Citation Nr: 1753088 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-10 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a traumatic brain injury (TBI). 3. Entitlement to service connection for a headache disability, to include as due to a service-connected disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from September 1985 to June 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). When this case was most recently before the Board in June 2017, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. These systems were reviewed to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. The Veteran does not currently have diabetes mellitus, type II. 2. The Veteran does not currently have a TBI. 3. The Veteran does not currently have a headache disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a TBI have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a headache disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a September 2009 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. As noted above, this case was remanded in June 2017 in pertinent part to obtain Social Security Administration (SSA) records, afford the Veteran a VA examination for her claimed diabetes mellitus, and obtain an addendum VA opinion regarding the claimed TBI and headaches. In response to the remand, SSA records were added to VBMS, the Veteran was afforded a VA examination in August 2017, and an addendum VA opinion was obtained in July 2017. The Board finds that there has been substantial compliance with its Remand directives and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Some chronic diseases, including diabetes mellitus, may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1101 (3), 1112(a); 38 C.F.R. § 3.307 (a), 3.309(a). As to the claims for service connection for diabetes mellitus, type II; TBI; and headaches, the Board finds that the claims fail as Hickson element (1) is not met. Given the medical evidence of record, the Board finds that the Veteran does not have diabetes mellitus, type II; TBI; or a headache disability. In regards to the claim for diabetes mellitus, type II, the Board notes that a VA treatment record in September 2009 showed an assessment of "hyperglycemia most likely diabetes mellitus, type II"; however, the Board finds that this statement represents a speculative guess as to what was causing the Veteran's underlying symptoms, and does not represent a formal diagnosis. A VA treatment record in September 2016 showed a post-procedure discharge note with "Yes Diabetic" indicated; however, such a notation does not appear in a formal diagnosis section. The Veteran was afforded a VA examination in August 2016 in which the examiner did not diagnose diabetes. Moreover, in response to the Board's June 2017 remand, the Veteran was afforded a VA examination in August 2017 in which the examiner found no official diagnosis of diabetes mellitus, type I or type II. The VA examiner noted an impaired fasting glucose in 2012 but stated that the Veteran may not have been fasting and that subsequent testing had been normal. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran did not have diabetes; a diagnosis of glucose intolerance was considered in the past and seemed to have resolved on subsequent studies after she began dieting in 2012. Given the medical evidence of record, the Board finds that the Veteran does not have diabetes mellitus, type II. In regards to the claims for TBI and headaches, the Veteran was afforded a VA examination in August 2016 in which the examiner noted no diagnosis of headaches in the medical record and found that her symptoms were more likely related to an eye strain from reading and using the computer for extended periods of time. The examiner opined that it was less likely as not that the Veteran developed headaches due to a fall in the shower during active duty service or from any other condition. Additionally, the examiner opined that it was less likely than not that headaches were caused by a service-connected disease or aggravated by a service-connected disease, such as posttraumatic stress disorder (PTSD), asthma, or arthritis. A September 2016 VA treatment record showed a diagnosis of post-epidural headaches and that the Veteran reported developing a headache after receiving a cortisone injection into her back. As such, the Board remanded this matter in June 2017 for an addendum opinion. In response to the Board's remand, an addendum VA opinion was received in July 2017 in which the examiner outlined pertinent medical records and opined that the Veteran did not have a diagnosis for TBI. The examiner stated that there was no medical evidence that the Veteran had a TBI while in active service; service treatment records were silent for TBI or any residuals of TBI. The examiner also stated that there was no evidence in the medical record that the Veteran had a chronic medical condition of headaches and that service treatment records were silent for a headache condition in service. The examiner stated that the Veteran complained about headaches along with other symptoms from the flu or as a reaction to medication, but this did not constitute evidence of an independent headache condition; whenever the Veteran complained of headaches as part of the flu or as a side effect of medication, the headache subsided as one would expect medically, along with the cough or aches or dizziness. Given the medical evidence of record, the Board finds that the Veteran does not have a TBI or a headache disability. The Board acknowledges that the Veteran is competent to testify as to her beliefs that she has diabetes mellitus, type II; TBI; and a headache disability that are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what she has experienced, she is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Therefore, the Veteran's claims are outweighed by the competent and probative medical opinion. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that the record does not contain any evidence of diabetes mellitus, type II; TBI; and a headache disability at any point during the appeal. As such, the Veteran does not have a current disability under the law, and as a result, service connection for diabetes mellitus, type II; TBI; and a headache disability cannot be granted. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, in order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). However, as discussed above, the Board has found that the Veteran does not have a headache disability. Thus, service connection is not warranted on a secondary basis. Further, as there is no current diabetes mellitus, type II; TBI; and a headache disability, service connection on a presumptive basis or based on continuity of symptomatology is also not warranted. See 38 C.F.R. §§ 3.307, 3.309. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for a TBI is denied. Service connection for a headache disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs