Citation Nr: 1804612	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-12 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for high blood pressure; for accrued benefits or substitution purposes.

2. Entitlement to service connection for diabetes mellitus, type II for accrued benefits or substitution purposes.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

The Appellant
ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1971 to November 1974. The Veteran died in January 2014; and the Appellant is his surviving spouse. 

Following the Veteran's death, in February 2014 his surviving spouse filed a request to be substituted as the appellant for purposes of processing the claim to completion in accordance with the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). In April 2016, Department of Veterans Affairs (VA) made a formal determination that the Veteran's spouse was eligible for substitution. Thus, she has been determined to be a proper substitute appellant in this case.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In October 2013, the Veteran and the Appellant testified before a Veterans Law Judge (VLJ), who is no longer employed by the Board. The Veteran died in January 2014 before that VLJ made a determination of the issues; and the VLJ dismissed the case. The transcript of the hearing is of record.

In September 2017, the Appellant testified before the undersigned VLJ. During the hearing the VLJ took testimony concerning the Appellant's claim of Dependency and Indemnity Compensation (DIC) based on the cause of the Veteran's death as well as the issues noted in the caption. The transcript is of record.  In June 2016, VA issued a Statement of the Case (SOC) for this issue; however the Appellant did not file a VA Form 9. Therefore, the issue of DIC based on the cause of the Veteran's death is not before the Board and is referred to the AOJ for any appropriate action. 

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

The Veteran's diabetes did not become manifest during service or for many years thereafter and is not shown to be related to service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for diabetes are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 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).
The Board notes that the Veteran's representative stated at the October 2013 Board hearing that the Veteran's service treatment records were incomplete and that the Veteran was sent a letter indicating his service treatment records were lost. The Board finds no indication that the Veteran's service treatment records were incomplete. Further, it appears that the record does not contain a letter informing the Veteran of incomplete service treatment records. Therefore, the Board finds that VA fulfilled its duty in obtaining the Veteran's service treatment records.

II. Service Connection for Diabetes

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. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "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) (internal quotation marks omitted). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017).

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309 (a), including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. Also, pursuant to 38 C.F.R. § 3.303 (b) when a chronic condition (e.g., diabetes mellitus) is present, a claimant may establish the second and third elements outlined above by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court or Veterans Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service treatment records are silent regarding any treatment, diagnosis, or complaint of diabetes during service. In September 1974, the Veteran had a urinalysis, which did not indicate sugar in the Veteran's urine. 

The Veteran's post-service treatment private treatment records indicate that the Veteran was diagnosed with diabetes in February 2008. 

In November 2010, The Veteran stated that he had been diagnosed with diabetes and hypertension. The Veteran stated his doctors believed that it may be service related because of the food that he ate during his time in service. The Veteran stated that he experienced dizziness, swelling, and blurred vision while in-service. 

In April 2013, the Veteran stated that in service he was told that if he controlled what he ate and watched his weight his diabetes in the military would be under control. He stated he was never on any medication for his diabetes during service. 

In October 2013, the Veteran testified in a Board hearing. The Veteran's representative argued that the Veteran's service treatment records noted that the Veteran had borderline diabetes and that his borderline diabetes could be controlled by diet and exercise. The Appellant stated that when the Veteran was in the military she noticed different things happening to the Veteran. She stated he would complain about his body hurting or his feet tingling. 

In September 2017, the Appellant testified at a Board hearing. The Appellant testified that the Veteran was diagnosed with diabetes in 2010. The Appellant stated that the Veteran's private physician stated he thought the Veteran had diabetes for a while. The Appellant stated that the years after the Veteran's service his attitude and life changed. She stated he had mood swings. The Appellant stated that Veteran's peripheral neuropathy in his feet did not begin until two years after being diagnosed with diabetes. The Appellant stated that she remembered the Veteran had symptoms of feeling faint around 1978. The Appellant testified that Veteran had gall bladder surgery in 1999. 

The Board finds that the Veteran's statements concerning his symptoms competent and credible. The Board finds that he was told he had borderline diabetes in service is competent but not credible. The Veteran's service treatment records indicated no note concerning diabetes. The Veteran had a urine test in 1974, which did not indicate diabetes. Therefore, the Board finds that that the Veteran's statement that he had borderline diabetes in service is not credible. 

The Board finds the Appellant's statement that she remembered the Veteran complaining about pain in his body and tingling in his feet competent. However the Board does not find the statement credible. The Appellant testified in September 2017 that the Veteran did not experience peripheral neuropathy until two years after being diagnosed with diabetes in 2010. Since the Appellant's statements are inconsistent they are not credible as to when the Veteran felt physical symptoms that were related to diabetes mellitus. The Board finds the Appellant's statement that she first noticed he became faint in 1978 competent and credible. However, there is no competent and credible evidence that such were signs or symptoms of diabetes diagnosed years later.  

The Board finds that the Veteran had a current diagnosis of diabetes. The Board finds that the Veteran did not have an in-service event, injury, or illness related to the Veteran's diabetes. The Veteran and the Appellant both stated that the Veteran had symptoms in some form in service, which they submit are related to the Veteran's diabetes. However, the Veteran's wife did not notice the Veteran feeling faint until 1978, four years after service. Further, the Veteran's service treatment records are silent for any mention of diabetes or other associated symptomatology. Finally, the Appellant stated the Veteran had a major gallbladder surgery in 1999, almost ten years before the Veteran was diagnosed with diabetes. It is significant that there is no objective evidence of diabetes at that time or until many years following service. Finally, the competent credible evidence indicates that the Veteran was diagnosed with diabetes well after one year of separation from service. Accordingly, the preponderance of the evidence is against the claim, and service connection for diabetes is denied.

The Board notes that VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. As the Board found that there is no evidence of diabetes until at the earliest 1978 (the reported time the Appellant noticed fainting symptoms) the Board finds that a VA examination is not required, despite the low bar of McLendon. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for diabetes mellitus for accrued benefits or substitution purposes is denied.


REMAND

Although the Board sincerely regrets any additional delay, further development is required before adjudication of the Appellant's remaining claim. 

The Appellant argues that the Veteran had symptoms of hypertension in service. The Veteran and the Appellant both stated that the Veteran had dizziness in service. The Veteran's treatment records indicate that at or around 1972 the Veteran was treated for dizziness and headaches. Therefore, in accordance with McLendon, supra, the Veteran requires a VA medical opinion to determine the etiology of the Veteran's hypertension. 

Accordingly, the case is REMANDED for the following action:

1. Obtain a VA medical opinion to determine the etiology of the Veteran's hypertension. The claims file must be provided for the examiner's review and the examination report should indicate that the claims file was reviewed. The examiner should provide the following opinion:

a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension had its onset in service, was manifest within one year of leaving active service, or is otherwise related to the Veteran's military service. 

b) The examiner should address the Veteran's service treatment records that indicated he complained of dizziness and headaches in 1972. 

c) The examiner should address the Veteran's and Veteran's wife's statements that he suffered from dizziness, swelling, and blurred vision in service.  

d) The examiner must provide a complete rationale for the opinion stated. If the examiner cannot provide any of the requested opinions without resorting to speculation, the examiner should indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Appellant and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.

The Appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs