Citation Nr: 18142368 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 09-08 887 DATE: October 15, 2018 ORDER Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for type I diabetes mellitus (DMI) is denied. FINDINGS OF FACT 1. The most probative evidence weighs against a finding that DMI had onset during active service, manifested within one year of separation from service, or is otherwise related to active service. 2. The most probative evidence weighs against a finding that a right foot condition had onset during active service, manifested within one year of separation from service, is otherwise related to active service, or was caused or aggravated by the Veteran’s service-connected left foot condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for DMI have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right foot condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to February 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2009 videoconference hearing before a Veterans’ Law Judge (VLJ) by video teleconference. However, after the January 2010 hearing but prior to the March 2014 decision (now vacated) the VLJ who heard the Veteran’s testimony in September 2009 retired. In February 2014, the Board offered the Veteran an opportunity to have a hearing before another VLJ who would participate in the decision on his appeal. In March 2014, the Veteran responded that he did not wish to have another hearing before the Board. See 38 U.S.C. §7107(c); 38C.F.R. §20.707, 20.717. A transcript of the September 2009 hearing has been associated with the claims file. In March 2014, the Board, in pertinent part, denied entitlement to service connection for DMI and a right foot condition. The Veteran appealed the denial of these claims to the U.S. Court of Appeals for Veterans Claims (CAVC). In a September 2016 memorandum decision, CAVC vacated that part of the Board’s March 2014 decision that denied service connection for DMI and a right foot condition, and remanded the claims for development consistent with its decision. In May 2017, the Board remanded this case for further development and there has been substantial, if not full, compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97 (2008). That development has been completed and the Veteran’s case has been returned to the Board for further appellate consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). DMI and peripheral neuropathy may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of 10 percent or more within one year of the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for chronic disease may be established through a showing of continuity of symptomatology since service. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection on a secondary basis may be granted for a disability which is proximately due to or the result of or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Diabetes Mellitus The Veteran asserts that his currently diagnosed DMI was incurred in service. The crucial inquiry is whether the Veteran’s DMI, was incurred in or is otherwise related to his service. The Board concludes that the preponderance of the evidence indicates it was not. An October 2009 letter from the Veteran’s treating VA physician indicates that it is very likely that neuropathic symptoms (i.e., feet pain and discomfort) reported by the Veteran began prior to his diagnosis of diabetes. In support of this medical conclusion, the physician stated that neuropathic symptoms can precede the actual diagnosis of diabetes. In February 2010, the Veteran underwent a VA examination and after examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s in-service complaints of neuropathy did not mark the onset of his DMI. The VA examiner noted that a review of the medical literature only demonstrated that symptoms of peripheral neuropathy could precede the diagnosis of DMI but not the actual existence of the disease process. The VA examiner further noted that the Veteran was diagnosed with DMI, which tends to have a more rapid onset then type II diabetes mellitus (DMII). The VA examiner opined that it was unlikely for an individual with DMI to have symptoms for a year prior to the diagnosis. Further, the February 2010 examiner opined that it was less likely as not the Veteran’s DMI was caused by or a result of his service or had its onset during service. The examiner rationalized that the Veteran had normal endocrine evaluation and negative urinalysis at the time of his separation examination in January 1975. The examiner noted that the Veteran was diagnosed with DMI in April 1977 (or two years after separation), when he presented with weight loss, polyuria, polydipsia, and polyphagia. In July 2017, the Veteran underwent another VA examination pursuant to the Board’s May 2017 remand directives. After examining the Veteran and reviewing the claims file, the July 2017 VA examiner found that the Veteran’s DMI was less likely than not incurred in or caused by active service. The examiner also found that it was less likely as not that DMI manifested to a compensable degree within one year after his discharge from service in 1975. The examiner noted that the Veteran separated from service in February 1975 but was not formally diagnosed with DMI until April 1977, at which time he exhibited the “classic” presentation of DMI, specifically with polydipsia, polyuria, and weight loss along with a blood sugar reading of 360. The examiner indicates that he combed the Veteran’s service treatment records for objective data consistent with the Veteran’s reports that his DMI began in service or within a year of separation. The examiner noted that the Veteran’s weight, vision, urinalysis, and blood pressure were normal on both his entrance and separation examinations. He also indicated that there was no evidence of “spells” of dehydration, glucosuria, hypoglycemia, or transient hypoglycemia in the Veteran’s service treatment records. The examiner noted the Veteran’s contention of impaired wound healing with a right foot injury in service. The examiner explained that the Veteran’s wound was treated over a span of three to four weeks. He was placed on a temporary seven-day light duty profile and that he had normal wound dressing changes and antibiotics administration of the wound thereafter with no further treatment. The examiner also noted that the wound was considered “dirty” and, thus this was not an unusual or impaired amount of time to heal. The examiner indicated that no right foot problems were noted on the Veteran’s separation examination. The examiner further reported that there was no medical evidence available that noted any objective signs of DMI (i.e., polydipsia, polyuria, and weight loss) between 1972 and April 1976. The Board gives greater probative weight to the opinions of the February 2010 and July 2017 VA examiners, because their opinions are based on a review of the entire claims file and because they provided clear and thorough explanations in support of their respective opinions. The Board also has considered whether service connection for DMI would be warranted pursuant to the provisions of 38 C.F.R. § 3.303(b), based on chronicity and continuity. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board recognizes that DMI is a chronic disease listed under 38 C.F.R. § 3.309(a). As discussed, however, there is no competent or credible evidence to suggest that any symptoms experienced in service and thereafter were related to DMI, which did not manifest to a compensable degree until 1977, or two years after service. Moreover, the Board finds any such contentions significantly outweighed by the Veteran’s weight, vision, urinalysis, and blood pressure, which were normal at separation. As such, service connection based on the provisions of 38 C.F.R. § 3.303(b) is not warranted. Thus, the Veteran had no credible in-service evidence of DMI or a continuity of symptomatology since service. In addition, the Board finds the Veteran’s assertions attributing his DMI to service to be outweighed by the medical evidence of record. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for DMI, must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Right foot condition The Veteran asserts his current right foot problems were incurred in service. He has also alleged that service connection for peripheral neuropathy of the right foot is warranted as secondary to nonservice-connected DMI and/or service-connected left foot condition. At the outset, the Board notes that service connection for a right foot condition secondary to DMI is not warranted, as the preponderance of the competent medical evidence indicates that DMI was neither incurred in nor otherwise related to service. As such, consideration for service connection on a secondary basis is only warranted for the Veteran’s service-connected left foot condition. The Board notes that the Veteran has current diagnoses of various right foot conditions, including peripheral neuropathy. Therefore, the crucial inquiry is whether the Veteran’s right foot condition was incurred in or is otherwise related to his service or is proximately due to or the result of the Veteran’s service-connected left foot condition. The Board concludes that the preponderance of the evidence is against the claim. The Veteran’s treating physician, as well as the February 2010 and July 2017 VA examiners opined that the Veteran’s current right foot conditions were etiologically related to his DMI. The July 2017 VA examiner further opined that the Veteran’s right foot condition had no relationship to his left foot condition. The Board gives great probative weight to these opinions, especially the February 2010 and July 2017 VA medical opinions, as they are based on a review of the entire claims file and because they provided clear and thorough rationales. The Board notes that the medical evidence fails to demonstrate that the Veteran’s peripheral neuropathy of the right foot manifested to a compensable degree within a year of separation from active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, the Board finds the Veteran’s assertions attributing his right foot condition to service and his service-connected left foot condition to be outweighed by the medical evidence of record. The claims file does not contain any evidence from a competent medical professional that his right foot condition was related to service or service-connected left foot condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for a right foot condition must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel