Citation Nr: 1804557 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-08 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran had active military service from January 1991 to July 1991, February 14, 2006 to March 1, 2006, March 15, 2006 to April 1, 2006, from September 2006 to February 2007, from June 2008 to October 2008 and from December 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. FINDING OF FACT Diabetes mellitus was not present during the Veteran's active service or manifest to a compensable degree within one year of service separation, and the medical evidence of record does not support that the Veteran's post-service diabetes mellitus is causally related to his active service. CONCLUSION OF LAW Diabetes mellitus was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See August 2013 VCAA correspondence. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and postservice treatment records with the claims file. The Veteran was also afforded an adequate VA examination in January 2014. The examiner considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board acknowledges the Veteran's representative's December 2017 request for a new examination to determine if the Veteran's current diabetes mellitus was first manifested in service. However, after a thorough review of the January 2014 examination, the Board finds the examiner provided a thorough and adequate analysis for the opinion provided and addressed the Veteran's contention that the medication prescribed in service lowered the sugar level during deployment. As a result, a new examination is not needed to adjudicate this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Facts, and Analysis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with diabetes mellitus. Diabetes mellitus is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including diabetes mellitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Finally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The January 2014 VA examination diagnosed the Veteran with diabetes mellitus. Additionally, VA treatment records reflect a diagnosis of diabetes mellitus. These diagnoses satisfy the first prong of the service connection claim. Regarding the in-service element of a service connection claim, the service treatment records reflect the Veteran was seen for symptoms of urinary frequency, mild dysuria as well as leaking during his periods of active service. In particular, the Veteran's urinary symptoms appeared during each of his three deployments to Iraq. Because the in-service treatment records document the existence of symptoms attributable to diabetes mellitus, the Board finds the in-service element of the Veteran's present claim is supported. However, the Board finds that there is no nexus between the Veteran's diabetes mellitus and his service. In support of that finding, the Board relies on the medical examination and opinion provided by the January 2014 examiner. In particular, the examiner found that, after reviewing the Veteran's service treatment records from all periods of active duty as well as his private and VA records, it was less likely as not that the Veteran's current diagnosis of diabetes mellitus was incurred in or caused by the treatment shown in service. In support of that opinion, the examiner acknowledged the Veteran's history of urinary frequency, mild dysuria and leaking that happened every time he was overseas. However, he noted that no diagnosis of diabetes mellitus was ever made in service. Additionally, the examiner noted that the reports of urinary urgency and frequency would resolve after the Veteran's deployments, as documented by his medical records. The fact that the symptoms would resolve was not consistent with a diagnosis of diabetes mellitus type I, in which symptoms develop suddenly and progress. As for diabetes mellitus type II, the examiner noted there was no confirmed diagnosis of that disability until July 2012 (more than one year after the Veteran's last period of active duty service). The Board finds the opinion in the January 2014 examination supports a finding that there is no causal relationship between the Veteran's current diabetes mellitus and his service. The examiner's opinion was provided by a physician, who would is well-qualified to provide an opinion in this matter; was well-reasoned; followed a thorough review of the medical records; and was supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning"). The Board acknowledges the Veteran's contention that the January 2014 examiner's opinion was incorrect because it was based on sugar levels after deployment when medication was actively lowering his sugar levels. However, the January 2014 VA examiner addressed that contention in his rationale, stating the Veteran's treatment with Levaquin was very short term, and would not account for his intermittent symptoms. Additionally, the Veteran's statements regarding the urinary symptoms he experienced in service and his diabetes mellitus diagnosis are lay statements that purport to provide a nexus opinion between his service and his condition, and the Board finds the Veteran's statements are not competent for this purpose. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In the instant case, the question of whether the Veteran's diabetes mellitus had onset during service is not something that can be determined by mere observation. Nor is this question simple, as it requires clinical testing and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported. The Board finds the Veteran is competent to describe the urinary symptoms he experienced while in service and deployed. However, the diagnosis of and causation of the symptoms in this case requires a medical expert's opinion and objective medical findings. As such, the Board finds that the Veteran's statements as to the onset and etiology of his diabetes mellitus are not competent evidence as to a nexus. Additionally, the Board acknowledges the March 2013 statement and April 2014 VA treatment notation statement which provide a positive nexus between the Veteran's symptoms and his service. In particular, the March 2013 statement from R.T., Clinical Nurse Specialist, opined it was more likely than not that the Veteran had undiagnosed diabetes during the time of his deployment. Additionally, the April 2014 VA medical statement indicated that after considering the symptoms that the Veteran had at the time and the diabetes mellitus, it was likely that the symptoms of recurrent urinary tract infections per the Veteran's history could be easily related to an evolving diabetes at the time. However, these statements lack additional rationale and medical support. Instead, they are conclusory. Moreover, it appears as though the statements relied upon the Veteran's historical reports instead of a review of the service treatment records. As such, they cannot be assigned probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. In this regard, it is noted that the March 2013 statement was reviewed by the April 2014 VA examiner, who indicated that it contained inaccurate statements. For example, R.T. stated that the Veteran had only one blood glucose test in service which was normal. However, the April 2014 VA examiner pointed to several other blood glucose test results from service and explained why they were not indicative of diabetes mellitus. Consequently, the only competent and the most probative evidence of record is the January 2014 VA opinion which determined that there was no relationship between the Veteran's current diabetes mellitus and his active service. The preponderance of evidence is against a finding that the Veteran's diabetes mellitus was incurred in service, was proximately due to or the result of his service, or manifested to a compensable degree within one year of separation from active service. There is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs