Citation Nr: 1752894 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-11 577A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Karl Truman, Attorney ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1966 to July 1968 and from September 1968 to October 1973, including service in the Vietnam War. He is the recipient of the Purple Heart Medal on three occasions. This comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In the March 2011 rating decision, the RO denied service connection for diabetes mellitus type II and depression with mood swings. In September 2014, prior to June 2016, when the case was certified to the Board, the Veteran withdrew his claims for service connection for a bladder disability, a back disability, a right arm disability, scar tissue on the stomach, skin cancer, degenerative joint disease, chronic obstructive pulmonary disease (COPD), and ruptured kidneys, as well as an initial compensable rating for a pelvic bone fracture. Because the appeals were withdrawn prior to certification to the Board, the withdrawal became effective when it was received by the RO. 38 C.F.R. § 20.204(b)(3)(2017). Therefore, the Board will not dismiss these claims. In a May 2015 rating decision, the Agency of Original Jurisdiction granted service connection for an unspecified trauma and stressor related disorder and assigned a 30 percent disability rating, effective September 28, 2010. In a July 2015 Notice of Disagreement (NOD), the Veteran requested an effective date of July 28, 2010, which the AOJ granted in a November 2015 rating decision. As this represents a full grant of the benefit sought with respect to this issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) In April 2017, the Board referred the Veteran's claim for an expert medical opinion by a Veterans Health Administration (VHA) physician. See 38 U.S.C. § 7109 (2012); 38 C.F.R. § 20.901 (2017). The VHA physician provided an opinion in June 2017. VA referred the opinion letter to the Veteran and his attorney for review and allowed 60 days for the submission of any additional evidence or argument. VA has received no response. A copy of the VHA letter has been associated with the claims file. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of diabetes mellitus, type II, currently or at any time during the pendency of the claim. CONCLUSION OF LAW The criteria for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his attorney have raised any issue with the duty to notify or duty to assist. 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of diabetes mellitus to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As discussed below, the preponderance of the evidence does not establish that the Veteran has had diabetes mellitus during the period on appeal. Therefore presumptive service connection is not warranted. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes diabetes mellitus, type II. 38 C.F.R. § 3.309(e). However, as discussed below, the preponderance of the evidence does not establish that the Veteran has had diabetes mellitus during the period on appeal. Therefore presumptive service connection is not warranted. The Veteran seeks service connection for diabetes mellitus, type II. Because the Veteran's service records indicate service in the Republic of Vietnam from July 1967 to July 1968, April 1970 to June 1970, and February 1971 to August 1971, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The period on appeal began in June 2010, when VA received the Veteran's claim for service connection. The Veteran was afforded a VA examination in February 2011. The Veteran reported that he was diagnosed with diabetes in 2000 but no longer had to take medication as of 2008. The Veteran reported no current medication or treatment for diabetes other than watching his diet. The Veteran also reported that his COPD had previously required the use of oral steroids that elevated his blood sugar. The examiner noted a 2005 diagnosis of diabetes in the Veteran's private treatment records but that all lab results available for review indicated normal or prediabetic blood sugar levels and thus did not warrant a diagnosis of diabetes. The examiner opined that the Veteran's previously elevated blood sugar was likely related to the use of oral or injected steroid medications used for treatment of end stage COPD. The Veteran is not service-connected for COPD. In his November 2011 Notice of Disagreement (NOD), the Veteran reported that he had been informed of his sugar levels by doctors and knew that most of the readings were considered above the level or borderline for a clinical diagnosis of diabetes. Private treatment records indicate that the Veteran was hospitalized for COPD from late November to early December 2013. Discharge diagnoses included diabetes mellitus, type II. A February 2014 VA treatment record notes diabetes mellitus among the assessed conditions. A July 2014 private treatment record notes diet-controlled adult-onset diabetes mellitus among the assessed conditions. VA treatment records from 2014 and 2015 list insulin among the Veteran's active medications. The Veteran was afforded an additional VA medical opinion in January 2015 by an examiner who reviewed the claims file but did not directly examine the Veteran. The examiner noted a diagnosis of impaired fasting glucose in March 2013 but found that the Veteran had never met the criteria for a diagnosis of diabetes mellitus, type II. The examiner specified the lab results that would be necessary to support such a diagnosis and found that the Veteran's did not meet any of those thresholds. In a February 2015 addendum opinion, the January 2015 VA examiner found that the Veteran's COPD was severe, that treatment for COPD exacerbations required large doses of steroids, and that the Veteran's insulin prescription was to treat the possibility of hyperglycemia that may occur with steroid use. The examiner again detailed the Veteran's lab results and opined that they did not meet the criteria for a diagnosis of diabetes mellitus, type II. The Veteran was afforded an additional VA medical opinion in April 2016 by an examiner who reviewed the claims file but did not directly examine the Veteran. The examiner described the Veteran's lab results and found that they were not consistent with a diagnosis of diabetes mellitus, type II. In June 2017, a VHA endocrinologist reviewed the available medical records from 2008 to 2014, thoroughly described the diagnostic criteria for diabetes mellitus, type II, and listed all relevant lab results. The VHA endocrinologist opined that it was "conceivable," based on the Veteran's history and physicians' medical notes, that he developed steroid-induced diabetes during treatment with high dose glucocorticoid medication. The examiner set forth the diagnostic criteria set forth by the American Diabetes Association and noted that they were accepted by the medical community at large, and stated that he criteria were not met. This conclusion was based upon review of the Veteran's laboratory testing results. Specifically, the endocrinologist noted the criterion that there be a fasting plasma glucose of 126 mg/dL on at least two occasions. The endocrinologist noted that the Veteran's plasma glucose was 169 mg/dL in February 2012 and 138 mg/dL in January 2011. The endocrinologist stated that neither result was specifically designated as "fasting," and the accompanying HgbA1c values were normal. The endocrinologist noted that two elevated plasma glucose levels over a year apart "...would not be considered by most experts in the field to meet the 'on at least two occasion' criterion. The VHA endocrinologist found no credible evidence that the Veteran had diabetes mellitus, type II at any time during the period beginning July 2008. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with diabetes. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Veteran's opinion that he has diabetes mellitus, type II, is not a competent medical opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions. The VA examiners and the VHA endocrinologist have thoroughly and convincingly explained that a diagnosis of diabetes mellitus, type II requires specific laboratory results and that the Veteran's laboratory results during the period on appeal have not met the necessary thresholds for a diagnosis. The VA examiners have also provided a convincing alternative explanation for the Veteran's use of insulin: that it was necessary to counteract the effects of medication for his COPD, for which he is not service-connected. The Board acknowledges that VA and private treatment providers have diagnosed the Veteran with diabetes mellitus, type II, but none of these diagnoses include any reasoning to explain how this diagnosis can be appropriate without the necessary laboratory results. Because "most of the probative value of a medical opinion comes from its reasoning," these diagnoses are therefore of less probative value than the VA examiners' opinions and that of the VHA endocrinologist. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Upon review of the lay and medical evidence of record, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus, type II. As the evidence does not establish that the Veteran had a diagnosis of diabetes during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, type II is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs