Citation Nr: 1752007 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-38 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for a gastrointestinal disorder, to include gastritis. 3. Entitlement to service connection for alopecia, to include as secondary to anthrax and meningococcal vaccinations. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had National Guard service from February 1980 to December 1983, including active duty from March 1980 to September 1980, with subsequent National Guard service from October 1987 until July 2007, including several periods of active duty for training (ACDUTRA). These matters come to the Board of Veterans' Appeals (Board) from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction over the claims was subsequently transferred to the RO in New York, New York. The Veteran appeared and testified before the undersigned Veterans Law Judge (VLJ) at a May 2012 Travel Board hearing and a transcript of the hearing has been associated with the claims file. These matters were most recently remanded by the Board in June 2016 for additional development, including relevant medical opinions. There has been substantial compliance with prior Board remand directives regarding the claims of diabetes mellitus type II, a gastrointestinal disorder, and alopecia; therefore, these matters are properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999). However, as discussed below, additional remand is required regarding the claim for bilateral hearing loss; therefore, that issue is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Diabetes mellitus type II did not have onset during active service or within one year of service discharge, was first diagnosed years after service discharge in 1997, and is not otherwise etiologically related to active service; moreover, it was not permanently aggravated by a period of ACDUTRA. 2. A chronic gastrointestinal disorder did not have its onset during active service nor is it otherwise etiologically related to active service, to include treatment for acute gastroenteritis in August 2004. 3. Alopecia did not have onset during active service and is not otherwise etiologically related to active service, to include as secondary to anthrax and meningococcal vaccinations. CONCLUSIONS OF LAW 1. Diabetes mellitus type II was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. A gastrointestinal disorder, to include gastritis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. Alopecia was not incurred in or aggravated by service nor is it secondary to any injury or event in service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service also includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Likewise, active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty, or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 1110. Active service also includes authorized travel to or from such duty or service. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including diabetes mellitus and sensorineural hearing loss, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Diabetes Mellitus Type II Notably, although a pre-service private treatment record from March 1979 documents that the Veteran had trace amounts of albumin in her urine, it was negative for glucose. Therefore, the evidence does not show pre-service diabetes. Subsequent service treatment records document a normal entrance examination in November 1979, without noted diabetes mellitus or related complaints in a concurrent Report of Medical History. In March 1980, the Veteran complained of diabetes controlled by diet and exercise, although the physician doubted hypoglycemia or a diabetic reaction. Again in July 1980, she reported she was a diabetic and requested a profile without physical training; however, the physician was unable to find evidence of diabetes in her chart. A July 1980 physical examination prior to discharge from active service also documents a normal relevant clinical evaluation, without noted diabetes, although she reported sugar in her urine since 1979. Subsequent National Guard service treatment records document a January 2002 Report of Medical History that notes the Veteran's non-insulin dependent diabetes diagnosis with related treatment; additionally, she reported that her sister also had a twenty-year history of diabetes. A February 2003 doctor's statement and an April 2004 Report of Medical History each similarly document diabetes mellitus controlled by diet and exercise, while and April 2006 treatment record that recommended medical retirement also notes her history of non-insulin dependent diabetes since age 35. Subsequent post-service treatment records document ongoing treatment for the Veteran's diabetes mellitus type II. In April 2014, a VA examiner noted that the Veteran was currently diagnosed with diabetes mellitus type II; however, the examiner ultimately opined that it was not as likely as not related to service because there was no evidence of diabetes mellitus during active service. The examiner stated that although the Veteran had one urine test which showed sugar in her urine, such a test result was not diagnostic for diabetes mellitus; moreover, her blood tests were normal while in service. The examiner stated that there was no evidence to indicate that the diagnosis of diabetes mellitus was made prior to 1997, as medical records from August 1998 clearly document that her diabetes started the previous year. In October 2014, a private physician opined that the Veteran's diabetes mellitus type II very likely had its onset in service, beginning in approximately 1997 as per a review of her service medical records. In March 2017, a VA examiner opined that the Veteran's diabetes mellitus type II was less likely than not related to active service. The examiner noted that there was no elevated blood sugar readings to meet the criteria for a diagnosis of diabetes in her initial period of active duty. The examiner acknowledged that the Veteran was initially diagnosed with diabetes in approximately 1997 but opined that there was no documentation of aggravation of her diabetes beyond the expected natural progression during the period of ACDUTRA. In June 2017, the examiner provided an addendum opinion that it was less likely than not that the Veteran's diabetes mellitus type II either began during or was otherwise caused or aggravated by active service, or was caused by a disease or injury incurred in or aggravated during a period of ACDUTRA, because laboratory findings from her first period of active duty did not support a diagnosis of diabetes, despite the Veteran's statements to the contrary, and although the evidence showed that she was subsequently diagnosed with diabetes in 1997, at age 35, there was no documentation of aggravation of her diabetes beyond its expected natural progression. Following a review of the evidence of record, the preponderance of evidence weighs against the claim of entitlement to service connection for diabetes mellitus type II. While the evidence is clear that the Veteran has a current diagnosis of diabetes, the probative evidence of record also documents that she was first diagnosed with this condition in 1997, at approximately age 35, which is over fifteen years following her discharge from active duty. As such, presumptive service connection is not warranted. Moreover, the lack of any related complaints or diagnosis in the intervening years is evidence which weighs against her claim that such condition has onset during active duty or has been continuous therefrom. To the extent the Veteran asserts that her condition first had onset during her initial period of active duty, such statements are afforded little probative value given their inconsistency with the additional evidence of record, including service treatment records which do not document diabetes and subsequent treatment records which document an onset of diabetes years later in 1997. Service connection may also be warranted if the Veteran's diabetes mellitus type II disability had onset or was aggravated during a period of ACDUTRA. 38 U.S.C.A. §§ 101(24), 1110; 38 C.F.R. § 3.6(a). However, despite the October 2014 private opinion that diabetes mellitus type II very likely had its onset in service, beginning in approximately 1997, the probative evidence of record does not document that the Veteran was on a period of ACDUTRA when her diabetes mellitus type II was initially diagnosed or otherwise had onset. As such, the October 2014 private opinion is of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Moreover, the March 2017 and June 2017 VA opinions acknowledged that the Veteran was initially diagnosed with diabetes in approximately 1997 but opined that there was no documentation of aggravation of her diabetes beyond the expected natural progression during a period of ACDUTRA. As such, they are probative evidence which weigh against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, following a review of the evidence of record, the preponderance of the probative evidence weighs against the claim of entitlement to service connection for diabetes mellitus type II. As such, there is no reasonable doubt to be resolved, and the appeal is denied. Gastrointestinal Disorder Service treatment records do not document complaints, treatment, or diagnosis of a gastrointestinal disorder. However, private treatment records relate that the Veteran was diagnosed with gastritis in August 2004. Additionally, private treatment records from March 2009 reflect a diagnosis of chronic gastritis which required prescription Nexium. Similarly, private treatment records from October 2014 also show a diagnosed chronic gastrointestinal disorder. In an April 2014 VA examination, the examiner noted that the Veteran had viral gastroenteritis that resolved without any residuals and concluded that there was no currently-diagnosed gastrointestinal disorder. The examiner further stated that since the notation of gastroenteritis in August 2004, there was no documentation in the medical records that she was treated for any complaints of any gastrointestinal conditions. However, as the April 2014 examiner failed to consider the March 2009 and October 2014 private treatment records, VA obtained an additional medical opinion in March 2017. At that time, following a review of the record, the examiner concluded that the Veteran's gastrointestinal disorder was less likely than not incurred in or caused by any in-service injury, event or illness. The examiner noted that service treatment records from the Veteran's initial period of active duty were silent for a gastrointestinal disorder, as were her treatment records from periods of ACDUTRA. The examiner acknowledged the March 2009 documentation of gastritis but noted that this was over one and a half years following the Veteran's separation from the National Guard, with no documentation of continuous complaints, chronicity of diagnosis, or aggravation beyond its natural progression. In June 2017, the same examiner provided an addendum medical opinion that it was less likely than not that the Veteran's claimed gastrointestinal disorder either began during or was otherwise caused by active service, or was caused by a disease or injury incurred in or aggravated during a period of ACDUTRA. The examiner stated that the August 2004 treatment of acute viral gastroenteritis was an acute condition which resolved without residuals or chronic state. The examiner further opined that there was no current diagnosis of gastroenteritis, no documentation of chronicity since the August 2004 treatment for acute gastroenteritis, and no documentation of aggravation during a period of ACDUTRA. The Board affords great probative weight to the March 2017 and June 2017 VA opinions which acknowledged that the Veteran was diagnosed with acute gastroenteritis in August 2004 but opined that there was no current diagnosis of a gastrointestinal disability, no documentation of chronicity since the August 2004 treatment for acute gastroenteritis, and no documentation of aggravation during a period of ACDUTRA. As such, they are probative evidence which weigh against the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, following a review of the evidence of record, the preponderance of the probative evidence weighs against the claim of entitlement to service connection for a gastrointestinal disability. As such, there is no reasonable doubt to be resolved, and the appeal is denied. Alopecia The Veteran also claims entitlement to service connection for alopecia, which she has consistently contended is a result of her anthrax and meningococcal vaccinations. As noted in the March 2014 Board remand, vaccination may constitute an injury during a period of ACDUTRA, and service records reflect that she was given both vaccines in February 2003. Additionally, she has submitted medical literature identifying a relationship between anthrax vaccinations and alopecia, as well as a lay statement suggesting her current alopecia began after her vaccinations. As such, the March 2014 Board remand directed that a medical nexus opinion was required. The May 2014 VA examiner noted the Veteran's diagnosed alopecia in 2004, along with her report that her hair loss occurred the week after her anthrax and meningitis vaccinations. However, the examiner ultimately opined that alopecia was not at least as likely as not caused by February 2003 anthrax or meningococcal vaccinations. The examiner stated that the preponderance of currently established scientific and medical evidence did not support any relation between anthrax and meningococcal vaccinations and the development of alopecia. The May 2014 VA examiner's opinion was found to be inadequate by the Board in its June 2016 remand, after which the Board sough an additional addendum medical opinion. In March 2017, an examiner opined that it was not at least as likely as not that the Veteran's alopecia was related to active service, or was caused by a disease or injury incurred in or aggravated during a period of ACDUTRA. The examiner acknowledged the buddy statement and medical literature provided by the Veteran in support of her claim; however, the examiner noted that the Veteran had a type of non-scarring alopecia which was a type of female pattern hair loss. The examiner stated that service treatment records did not show any complaints or treatment of hair loss during active service or during a period of ACTDURA. The examiner acknowledges that there may be isolated reports of hair loss due to anthrax vaccine within medical literature; however, the examiner reviewed medical literature regarding female pattern hair loss and stated that the majority of established scientific and medical literature does not support an association between anthrax vaccination and the type of hair loss experienced by the Veteran. The Board affords great probative weight to the March 2017 VA opinion which properly considered the evidence submitted by the Veteran is support of her claim but ultimately relied on a competent review of medical literature to support a negative nexus opinion that alopecia was less likely as not related to active service, or was caused by a disease or injury incurred in or aggravated during a period of ACDUTRA. As such, the March 2017 VA opinion is probative evidence which weigh against the claim. Accordingly, following a review of the evidence of record, the preponderance of the probative evidence weighs against the claim of entitlement to service connection for alopecia. As such, there is no reasonable doubt to be resolved, and the appeal is denied. Finally, neither the Veteran nor her representative has raised any issues with the duty to notify. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."). To the extent that a March 2017 statement by the Veteran asserts that the March 2017 VA opinions regarding the Veteran's diabetes and gastrointestinal claims were inadequate, the subsequent relevant addendum opinions were obtained in June 2017 which properly address the asserted inadequacies. As such, when read together and considered as a whole, the March 2017 and June 2017 VA opinions are adequate to adjudicate the diabetes and gastrointestinal claims. Therefore, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Service connection for diabetes mellitus type II is denied. Service connection for a gastrointestinal disorder, to include gastritis, is denied. Service connection for alopecia, to include as secondary to anthrax and meningococcal vaccinations, is denied. REMAND After a thorough review of the claims file, additional evidentiary development is necessary regarding the claim of entitlement to service connection for bilateral hearing loss in order obtain an adequate medical opinion. Although the prior March 2014 Board remand stated that recent audio testing established a current bilateral hearing loss for VA purposes, the Board is unable to find post-service treatment records which document a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Board is mindful, however, that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); 38 C.F.R. § 3.159(c). Notably, VA treatment records document that the Veteran was examined by an audiologist in November 2016 and December 2016; however, the puretone test results were obtained, but the results were not recorded so as to allow for review by the Board. Indeed, such records state that audiometric results are available in the Computerized Patient Record System (CPRS); however, as the Board does not have access to the CPRS database to consider these results, such records should be obtained upon remand. Moreover, although the most recent March 2017 VA opinion related the Veteran's high frequency right ear hearing loss to active service based upon her reported noise exposure and military occupational specialty (MOS), such results do not appear to qualify for disabling hearing loss for VA purposes. However, as the March 2017 VA examiner did not acknowledge or discuss subsequent VA treatment records documenting an apparent worsening of the Veteran's hearing since active service, an additional medical opinion would assist the Board in adjudicating the claim. Accordingly, the case is REMANDED for the following actions: 1. Obtain relevant VA treatment records, including the results of audiometric testing conducted in November 2016 and December 2016, as well as any other outstanding records of audiometric testing (including CPRS records) related to bilateral hearing loss. Any documents received by VA should be associated with the record and any negative responses should be properly documented. 2. Obtain an addendum opinion from a qualified examiner regarding the etiology of the Veteran's claimed bilateral hearing loss. The entire claims file and a copy of this Remand should be made available to and reviewed by the examiner in conjunction with the opinion. All indicated studies should be conducted, including current audiometric testing if deemed necessary, and all findings must be reported in detail. Specifically, the examiner must first offer an opinion as to whether it is as likely as not (a 50 percent probability or greater) that the Veteran has had a current bilateral hearing loss disability at any time during the pendency of the claim. In rendering this opinion, the examiner must specifically consider and discuss all relevant audiometric results of record. If the examiner finds that the Veteran has had a current hearing loss disability for any period on appeal, the examiner must also render an opinion as to whether such hearing loss is etiologically related to the Veteran's active service, including her reported in-service noise exposure. In rendering the above opinions, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155 (1993). 3. Following the above development, ensure compliance with the above directives and adequacy of any opinion obtained. Take any corrective actions warranted. 4. Thereafter, readjudicate the claim of entitlement to service connection for bilateral hearing loss. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC) and afford them an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs