Citation Nr: 1805428 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-38 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a cardiovascular accident (claimed as a stroke), to include as secondary to the diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1977 to June 1981 and from November 1982 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, inter alia, denied service connection for diabetes mellitus and a cardiovascular accident (claimed as a stroke). In April 2017, the Board remanded these matters for further development. In September 2017, the Veteran and his wife testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a cardiovascular accident (claimed as a stroke) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's diabetes mellitus had its onset within the one year presumptive period for this chronic disease. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for diabetes mellitus on the basis of the presumption of service connection for chronic disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Given the favorable action taken below concerning the claim being decided herein, the Board will not discuss further whether those duties have been accomplished. The Veteran contends that his diabetes mellitus had its onset within a year of service. 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. §1131; 38 C.F.R. § 3.303 (a). "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). In relevant part, 38 U.S.C. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). The regulations indicate that no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. However, this will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In an April 1998 service treatment record (STR), the Veteran complained of gaining a lot of weight in the previous three years. In a different April 1998 STR, the Veteran was instructed to follow a low fat, heart healthy diet and was provided with appropriate written material. In a December 7, 1999 private treatment record, the clinician noted that the Veteran had increased thirst, urination, and fatigue. The clinician diagnosed the Veteran with diabetes mellitus. The Veteran's last day of service was November 30, 1998. During a September 2017 Board hearing, the Veteran's wife testified that she noticed that while her husband was on active duty, he had frequent urination and excessive thirst. The above evidence reflects that the Veteran was first diagnosed with diabetes mellitus a few days after the one-year presumptive period. Significantly, however, 38 C.F.R. §3.307(c) specifically provides that a diagnosis of a chronic disease need not be within the one year presumptive period, rather it is sufficient if there is acceptable medical or lay evidence of characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. That is precisely the situation in the present case. There is lay evidence that the Veteran experienced symptoms indicative of diabetes, such as frequent urination and excessive thirst, within a year of service, and those same symptoms were the basis for a diagnosis of diabetes shortly after the presumptive period. The evidence thus reflects that it is at least as likely as not that diabetes manifested within the one year presumptive period. This same evidence indicates that the Veteran was given diabetes education and prescribed Metformin, thus indicating that the disease manifested to a compensable degree. 38 C.F.R. §4.119, Diagnostic Code 7913 (2017). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for diabetes based on the presumption of service connection for chronic diseases is warranted. 38 U.S.C. §5107(b); 38 C.F.R. §3.102. ORDER Service connection for diabetes mellitus is granted. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability, the record indicates that the disability or symptoms may be associated with active service or a service connected disability, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2017). In this case, VA treatment notes contain diagnoses of a stroke. Thus, there is competent evidence that the Veteran has a current disability. In a September 2017 Board hearing, the Veteran testified that Dr. Maddali linked his stroke to his diabetes mellitus. The Veteran stated that Dr. Maddali only conveyed this to him verbally. While a Veteran is competent to report a contemporaneous diagnosis, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Veteran did not relay any reasoning that would give the medical opinion probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran also stated that it would be difficult for him to get Dr. Maddali to provide a written statement as he has since relocated to another state and that Dr. Maddali left the private practice several years ago. Based on the foregoing, the evidence indicates that the Veteran has a current diagnosis of cardiovascular accident (claimed as a stroke) that may be associated with his service connected diabetes mellitus. Therefore, a remand is warranted for the Veteran to be scheduled for a VA examination to determine the nature and etiology of his cardiovascular accident. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination in connection with his claim of entitlement to service connection for cardiovascular accident (claimed as a stroke). The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should then opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cardiovascular accident was either (a) caused or (b) aggravated by his service-connected diabetes mellitus. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs