Citation Nr: 1804620 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 08-29 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus (DM). 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension, to include as secondary to claimed diabetes and/or psychiatric disorder. REPRESENTATION Appellant represented by: Mary M. Long, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1978 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for diabetes, hypertension, and psychiatric disorders. The Veteran testified at a Board hearing before an Acting Veterans Law Judge in July 2011; however, that Acting Veterans Law Judge subsequently retired and is no longer employed by the Board. After being informed of her right to another hearing, the Veteran requested another hearing before a different Veterans Law Judge; consequently, she testified at a July 2015 hearing before a Veterans Law Judge who has since left the Board. In October 2017, VA sent a letter to the Veteran informing her that the Veterans Law Judge was no longer with the Board, and asking whether she desired to have another hearing. That same month, the Veteran responded that she did not wish to appear at another Board hearing. Therefore the Board will proceed to render a decision based on the evidence of record. Transcripts from both her Board hearings are of record. In decisions dated in October 2010, February 2012 and September 2015, the Board remanded the above issues. The Board finds the actions specified in the remand with regard to the Veteran's claim of entitlement to service connection for DM have been completed. Unfortunately, as discussed below, the Board finds another remand is necessary to address the Veteran's claims of entitlement to service connection for a psychiatric disorder and hypertension. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a psychiatric disorder and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's DM is not the result of an injury or disease incurred in or aggravated by active military service. CONCLUSION OF LAW The criteria for service connection for DM have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Subsequent to the resulting Board Remand, neither the Veteran nor her representative has raised any specific issues 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). Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the July 2015 Board hearing, the VLJ complied with these requirements. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Veteran claims entitlement to service connection for DM. The regulations pertinent to the Veteran's service connection claim (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309) were provided to her in the 2008 statement of the case. Since she has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran claims her DM began during military service; specifically during her pregnancy resulting in the birth of her son in March 1980. The Veteran avers that the private physician, Dr. J.B.R., who delivered her baby and followed her during her in-service pregnancy, treated her for diabetes with Metformin. Upon careful consideration of the Veteran's allegations in conjunction with all the evidence of record and applicable law and regulations, and for the reasons set forth below, the Board finds that the evidence weighs against the Veteran's service connection claim. Initially, while the Veteran has a current diagnosis of DM (see September 2003 VA treatment record noting a diagnosis of DM), the Board notes the record does not reflect any manifestations of diabetes within a year following discharge from service; therefore the presumptive service connection provision of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic disabilities are not applicable. Additionally, DM is not shown to be of service origin or related to service in any way. Service treatment records do not show treatment for or a diagnosis of DM. The Board acknowledges on her October 1984 separation Report of Medical History, the examiner indicated that the Veteran was hospitalized for two days following the birth of her son, and it was noted that "Mother is diabetic." The Veteran's mother submitted a statement that indicates that she (the Veteran's mother) was diabetic since age 35. The Veteran, however, has argued that "Mother" in that record refers to herself, and not her mother, and therefore demonstrates evidence of a diagnosis of diabetes during military service. While VA medical records mention her date of diagnosis was during service, the Board finds such statements were reliant on the claimed medical history recited by the Veteran. There is no indication that those medical providers relied on any significant independent review of the Veteran's medical history or received this information from any source other than the Veteran. Thus, the Board concludes that this evidence simply represents the Veteran's reported claimed medical history to her medical providers. Such evidence lacks probative value concerning the actual onset of diabetes. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). The Board is cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore her assertion as to any matter upon which she is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Although the Veteran is competent to report that she was diagnosed with DM during service, the Board does not find her credible. First, although the Veteran claims that the private physician who delivered her baby and followed her during her in-service pregnancy, Dr. J.B.R., treated her for diabetes with Metformin, she failed to comply with the RO's request for additional information to obtain those alleged treatment records. Service treatment records reveal the Veteran denied having diabetes in 1982 and 1983, which weighs heavily against the arguments she now makes of being treated for DM during her pregnancy. After the birth of her child she remained in service for a few years, and received treatment for a variety of medical conditions, never once recounting a history of diabetes. A few months after she delivered the baby, a gynecological consult record dated in August 1980 noted she had not had menses since delivery, but had "no other problems." She then saw a dietician in September 1980 who prescribed a diet for her to lose weight after her pregnancy; there were no indications in those records she needed any kind of diabetic diet. Second, the Veteran's separation examination does not support finding she had DM during service. She completed a report of medical history, noting her health was excellent, and denying having or ever having every condition noted, and reporting her only treatment was the delivery of her baby. It is reasonable to expect that she would report something as significant as being diagnosed with diabetes, if she had. The physician at separation noted the Veteran denied "all other significant medical history." Third, looking at her separation examination in context, the statement "mother is diabetic" clearly does not refer to the Veteran. In the remarks completed by the physician, he refers to the Veteran as "examinee". The argument that the physician also used the term "mother" to refer to her - rather than her mother - is simply not believable. Finally, in looking at her historical post-service medical records, the Veteran did not report her DM began in or was related to service until after she filed her original claim with VA. The fact that the Veteran did not report her diabetes began during service until after she filed her claim is important. All this evidence, in totality, weighs against the Veteran's credibility that such disability was the result of service. The Veteran submitted December 2006 and March 2007 psychiatric evaluations by Dr. R.T.M. that note after review of the Veteran's c-file and other records he found the Veteran had diabetes while in the Air Force. However, the Board finds this opinion to be contradictory to the contemporaneous medical evidence of record. Indeed, the first notation of a diagnosis of diabetes in the record was not until September 2003, which notes the Veteran was diagnosed with diabetes two months ago. Also, while a February 2008 medical examination by Dr. J.W.E. states after reviewing a "stack of medical records approximately 5 inches thick," it was his medical opinion that the Veteran was diagnosed with diabetes while she was in the military service," there is no indication Dr. J.W.E reviewed the Veteran's service treatment records prior to making this finding. Again, the actual service treatment records not only show no such treatment during service, but the denials by the Veteran at the time of separation of any significant medical history or any past treatment for diabetes weighs heavily against her claim. Again, to reiterate, medical records prior to the Veteran's claim for VA compensation do not show a history from her of diabetes being diagnosed or beginning during her military service. A March 2016 VA examiner found the Veteran's diabetes was not related to service, to include her noted pregnancy, because the examiner was unable to find elevated blood sugar notations during service. A subsequent April 2017 VA examiner found that upon review of the service treatment records, the Veteran's diabetes less likely than not incurred in or was caused by service, explaining that there was no indication from September 1979 (documenting positive pregnancy test) to August 1980 (six months postpartum) that the Veteran had diabetes. The examiner explained that a woman who was diabetic either before and/or during pregnancy would have had indications in her medical records of the condition, supplemental lab tests ordered and close monitoring of ongoing serum glucose levels, minimally and there was no evidence of increased monitoring/treatment of the Veteran for diabetes during pregnancy or postpartum per her medical records. Also, diabetes in pregnancy is a substantial complication and any prudent medical provider would have addressed it. "Thus the comment about 'Mother is diabetic' would not refer to this Veteran, but more likely than not to the Veteran's mother." Also the examiner found there was no evidence of diabetes in service or continuity of this condition after service. The Board finds the April 2017 VA opinion highly probative as the examiner provided a detailed rationale for the opinion that was clearly based upon a comprehensive and factually accurate review of the record evidence from all sources, to include the Veteran's lay statements and service medical records, which did not reflect treatment or a diagnosis of diabetes during or related to service. As noted in detail above, August and September 1980 records reflecting post-partum care and concerns about weight loss do not reference any history of diabetes; the Veteran denied any relevant history of any medical condition other than delivery of a child upon separation from service; and the physician conducting the separation examination referred to the Veteran as "examinee," clearly indicating the concurrent reference to "mother" was to the Veteran's mother, not the Veteran herself. Therefore, the evidence thus weighs against a finding that the Veteran has DM related in any way to service. Therefore, service connection must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for DM is denied. REMAND The September 2015 Board remand instructed the AOJ to obtain information from the Veteran regarding her alleged in-service stressors regarding airplane crashes/trainee pilot deaths while at Gila Bend Gunnery Base. Any relevant information received was to be investigated through official sources, including the National Personnel Records Center (NPRC) and Joint Service Records Research Center (JSRRC). The Veteran submitted stressor information in May 2016, noting between December 1983 and January 1985 she worked at Luke Airforce Base in Gila Bend, Arizona with the 832nd Combat Support Squadron (CSS) as an airfield management specialist and part of her job entailed dispatching information to pilots on the practice range. She heard pilots screaming that they were going to crash and some ended up crashing. In an April 2016 administrative decision the RO determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the JSRRC and insufficient to allow for meaningful research of Marine Corps or National Achieves and Records Administration (NARA) records. In an August 2017 statement, the Veteran's representative avers that the Veteran worked during the same timeframe as the 832nd CSS started participating in tactical exercises such as Amalgam Chief. The participants were classified as secret. Additionally, 832nd CSS provided command supervision of combat crew training programs, which included training foreign pilots. The Veteran's representative further states the possibility that the Veteran participated in a simulation rather than an actual crash and was never told otherwise; therefore leading the Veteran to believe there were crashes on the range and that someone was killed. In support of these findings, the Veteran's representative submitted information that revealed from July 1983 to September 1983, the 832nd Air Division was classified as secret, participated in numerous tactical exercises such as Amalgam Chief, was located at Luke Air Force Base in Arizona, and provided command supervision of combat crew training programs, which included foreign pilots. As the Veteran's representative provided evidence that the 832nd Air Division participated in tactical exercises at Luke Airforce Base during the time period the Veteran alleges actual or simulated crashes occurred, specifically between July 1983 and September 1983, the Board finds such information should be investigated through official sources to be confirmed. Also, the September 2015 Board remand instructed the AOJ to schedule the Veteran for a VA examination to determine the current nature and etiology of her claimed hypertension, specifically noting that the Veteran's blood pressure was shown to have spiked during labor. The examiner was instructed to discuss the Veteran's blood pressure readings in her service treatment records and address whether any elevated readings during military service or within one year of service were initial manifestations of any current hypertension. Pursuant to the September 2015 remand instructions, the Veteran was afforded a VA examination in March 2016, in which the examiner diagnosed the Veteran with hypertension and opined that her hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the Veteran gave a history of having elevated blood pressure during pregnancy, "I am unable to find medical records to support this statement." As the September 2015 Board remand found the Veteran's blood pressure was shown to spike during her labor and specifically instructed the examiner to discuss the Veteran's blood pressure readings in her service treatment records and address whether any elevated readings during military service or within one year of service were initial manifestations of any current hypertension, the Board finds a new VA examination is necessary. Although the September 2015 Board remand acknowledged the Veteran alleged her hypertension was secondary to her DM, as the Board is herein denying service connection for DM, as a matter of law secondary service connection is not warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Oklahoma City VA Medical Center since May 2017. 2. Contact the National Personnel Records Center (NPRC) and Joint Service Records Research Center (JSRRC) to obtain unit records from the 832nd Air Division from July 1983 and September 1983, to include documentation of any crashes or death to include simulations. If enough information does not exist in order to corroborate any alleged stressor, such should be noted in a formal finding of unavailability and associated with the claims file; the Veteran should also be notified. 3. Also, schedule the Veteran for a VA examination with an appropriate examiner in order to ascertain the current nature and etiology of her claimed hypertension. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should state whether the Veteran has hypertension. Then, the examiner must opine as to whether any hypertension more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of her military service, to include the noted pregnancy therein. The examiner should specifically discuss the Veteran's blood pressure readings in her service treatment records and the February 1980 private treatment records that revealed her blood pressure increased during pregnancy. The examiner should address whether any elevated readings during military service or within one year of service are initial manifestations of any current hypertension. The examiner should also address the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should specifically address the Veteran's contentions that her increased blood pressure during and after her pregnancy in service is the cause of her current hypertensive disorder. Next, the examiner should opine whether the Veteran's hypertension was more likely, less likely or at least as likely as not caused by the Veteran's claimed psychiatric disorder. Finally, the examiner should opine whether the Veteran's hypertension has been aggravated (i.e., permanently worsened beyond the normal progression of that disease) by the Veteran's claimed psychiatric disorder. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the claims. If any benefit sought on appeal is not granted, the Veteran and her representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs