Citation Nr: 1805630 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-07 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, to include as due to isoniazid (INH) therapy in service. 2. Entitlement to service connection for a bilateral upper extremity disability (claimed as arthritis). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to November 1977, and from February 2003 to July 2003, with various periods of active and inactive duty for training (ACTDUTRA and INACTDUTRA) while serving in the Reserves from October 1980 to October 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Salt Lake City, Utah Department of Veteran Affairs (VA) Regional Office (RO). In April and June 2017 rating decisions, the Veteran was awarded service connection for rhinitis (claimed as seasonal allergies/respiratory condition), plantar fasciitis to include hallux valgus, hypertension, kidney disease, a left ankle disability and degenerative disc disease and degenerative joint disease of the lumbar spine. This constitutes a full grant of the benefits sought with regard to these claims. As such, these issues are no longer before the Board. In March 2014 and September 2016, these issues were remanded for further development. The Board notes that in October 2016 correspondence, the Veteran asserted he has bilateral knee disabilities that are due to service. The Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The Veteran's service connection claim for a bilateral upper extremity disability (claimed as arthritis) 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 of record is against a finding that the Veteran's diabetes mellitus had its onset in, or is otherwise related to the Veteran's period of active duty, to include periods of ACDUTRA and INACDUTRA while serving in the Reserves. CONCLUSION OF LAW Service connection for diabetes mellitus type II is not established. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist following the development ordered in the Board's last remand. 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). II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2012). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2017). The term "active military, naval or air service" is further defined as (1) active duty or a period of ACTDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of INACTDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101 (24) (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection may also be granted for any disease 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) (2017). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.304 (2017). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Alternatively, when a disease at 38 C.F.R. § 3.309(a) (2017) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b) (2017). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) (2017). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active duty for training (ACDUTRA) includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(c), (d) (2017). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA, but the appellant is not entitled to the application of the presumption of soundness or the presumption of aggravation except for his active duty. 38 U.S.C. §§ 101 (24), 106, 1110 (2012). Claims based on a period of ACDUTRA or INACDUTRA are not entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 (2017), nor are they entitled to the presumption of aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Appellants who established "Veteran" status for a prior period of service may be entitled to the presumption of soundness for a subsequent period of service under certain conditions. Id. at 45-46. For claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Id. at 48. 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 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diabetes Mellitus, Type II As an initial matter, there is no dispute that the Veteran has a current disability of diabetes mellitus, type II. See, e.g. the December 2016 VA examiner's report. The Veteran contends that his diabetes is related to service, to include INH therapy in 2003. For the reasons explained below, the Board finds that the evidence is against a finding that such a relationship exists. The Board initially notes that there are no in-service treatment reports indicating onset of, or treatment for diabetes during a period of active duty, ACDUTRA or INACDUTRA. A December 2016 VA examiner reviewed the Veteran's medical records, and concluded that there was no evidence of the Veteran having any type of diabetes, in service. While elevated glucose levels have been shown in the record since 2002, and private and VA treatment reports have at times noted a diagnosis of diabetes since 2007, the December 2016 VA examiner reviewed the Veteran's file and confirmed that the Veteran's diabetes did not manifest under 2014, well after his final period of service. Indeed, the December 2016 examiner explained that private treatment records from January 2007 to October 2014 indicate blood glucose and hemoglobin A1C levels consistent with impaired glucose tolerance, and not diabetes mellitus. He explained that the assertion in private treatment records that the Veteran was diagnosed with diabetes mellitus in 2007 was based on speculation without any medical evidence. In rendering his opinion the examiner looked at the Veteran's laboratory data dated in June 2009 indicating blood glucose of 124 and hemoglobin A1C of 6.0 percent, June 2010 indicating blood glucose of 140 and hemoglobin A1C of 5.6 percent, and September 2010 indicating blood glucose of 139 and hemoglobin A1C of 5.5 percent. The examiner found that these blood glucose readings were not consistent with diabetes mellitus, but rather consistent with impaired glucose tolerance. He went on to point out that private treatment records indicate blood glucose and hemoglobin A1C levels consistent with diabetes mellitus in 2014 and 2015. These reports included private treatment records dated October 2014 indicating blood glucose of 159 and hemoglobin A1C of 6.7 percent and February 2015 records indicating blood glucose of 215 and hemoglobin A1C of 7.5 percent. The December 2016 VA examiner's opinion is supported by June 2007 and January 2008 treatment notes from Dr. R.N.M. noting that the Veteran had glucose intolerance that improved with lifestyle changes with no mention of diabetes mellitus II. The Board finds the December 2016 VA examiner's opinion to be the most probative evidence of record with respect to date of onset of disability, as it includes review and analysis of the Veteran's entire medical history, to include laboratory results, and discussion of the clinical significance of those laboratory results. The opinion has support in the record, as prior physicians, to include Dr. R.N.M., have identified a probable glucose intolerance without a diagnosis of diabetes. Thus, there is no indication that the Veteran's diabetes mellitus manifested within one year following a period of active duty service, and service connection is not warranted on a presumptive basis. With respect to nexus, the Veteran contends that his diabetes disability is related to in-service INH therapy. However, the December 2016 VA examiner explained that INH does not cause diabetes mellitus; therefore, the Veteran's current diabetes mellitus II is less likely than not due to in-service INH therapy. By way of rationale, the examiner noted that the side effects of INH treatment included: clumsiness or unsteadiness, loss of appetite, nausea or vomiting numbness, tingling, burning or pain in hands and feet, unusual tiredness or weakness, and yellow eyes or skin. He reported some rare side effects to include: blurred vision or loss of vision, with or without eye pain, convulsions (seizures), fever and sore throat, joint pain, mental depression, mood or other mental changes, skin rash, and unusual bleeding or bruising. He indicated that a report of medical history dated January 1986 was positive for family history of diabetes mellitus in mother, suggesting a genetic predisposition, and opined against a relationship between the onset of diabetes in 2014 and his in-service INH therapy. The Board has considered the Veteran's private treatment records from Dr. K.L. noting that the Veteran's diabetes mellitus II was diagnosed in January 2007; however, Dr. K.L. provided no opinion as to the etiology, causation or progression of this disability. As explained above, the December 2016 VA examiner opined that the January 2007 diagnosis was premature based on a longitudinal review of the Veteran's lab results, and opined against a relationship between INH therapy and diabetes. The December 2016 VA examiner's opinions are supported by a cogent medical explanation. The Veteran has not identified or submitted any competent evidence, to include a medical nexus, which demonstrates his diabetes mellitus II, is related to active service or INH treatment during service. The Board notes in passing that even if diabetes was diagnosed in January 2007, the evidence of record fails to show the Veteran was serving during a period of ACDUTRA during that time period. The Board has considered the Veteran's lay assertions that his current diabetes mellitus is due to INH therapy. While the Veteran is competent to report symptoms that he perceived through his own senses, he is not competent to offer an opinion as to an etiology of diabetes mellitus due to the medical complexity of the matter involved. Diabetes mellitus II requires specialized training for a determination as to diagnosis, causation, and progression, and are therefore not susceptible to lay opinions on etiology or aggravation. Thus, the Veteran is not competent to render an opinion or attempt to present lay assertions to establish etiology of these disorders. In sum, most probative evidence demonstrates that actual onset of diabetes mellitus II was in 2014, and that the disability was not caused by, or is otherwise etiologically related to a period of active duty service, to include his INH treatment during service. Because the probative evidence does not show that the Veteran's current diabetes mellitus II was related to his active duty service, the nexus element is not met. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to isoniazid (INH) therapy in service, is denied. (CONTINUED ON NEXT PAGE) REMAND The Board regrets having to remand the remaining issue another time. However, additional development is required before a fully informed decision on the merits can be made. The Veteran claims entitlement to service connection for bilateral upper extremity disabilities, to include as due to in-service injuries while playing football. The Veteran has submitted records of private treatment showing diagnoses of impingement of the bilateral shoulders, and mild degenerative changes at the right glenohumeral joint. See a June 15, 2009 treatment report from Dr. M.T.A. Unfortunately, the Veteran's shoulders were not examined following the Board's last remand, and such examination is necessary to evaluate whether the Veteran's shoulder disabilities are related to injuries sustained in service. The Veteran's hands and elbows were examined in December 2016, and the examiner opined against a relationship between the diagnosed disabilities and service. Pertinently however, the examiner noted a history of left carpal tunnel syndrome and left ulnar mononeuropathy, but concluded that such were not related to service because the disability was diagnosed beyond the presumptive period after military service. On remand, the Veteran's hands and elbows should be examined to assess whether the Veteran's upper extremity neurological conditions are related to service, notwithstanding the fact that they were diagnosed subsequent to service. See 38 C.F.R. § 3.303(d). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit, or authorize VA to obtain any additional records of treatment not already of record relevant to his upper extremity disabilities. Obtain any identified records. 2. Schedule the Veteran for VA examinations of the hands, elbows and shoulders. The examiner should review the claims file, and take a history from the Veteran as to the progression of his upper extremity conditions. Upon review of the Veteran's medical history, interview of the Veteran and examination, the examiner should respond to each of the following: a.) Please identify, by diagnosis, each upper extremity disability found-to specifically include orthopedic and neurological disabilities-affecting the shoulders, elbows, wrists and hands. b.) For each disability diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability was incurred or aggravated during a confirmed period of active duty, ACDUTRA, or INACDUTRA? The examiner should specifically address whether such disabilities are related to wear and tear on the body from playing football in service. All opinions should be supported by a clinical explanation. 3. Readjudicate the issue on appeal. If the benefit sought is denied, issue the Veteran and his representative a supplemental statement of the case, and afford them an opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs