1971. He contends that his pancreatitis (status post pancreatectomy) is due to Agent Orange exposure in Vietnam. See Report of Contact, April 2009. In a May 2010 substantive appeal and during an August 2011 RO hearing, the Veteran reported that the VA surgeon who performed the removal of his pancreas told him that Agent Orange was the likely cause of his pancreatic disease. However, he reported that the surgeon was no longer at the VA facility and that he was not aware of his specific location or address. In the alternative, he asserts that his pancreatitis is secondary to his service-connected PTSD. See Informal hearing presentation, January 2017. As an initial matter, the Board acknowledges that the Veteran's personnel records show that he served aboard the U.S.S. Askari from December 1968 to February 1971. His personnel records, as well as a December 1968 letter from the ship's commander in the claims file, indicate that the ship served in the inland waterways of Vietnam, including inland riverways. See, e.g., Personnel Records at p.3, 7, 16, and 25. Also, the U.S.S. Askari is among those ships listed in "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" as having operated "primarily or exclusively" in Vietnam's inland waterways. See M21-1, IV.ii.1.H.2.f. (list available online at https://www.benefits.va.gov/compensation/docs/shiplist.docx). Therefore, exposure to herbicide agents in service is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2017). Pancreatitis is not, however, among those disease listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed based on exposure to herbicide agents in service. The Veteran is not, however, precluded from proving entitlement to service connection on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran's service treatment records are silent as to any treatment for prostate problems. His February 1971 separation examination report shows examination of the abdomen and endocrine system was normal. See STRs at p.23 of 24. Post-service, a June 2000 discharge summary from Scott and White Hospital (copied into CAPRI) shows the Veteran, with a past history of alcohol abuse and acute pancreatitis for four years, presented to the emergency room with increased right-sided abdominal pain, present on and off since December 1999. See VA treatment record, received November 2009 at p.74 of 76. Elevated lipase and amylase were noted, and a 20-pound weight loss since the beginning of the year with increased abdominal pain. A CT scan revealed acute and chronic pancreatitis. It was noted that his glucose on admission was normal. It was noted that "his alcohol use was addressed." It was also noted that it was felt that an ERCP could be performed at the VA medical center, which appointment was scheduled in July 2000. Nine days later, a June 2000 VA treatment record shows the Veteran presented to the emergency room with complaints of difficulty swallowing and severe reflux symptoms for one week. See VA treatment records, received December 2000. A history of acute pancreatitis five years prior was noted, as well as other minor bouts of pancreatitis for which he did not seek medical attention. His records from Scott and White Hospital were reviewed, including the CT scan results showing pancreatitis. It was noted that the Veteran was an alcoholic, and that he stopped drinking in January 2000. A September 2000 VA operative report shows the pre-operative diagnoses were chronic pancreatitis, a huge pancreatic pseudocyst with one extension into the mediastinum posteriorly, a history of alcohol abuse, and a history of malnutrition. See VA treatment records, received December 2000 at p.21 of 28. A total pancreatectomy with splenectomy, antrectomy, and duodenectomy was performed. The attending physicians did not mention any association of the disease with herbicide exposure. The Veteran was afforded a VA examination in November 2013, and a May 2014 VA medical opinion was obtained. The November 2013 VA examination report shows the Veteran gave a history of herbicide exposure while in Vietnam, and a history of alcohol use. He reported that his abdominal pain started in the 1970s on and off, and that he was admitted around 1996 to a hospital with acute pancreatitis. The examiner noted his subsequent history of a pancreatectomy in 2000, and then becoming a type 1 diabetic. The examiner opined that it is less likely than not that the Veteran's pancreatitis is related to his active service. The examiner acknowledged the herbicide exposure but reasoned that the frequent alcohol intake since 1970 was the etiology of the chronic pancreatitis. In May 2014, a VA physician provided a very detailed summary of the medical history and the Veteran's lay reports. The physician cited multiple sources of medical research relevant to the etiology of pancreatic disease. His opinion was that it is less likely than not that the Veteran's pancreatitis is related to his active service, including his herbicide exposure in Vietnam. The examiner reasoned, citing the specific medical literature, that there is no scientifically based medical literature supporting an association of exposure to herbicide and gastrointestinal and digestive disease, to include pancreatitis. The examiner further reasoned, citing medical literature, that the cause of pancreatitis is most often alcohol. The Veteran's July 2014 VA examination relating to his service-connected PTSD notes a history of alcohol abuse. Having considered all of the evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's pancreatitis, status post pancreatectomy, is related to his active service, including his conceded herbicide exposure. The Board finds the opinions of the November 2013 and May 2014 VA examiners to be the most probative evidence of record with regard to the etiology of the Veteran's pancreatitis, which opinions are uncontroverted and are supported by adequate rationale. Both examiners opined the Veteran's pancreatitis is due to alcohol use, which opinions are clearly supported by the Veteran's treatment records. There is simply no medical evidence tending to link the Veteran's pancreatitis to his active service or herbicide exposure. Regarding his lay opinion that his pancreatitis is in fact due to herbicide exposure, the Board ultimately places more probative weight on the opinion of the November 2013 and May 2014 VA examiners. The examiners' opinions are supported by detailed rationales, particularly the more lengthy May 2014 opinion. The Board also finds the examiners' opinions to be more probative based on the VA examiners' medical education and experience. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). Regarding the Veteran's assertion that his pancreatitis is secondary to alcohol use as due to his service-connected PTSD, as explained in the VCAA section above, the Veteran failed to appear to the May 2017 VA examination scheduled to address this theory of entitlement. When a Veteran fails to appear to a scheduled VA examination, without good cause, in connection with an original compensation claim, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655(a) and (b). The Board has reviewed all of the medical evidence of record, including his October 2009 and July 2014 VA examinations (PTSD), but none of the medical evidence of record, however, shows that the Veteran's history of alcohol abuse was due to his service-connected PTSD. While the Board acknowledges that the Veteran is competent to report when he began drinking alcohol, the Board finds that he is not shown to be competent to provide an etiological opinion regarding his substance abuse. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran's pancreatitis is secondary to alcohol use due to PTSD. See 38 C.F.R. § 3.310 (2016). Therefore, in summary, the Board concludes that the preponderance is against finding that the Veteran's pancreatitis is related to his active service, or secondary to service-connected disability, and service connection is not warranted and may not be presumed; the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). B. Diabetes The Veteran claims that he has diabetes due to Agent Orange exposure. In the alternative, he asserts that his diabetes is secondary to his pancreatitis, status post pancreatectomy. The Veteran's service treatment records are silent as to any treatment for diabetes or symptoms of diabetes. The Veteran's February 1971 separation examination report shows examination of his endocrine system was negative, and that a urinalysis was negative for sugar. See STRs at p.23 of 24. Post-service, as noted above, in September 2000, the Veteran underwent a pancreatectomy. He was not discharged from the VA medical center until December 2000. An October 2000 VA treatment record shows the Veteran's was placed on a sliding scale of insulin. See VA treatment records, received November 2009 at p.67 of 76. Likewise, his December 2000 discharge summary shows the Veteran was placed on a sliding scale of insulin control for diagnosed "type I" diabetes mellitus. See VA treatment records, received December 2000 at p.1 of 3. Subsequent VA treatment records show the Veteran has continued to be followed for diagnosed type I diabetes mellitus. See, e.g., VA treatment records, received April 2010 at p.1 (December 2000), and p.3 (July 2002), p.11 (April 2007) of 16, and received November 2009 at p.13 (December 2008) of 76; CAPRI (VVA), received July 2014 at p.1 of 489. Several VA treatment records show that various VA clinicians uniformly noted that the Veteran's diabetes is the result of his pancreatectomy. See, e.g., VA treatment records, received April 2010 at p.3 of 16 (July 2002), and received November 2009 at p.13 (December 2008 -"he is a diabetic as a result of a pancreatectomy"), p.44 (October 2004), and p.48 (January 2004) of 76. A December 2001 VA examination report (relating to the Veteran's original claim for service connection that was denied by a June 2002 rating decision) shows the VA examiner diagnosed insulin-dependent diabetes mellitus secondary to surgical absence of the pancreas. The VA examiner noted the Veteran's history of the surgical removal of his pancreas in 2000, and that the Veteran subsequently became a brittle diabetic. A November 2013 VA examination report relating to the Veteran's claimed pancreatitis shows the VA examiner noted that since the Veteran's pacreatectomy, he has been an insulin dependent type I diabetic. A May 2014 VA medical opinion shows the VA examiner opined that it is less likely than not that the Veteran's diabetes mellitus is related to his active service, including herbicide exposure. See p.21 of 24. The examiner reasoned that the Veteran has insulin dependent diabetes because his pancreas was surgically removed. The examiner explained, citing and quoting medical literature, that the pancreas contains the Islets of Langerhans, which are the source of the body's insulin. As noted above, herbicide exposure is presumed in this case based on the Veteran's service aboard the U.S.S. Askari in the riverways of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). In the case of certain veterans exposed to herbicide agents in the Republic of Vietnam, 38 C.F.R. § 3.309(e) provides for presumptive service connection for certain listed diseases, including "type 2" diabetes mellitus, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See also 38 U.S.C.A. § 1116(a) (West 2014) (providing for presumptive service connection for "type II" diabetes mellitus). In this case, however, the medical evidence of record shows that the Veteran has been followed for type I diabetes, not type II. It has been repeatedly referenced as "type I" diabetes from 2000 to 2014 in the medical records. While the Board acknowledges one notation to "type II diabetes" in one July 2009 VA treatment record, the Board finds that this notation was clearly a typographical error, and regardless, is by far outweighed by the plethora of VA treatment records all showing the Veteran's diabetes is "type I." See VA treatment records, received April 2010 at p.7 of 16. Therefore, service connection may not be presumed. The Board notes as an aside that Type I diabetes mellitus is defined, in pertinent part, as "characterized by abrupt onset of symptoms, insulinopenia, and dependence on exogenous insulin to sustain life . . . due to lack of insulin production by the beta cells of the pancreas." (Emphasis added). See Dorland's Illustrated Medical Dictionary, 30th Ed. (2003) at p.506. Type II diabetes mellitus is defined as having a "gradual onset . . . and no need for exogenous insulin." See id. Even if, arguendo, the Veteran had type II diabetes, the Board finds that the medical evidence uniformly shows that the Veteran's diabetes was caused by his pancreatectomy. As shown above, several VA clinicians specifically diagnosed the Veteran's diabetes as due to his pancreatectomy. The December 2001 and May 2014 VA examiners clearly opined that the Veteran's diabetes is due to the pancreatectomy. The Board finds this evidence is more than sufficient to rebut any possible presumption of service connection. See 38 C.F.R. §§ 3.307(d) and 3.309(e) (2016). The Veteran is not precluded, however, from proving entitlement to service connection on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). With regard to the Veteran's contention that his diabetes was caused by Agent Orange exposure, or otherwise directly related to his active service, the Board finds that the preponderance of the evidence is against finding that the Veteran's diabetes is related to his conceded herbicide exposure in service or otherwise related directly to his active service. The Board finds the opinion of the May 2014 VA examiner to be the most probative evdience of record as to the etiology of the Veteran's diabetes. The examiner provided a detailed rationale for the opinion, which opinion is not contradicted by any other medical evidence of record. The Board adds that there is no evidence of diabetes, or diabetes symptoms, in the service treatment records. The first record of diabetes was not until the year 2000, which was several decades after the Veteran's active service, which prolonged period without complaint weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). The Veteran's VA treatment records show the Veteran had no diagnosed diabetes prior to the pancreatectomy, and the records show that after the pancreatectomy, he was diagnosed with type I diabetes secondary to the pancreatectomy. The Board finds that all of this evidence heavily preponderates against the claim. Regarding secondary service connection, the Board finds that the preponderance of the evidence is against finding that service connection is warranted as secondary to pancreatitis, status post pancreatectomy. The claim for service connection for pancreatitis is denied herein. Therefore, there can be no service connection for diabetes as secondary to his nonservice-connected pancreatitis. See 38 C.F.R. § 3.310. Therefore, in summary, the Board concludes that service connection for diabetes as secondary to pancreatitis is not warranted, and service connection may not be presumed; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. ORDER Entitlement to service connection for pancreatitis, to include as secondary to the Veteran's service-connected PTSD is denied. Entitlement to service connection for diabetes (type I), to include as secondary to pancreatitis is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs