Citation Nr: 1802367 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1987 to May 1993. These matters come before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. In May 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in September 2015 and were remanded for further development (i.e. issuance of VCAA notice, VA records, private records, SSA records, and a VA opinion with regard to diabetes). They have now returned to the Board for further appellate consideration. The issue of entitlement to a cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The service treatment records are negative for diagnosis of, or treatment for, diabetes in service. 2. The most probative evidence of record is against a finding that the Veteran had diabetes in service or within a year after separation from service. 3. The Veteran is not presumed to have been exposed to an herbicide agent (i.e. 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) in service. 4. The most probative evidence of record is against a finding that the Veteran has diabetes causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's representative has argued that the 2016 VA clinical opinion is inadequate because the VA clinician did not provide an etiology for the Veteran's diabetes (see December 2016 brief). The Board finds that this contention is without merit. A VA examiner need not opine as to the exact cause of a veteran's disability. "The focus of the medical nexus opinion is to determine whether there is nexus between a veteran's in-service disease or injury and his current condition, not to identify the actual etiology of the condition." See Allen v. Shinseki, 2011 WL 287155, Vet. App. 2011 (January 31, 2011); citing Hickson v. West, 12 Vet. App. 247, 253 (1999). Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has a diagnosis of diabetes and contends it has its onset in service. The Veteran did not have service in an area and during a time which warrants service connection on a presumptive basis under 38 C.F.R. § 3.309 (e); the evidence does not reflect such service and he has not contended such service. Thus, service connection on a presumptive basis under 38 C.F.R. § 3.309 (e) is not warranted. The Veteran would be entitled to service connection if, in addition to his current diagnosis of diabetes, he had a diagnosis of diabetes mellitus in service or chronicity of symptoms since service, if his diabetes manifested to a compensable degree within one year of separation from service, or if there is competent credible evidence of record that it is as likely as not that his current diabetes is due to, or was aggravated by, service. The Board finds for the reasons noted below that none of those conditions has been met; thus, service connection is not warranted. The Veteran's service treatment records (STRs) reflect several glucose readings with only one being assessed as high. The Veteran's August 1988 Report of Medical Examination for periodic purposes reflects that his urinalysis was negative for albumin or sugar in his urine. His glucose level was 95 which is normal. A November 1991 Bayne-Jones Army Community Hospital (B-JACH) record reflects a glucose level of 101 which was normal; a normal range was noted to be 60 to 110. The November 1991 laboratory slip reflects his urine was negative for glucose. A February 1992 B-JACH record reflects a glucose level of 165 which was noted to be high. A March 4, 1992 B-JACH record reflects that the Veteran had a glucose of 107 which was in the normal range. A March 10, 1992 B-JACH record reflects that blood drawn at 0900 hours had a glucose level of 109 which was in the normal range. A March 10, 1992 B-JACH record reflects that blood drawn at 1400 hours had a glucose level of 86 which was in the normal range. A March 30, 1993 laboratory record reflects that the Veteran's urinalysis was negative for glucose. The Veteran's April 1993 Report of Medical History reflects that he denied ever having had sugar or albumin in his urine. The Board notes that he reported more than a dozen other complaints. Thus, if he had concerns about chronic high levels of glucose, or a concern about diabetes, it seems that it would have been reasonable for him to have noted them at that time. In sum, the Veteran had one glucose reading in service which was abnormal, but had a prior reading, and more importantly, four subsequent readings, which all showed normal glucose levels. There is also no competent credible evidence of record which reflects a diagnosis of diabetes in service. Thus, the Board finds that the preponderance of the evidence is against a finding of diabetes in service. Next, the Board has considered whether the Veteran's diabetes manifested to a compensable degree within a year of separation from service. There are no clinical records in the year after separation from service, and there are no subsequent records which reflect that his diabetes manifested to a compensable degree within the first year after service discharge. A September 1993 general medical examination report for VA purposes reflects that the Veteran reported more than a dozen complaints, but none with regard to diabetes or glucose levels. The Board notes that the Veteran's lack of report of diabetes is not definitive proof that he did not have it; however, as it was a general medical examination, it seems likely that he would have mentioned it had he been diagnosed with or concerned about diabetes. A November 1995 VA examination report reflects that the Veteran had numerous complaints, but again none was related to diabetes or glucose levels. It was further noted that the Veteran was "on no medications" (other than Motrin for pain). The earliest post service evidence of diabetes is in 2010 (e.g. a May 2010 record Minneapolis Heart Institute reflects a diagnosis of diabetes). This is approximately 17 years after separation from service. A December 2011 Mayo Clinic record reflects that the Veteran "has been a diabetic for at least 12 years". It is unclear if this was based on clinical records or the Veteran's reported history; regardless, it would be evidence of diabetes in approximately December 1999, or more than six years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's testimony that "right away" after discharge he was diagnosed with diabetes in 1993 and put on a pill for medication. However, given the March 1993 laboratory finding which was normal, the November 1995 VA examination report which reflects that the Veteran did not take any prescribed medication, the post-service medical records indicating the Veteran's diabetes began between 6 and 17 years after service, and the lack of clinical records reflecting a diagnosis within a year of service, the Board finds that the Veteran's assertion as to being diagnosed with diabetes and treated with medication for such within a year of service is less than credible as it is inconsistent with the medical evidence of record, and in particular the evidence in 1995 that he was not taking any prescribed medication. Importantly, in making such a credibility finding, the Board is not implying that the Appellant has any intent to deceive. Rather, the Appellant may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred. The Board finds that records closer in time to service are more probative. In this regard, the Board also notes that the Veteran asserted at the 2016 VA examination that he applied for VA compensation for diabetes in 1993 and it was denied; the Board finds that this is not accurate. The record reflects that the Veteran applied for service connection for some disabilities in 1993, but did not apply for service connection for diabetes, and it was, therefore, not denied. The Board also notes that a November 2015 VA record reflects that the Veteran is a poor historian with regard to his medical history. The Board notes that a 2016 VA examiner could not opine that the Veteran's diabetes started in service without resort to mere speculation due to an absence of clinical records. The Veteran has been informed of what evidence is necessary to substantiate his claim and has failed to provide evidence of diabetes in service, compensable manifestations of diabetes within a year of service, or medical evidence linking his diabetes to service. The Board also notes that the VA examiner indicated that the date of diabetes with peripheral neuropathy was 2012; however, the Board reasonably reads this to indicate the date the Veteran's peripheral neuropathy began, It is evident that the examiner was aware of a diagnosis of diabetes earlier than 2012 as the examiner also noted that the Veteran had been told in the 1990s that he needed better treatment for his diabetes. The clinician also stated that the closest date after military service that he could find was a November 2010 record showing a hemoglobin level which indicated that his diabetes needed much tighter control. While there are records which reflect a diagnosis of diabetes slightly earlier than that (see May 2010 record noted above), as they do not reflect actual laboratory findings upon which the VA clinician could base a definitive finding of diabetes, the Board takes the examiner's statement to mean that the November 2010 record was the earliest record showing actual laboratory findings upon which the VA clinician could base a definitive finding of diabetes. Regardless, as noted by the clinician there was no diagnosis of diabetes in service or the years immediately after separation from service. Despite the fact that the examiner could not provide an opinion without resorting to mere speculation due to an absence of clinical evidence (e.g. laboratory findings in the 1990s), the opinion is nevertheless deemed adequate as it is provides sound reasoning for the conclusion. (see Jones v. Shinseki, 23 Vet. App. 382 (2010).) Finally, the Board finds that there is no competent credible opinion that the Veteran's diabetes is causally related to service. In this regard, the Veteran has not provided a credible allegation as to how his diabetes could be related to service given that it did not have an onset in service and he was not exposed to a recognized herbicide agent. Although the Veteran has diabetes and has a family history of diabetes in that he has reported that his father and sister both have diabetes, and a sister has "borderline diabetes" (see January and March 2015 VA records), he has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Any clinical opinion based on the Veteran's less than accurate history and without consideration of the full STRs in evidence and post-service clinical records lacks probative value. In sum, the Veteran did not have a diagnosis of diabetes in service, he had normal glucose levels upon separation from service with no treatment for diabetes, he did not report diabetes upon general medical examination four months after separation from service, he denied medication for any condition three years after separation from service, there are no clinical records in the decade after separation from service noting a diagnosis within a year of separation, and there is no clinical opinion which considers all of the glucose readings in service and which finds that it is as likely as not that his diabetes began in service and/or is causally related to, or aggravated by, service. Based on the foregoing, service connection for diabetes is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. REMAND The Veteran has a diagnosis of a cervical spine disability and had complaints of the neck in service after an injury. Thus, the issue is whether his in-service injury is related to his current neck disability. The Veteran has used various terms for the disability for which he is seeking service-connection: degenerative disc disease, arthritis, or a slipped disc pressing against his spinal cord. The claims file includes a 2012 VA clinical opinion; the Board finds that a supplemental opinion may be useful to the Board in adjudicating the claim. The Veteran's STRs reflect that in April 1989, the Veteran was hit on the right side of the body by a falling rotten tree causing pain in right arm and neck. A radiology examination reflected that his cervical spine was normal. A follow-up record from the next day (April 14, 1989) reflects that the Veteran continued to have elbow and wrist pain but no other complaints. He was seen for his arm on April 17 and April 21, 1989. The Veteran served for another four years with no record of further complaints of the neck. The Veteran's April 1993 report of medical history for separation purposes (i.e. ETS (expiration of term of service)) reflects that he had more than a dozen complaints but none specific to the cervical spine. Although the Veteran's representative now argues that the "back" refers to a cervical spine complaint, the evidence in service and closer in time to service is against such a finding. The report of medical history reflects a complaint of the lower left pinched nerve in the back. A September 1993 VA general medical examination report reflects that the Veteran reported numerous complaints, to include the lower left back, but no complaints of the neck were noted. The earliest post-service complaint of the neck is not for more than two years after separation from service. A January 1996 VA examination report reflects that the Veteran was employed in manual labor (sheet metal worker). It was noted that the Veteran reported a "grinding sensation in his neck" and that he had "been to a chiropractor several times for this and she has done various maneuvers with his neck." The Veteran did not report that it had been since service (he did note lower back pain since service.) A February 1996 VA MRI of the cervical spine reflects a small central herniation of the nucleus pulposus at C4-5 without significant central stenosis, and an abnormal appearance of the tip of the odontoid with ill-definition of the bony contour and suggestion of thickening of the posterior ligamentous structure, which may represent a congenital anomaly. Social Security Administration (SSA) records reflect that the Veteran has cervical myelopathy. A September 2011 Mayo Clinic record reflects disc osteophyte complex at C3-C4 and C4-C5 with a superimposed central protrusion at C4-C5 which produces spinal canal narrowing, as well as other findings to include mild degenerative changes at the remainder of the lower cervical spine. A February 2012 VA radiology record reflects moderate degenerative disc disease of C7-T1, normal prevertebral soft tissues except for an 8.2mm linear density posterior to the lower thyroid cartilage of unknown clinical significance, and seven cervical vertebrae which maintain normal stature and alignment. An October 2013 VA radiology record reflects "slight/mild disc space narrowing, C3-4, Minimal 2-3 mm retrolisthesis of C3 over C4." The 2012 VA examiner found that the Veteran's DDD of the cervical spine is probably a combination of age-related DDD and cumulative trauma from normal age-related activities. The examiner did not address the Veteran's contention that he has a slipped disc, and did not discuss the 1996 MRI findings and 2011 findings with regard to a herniated disc and protruding disc. Thus, a supplemental opinion may be useful. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA treatment records regarding the cervical spine. 2. Obtain a supplemental clinical opinion as to the Veteran's cervical spine which discusses more than the previous February 2012 opinion which limited its finding to degenerative disc disease. The clinician is requested to opine as to whether it is as likely as not the Veteran has any cervical spine disability, to include i.) DDD; ii.) herniated disc; iii.) myelopathy; iv.) arthritis, causally related to service. The clinician should consider the clinical evidence of record to include: a.) the April 1989 complaints noted in the STRs; b.) the January 1996 VA examination complaints of a "grinding" in the neck and the February 1996 VA MRI findings of a small central herniation of the nucleus pulposus at C4-5; c.) the September 2011 Mayo Clinic record of a central protrusion at C4-C5 which produces spinal canal narrowing; and d.) the findings of cervical myelopathy. 3. Following completion of the above, readjudicate the issue of entitlement to service connection for a cervical spine disability. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs