Citation Nr: 18159906 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 08-26 465A DATE: December 20, 2018 ORDER Service connection for hypertension is denied. Service connection for diabetes mellitus, type II, is denied. REMANDED The issue of entitlement to service connection for acquired pes planus (right foot disability manifested with pain) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident in service and was not present to a compensable degree within one year of separation from active service. 2. Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident in service and was not shown within one year of separation from active service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service and incurrence or aggravation of hypertension during active service may not be presumed. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Diabetes mellitus, type II, was not incurred in or aggravated by active service and the incurrence or aggravation of this disorder during active service may not be presumed. 38 U.S.C. §§ 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Navy from October 1988 to March 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service Connection for Hypertension and Diabetes The Veteran asserts that he has hypertension and diabetes that are the result of his service. He has not alleged in-service onset of either disorder. In the October 2018 Informal Hearing Presentation, the Veteran’s representative noted that the service treatment records were silent or negative for complaints, diagnosis or treatment of diabetes mellitus type II and/or hypertension. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 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 such as hypertension and 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; 38 C.F.R. §§ 3.307, 3.309. The Veteran’s service treatment records are negative for complaints of, or treatment for, symptoms of hypertension or diabetes. According to a July 2006 VA examination, the Veteran reported that he had been diagnosed with hypertension in 2000. During that same exam, it was reported that the Veteran was diagnosed with diabetes in 2003. He was taking glipizide for control of his glucose levels, which still remained elevated. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested hypertension and/or diabetes mellitus to a degree of 10 percent within the one year following his discharge from service in March 1991. Post-service clinical records document that the Veteran was diagnosed with hypertension in 2000. As mentioned above, a July 2006 VA examination report indicates that the Veteran had been diagnosed with diabetes mellitus in 2003. Moreover, there is no evidence of continuity of symptomology. As such, presumptive service connection for hypertension and/or diabetes mellitus is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board also finds that the preponderance of the evidence is against the Veteran’s claims for direct service connection for either hypertension or diabetes. Again, the Veteran’s treatment records contain no indication of diabetes or hypertension in service. The Veteran, by his own indication, was diagnosed with hypertension in 2000. He was diagnosed with diabetes in the early 2000s. In a July 2006 VA examination, he claimed to be diagnosed in 2003. In a November 2009 VA examination, he indicated that he had been diabetic for “7-8 years”. Neither chronology provides a link to the Veteran’s time in service and there is no evidence of any in-service incurrence or aggravation of either hypertension or diabetes. While the Veteran has asserted in his 2008 appeal that his diabetes had been a problem “way before 2003”, there is no clinical evidence to support such a claim. There is no clinical evidence establishing that an event, injury, or disease related to the Veteran’s diabetes or hypertension occurred in service. Moreover, there is no clinical evidence to establish the manifestation of either of these diseases during an applicable presumptive period. As a result, the VA is not required to provide a medical examination to determine the etiology of the Veteran’s diabetes and hypertension or the likelihood of medical nexus between an in-service event and those disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Veteran has contended that his hypertension and/or diabetes mellitus is the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s hypertension and/or diabetes mellitus to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current symptoms, the Board accords his statements regarding the etiology of his hypertension and diabetes little probative as he is not competent to opine on such a complex medical question. Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran are non-probative. Therefore, hypertension and/or diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of service discharge. Consequently, service connection is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for hypertension and/or diabetes mellitus. As such, that doctrine is not applicable in the instant claim, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons below, the Board finds that a medical opinion is necessary in order to determine the nature and etiology of the Veteran’s claimed right foot disorder. The Veteran and his representative contend that the Veteran injured his right foot during service—a claim supported by the record. In April 1990, the Veteran complained of pain in his right foot, which had been ongoing for approximately one month. In an appellate brief for the Board, the Veteran’s representative further contends that the Veteran’s military footwear is related to his current foot pain. The Veteran had a childhood injury to his right foot, requiring surgery. This injury and pes planus were noted on his April 1988 service entrance exam. The Veteran also sustained post-service injuries to his foot, including a motor vehicle accident and injuries received at a private mental facility. VA examination records describe several potential diagnoses and treatments related to the Veteran’s foot disorder and ongoing pain. These include evaluation of neuropathy symptoms and a tarsal tunnel procedure in 2014. With that said, there is no etiology opinion specifically addressing the cause of the Veteran’s right foot disorder and pain or any potential nexus to his military service. Therefore, on remand, such an opinion addressing the etiology of the foot disorder (and related pain) should be obtained. Accordingly, the matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to his claim for right foot pain. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records from June 2018 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran should be scheduled for a VA examination by a podiatrist or similarly trained medical professional to determine the etiology of the Veteran’s right foot disorder. A complete history of any pre- and post-service injuries (such as any motor vehicle accidents, injuries playing basketball while at the private mental facility, etc.) should be obtained from the Veteran. Prior to the examination, the examiner(s) should review the claims folder, including a copy of this remand, the appellant’s service treatment records, and specifically, the April 25, 1990 service treatment record addressing the Veteran’s right “foot problem” that, at the time, had been going on for a month. All indicated tests and studies should be performed and all clinical findings reported in detail. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a.) Does the Veteran currently have a disability manifested as pes planus or some other disorder of the right foot? Is any such disability separate and distinct from any pre-existing pes planus noted on the Veteran’s entrance into service in April 1988? (b.) If the examiner finds that the Veteran’s current right foot disability is not separate from any right foot pes planus he had prior to his entry to active service in April 1988, then is there clear and unmistakable evidence that the pre-existing pes planus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the Veteran’s right foot pes planus, was such increase clearly and unmistakably due to the natural progress of the disease? (c.) For any diagnosed disorder of the right foot, is it at least as likely as not (50 percent or greater probability), that such disorder had its onset during any period of service, or is it otherwise related to such period of service? The examiner should specifically address the complaints of right foot pain from April 1990. A rationale should be provided for all opinions rendered. The examination report should indicate if the examiner reviewed the Veteran’s medical records. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel