Citation Nr: 1818436 Decision Date: 03/26/18 Archive Date: 04/04/18 DOCKET NO. 11-09 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. He died in March 2016 with his perfected claim pending on appeal. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which found that new and material evidence had not been presented to reopen a previously denied claim of entitlement to service connection for diabetes mellitus. In May 2011, the Veteran testified at a Board video hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In August 2013, the Board, in pertinent part, reopened the Veteran's claim of entitlement to service connection for diabetes mellitus and remanded the underlying claim for further development. In May 2016, the Board, upon receiving notice of the Veteran's death, dismissed the claim without prejudice and informed the appellant the she could request to be substituted as the claimant. For claimants who died on or after October 10, 2008, as in the instant case, the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C. § 5121A, which permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. Here, the appellant, who is the Veteran's surviving spouse, requested to be substituted for the Veteran pursuant to 38 U.S.C. § 5121A. In a December 2017 letter, the RO granted the appellant's request for substitution. Accordingly, the Board will address the claim with the appellant as the substituted party. In a February 2018 brief, the appellant's representative noted that the appellant filed a January 2017 notice of disagreement to a September 2016 decision denying entitlement to burial benefits. The representative requested that the Board remand that issue for issuance of a statement of the case in accordance with Manlincon v. West, 12 Vet.App. 238 (1999). However, a review of the claims file shows that the appellant was awarded burial benefits in a February 2017 decision. Additionally, she was informed in a February 2018 letter that the February 2017 award action was considered a full grant of benefits for that issue. In light of the foregoing, the Board declines to exercise jurisdiction over the burial benefits issue as it is no longer on appeal. FINDING OF FACT The Veteran's diabetes mellitus was not manifested for many years after service, and it has not been shown by competent and probative medical evidence to be etiologically related to any in-service event or injury. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, VA's duty to notify was satisfied by way of a November 2009 letter to the Veteran prior to his death. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran and the appellant. Neither the Veteran nor the appellant identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate the appeal. Additionally, the Board finds that there has been substantial compliance with its previous remand directives, to include providing the Veteran with a VA examination and obtaining an etiology opinion. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The appellant seeks entitlement to service connection for diabetes mellitus, which she contends had its onset during the Veteran's service. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (2012); 38 C.F.R. 3.303(a) (2017). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). In addition, for veterans who have served 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. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Where a veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Diabetes is included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). 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). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). B. Factual Background Prior to his death, the Veteran asserted that he was diagnosed with glucose intolerance in service during a 1965 appendectomy and post-service during a March 1987 spinal surgery. He asserted that these instances of high blood sugar were indicative of his eventual diagnosis of diabetes mellitus in 1999. Service treatment records show that the Veteran was hospitalized for appendicitis in January 1965. A hospital report shows that fasting blood sugar on admission was 162 with IV running. A fasting blood sugar without benefit of IV was 124, and a repeat fasting blood sugar was 86. A glucose tolerance curve was completely within normal limits. The Veteran's discharge examination in September 1965 showed urinalysis was negative for sugar and there was no evidence of elevated glucose. No diagnoses of glucose intolerance or diabetes mellitus were noted during service. Private treatment records show that the Veteran underwent spinal surgery for a probable herniated nucleus pulposus L5-S1 in March 1987. Records relating to this surgery and post-operative care show glucose readings of 105, 97 and 96. These readings were noted as falling within the expected normal range. There was no other indication given regarding any diagnoses of glucose intolerance or diabetes mellitus type II. A review of the Veteran's VA outpatient treatment records reveal that in July 1999 that the Veteran had a normal fasting blood sugar of 107. The assessment was normal fasting blood sugar with no evidence of diabetes mellitus. In June 2000, the Veteran's fasting blood sugar was elevated at 257 and he received his first diagnosis of diabetes mellitus type II, which was noted as "evolving over the past year from a long-standing state of abnormal glucose tolerance." The Veteran was afforded a VA examination in January 2011. The examiner noted a diagnosis of diabetes mellitus. The examiner opined that the Veteran's current diabetes mellitus was less likely as not related to the high glucose levels during service when the Veteran was hospitalized for appendicitis. The examiner explained that the Veteran would have likely had complications or residuals if diabetes first manifested in 1965 but was not formally treated until 1999, a period of 34 years. The examiner further indicated that a 34 year period without proper treatment would have impacted throughout the body and would be evidenced by end organ damage; however, the Veteran was on oral anti-diabetic medication, without any residuals or diabetic complications such as retinopathy, nephropathy, or kidney damage. During the May 2011 Board hearing, the Veteran testified that he was diagnosed with glucose intolerance during an appendectomy in service. He further stated that he was told by an anesthesiologist at the time of his March 1987 spine surgery that he should see his local physician regarding his high sugar levels. The appellant testified that she was present at the Veteran's in-service appendectomy and overheard the doctors say that he had high glucose. Additionally, the Veteran's representative testified that he is a registered nurse who has worked with hundreds of diabetic patients. The representative testified that, in his opinion, there are enormously different levels of diabetic conditions. He further stated that, despite the finding of the January 2011 examiner that the Veteran would have had extensive residuals and organ damage if he had been actually diagnosed with diabetes in 1965 with no treatment until 1999, it is a very strong possibility that the Veteran did have a mild diabetic condition while in service, and after service he continued to have an asymptomatic manifestations until his condition worsened with age in 1999. The representative also provided that there is well-documented evidence of instances in which people have diabetes, but are unaware of any symptoms. The Veteran testified that, due to lack of health insurance and his wife's medical expenses, he did not see a doctor from the time he left the service in 1965 until his friend got him an appointment at the VA in 1993. The Veteran was afforded a VA examination in September 2013. The examiner confirmed the diagnosis of diabetes mellitus. The Veteran reported that he was diagnosed with glucose intolerance in service and that he was diagnosed with diabetes in 1998. He also reported that he did not go to the doctor much between 1965 and 1998 due to financial reasons so he did not know if he had signs of diabetes during that time. The examiner opined that the Veteran's diabetes was less likely as not incurred in or caused by service. The examiner specifically indicated that the current diabetes mellitus condition did not start in service. The examiner noted that the elevated glucose of 162 on admission for the appendectomy was with IV running. The examiner explained that the IV most likely had D5 (dextrose) in it, which is sugar, because it is typical to give someone going into surgery D5 through IV. The examiner noted that this would cause elevated blood sugar, and "[t]hey followed that up with subsequent FBS and was found to be normal." The examiner also noted that there was no mention of needing follow-up with primary care for glucose intolerance after the appendectomy. The examiner indicated that the labs from the spinal surgery in 1987 showed normal blood sugars because those labs were actually a postprandial, not fasting. The examiner also opined that "[t]here is no objective evidence of long standing glucose intolerance." The examiner explained that 20 to 50 percent of individuals who have glucose intolerance are overweight and develop diabetes within 10 years, while the remainder will return to normal glucose tolerance. The examiner noted that the Veteran was not overweight in 1965, so even if he had glucose intolerance in service, he would not have developed diabetes. C. Analysis As an initial matter, the Board notes that the Veteran was diagnosed with diabetes mellitus. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service treatment records show that the Veteran had an elevated glucose reading in January 1965. As such, there is evidence of an event, injury, or disease in service. Accordingly, the issue turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran's diabetes mellitus was related to his military service or is or service origin. Taken together, the January 2011 and September 2013 VA examiners' opinions are persuasive and probative evidence against the claim of service connection for a diabetes mellitus. They were based upon a thorough review of the Veteran's claims file, pertinent medical records, and examination of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file, and the thoroughness and detail of the opinion). Based on this review, the VA examiners provided compelling explanations for why the Veteran's diabetes did not manifest in service and was not otherwise related to the elevated glucose in service. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (VA examination report "must be read as a whole" to determine the examiner's rationale). Specifically, the January 2011 VA examiner concluded that the elevated glucose level in 1965 could not have been the first manifestation of the Veteran's current diabetes, which was not diagnosed and treated until 1998, because a 34-year period without proper treatment would be evidenced by end organ damage, whereas the Veteran was only on oral medication without any residuals or diabetic complications. The September 2013 VA examiner concluded that diabetes did not have its onset in service because the elevated glucose level in service was likely due to dextrose in the IV and because there was no evidence of longstanding glucose intolerance. Because the examiners had an accurate history, medical expertise and training, and provided sound rationales for the medical opinions, the January 2011 and September 2013 VA medical opinions are of significant probative value and weigh against a finding that diabetes mellitus is of service origin. There are no contrary medical opinions of record. The Board has also considered the Veteran's assertions that his diabetes had its onset in service or is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology or onset of diabetes, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed diabetes is related to an incident of service, requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Hence, his assertions in this regard have no probative value. The Board also acknowledges that the appellant was a nurse in service. This background must be taken into account when evaluating her opinions. See Goss v. Brown, 9 Vet. App. 109, 114-15 (1996); YT v. Brown, 9 Vet. App. 195, 201 (1996); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Nevertheless, in evaluating the probative value of her medical statements, the Board may look at factors such as the individual knowledge and skill in analyzing the medical data. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (holding that a nurse's statement may constitute competent medical evidence where the nurse has specialized knowledge regarding the area of medicine or participated in treatment). The Board may also take the self-interest into account in assessing the weight to be accorded to such an opinion. See Pond v. West, 12 Vet, App. 341, 345 (1999) (although the Board must take a physician-veteran's opinions into consideration, it may consider whether self-interest may be a factor in making such statements, even if the Veteran himself is a health care professional); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (the Board may consider self interest in evaluating the testimony of claimants). Here, there is no evidence that the appellant has the specific medical expertise needed to render a competent opinion on the specialized, complex medical issues that are the subject of this appeal, such as a diagnosis or etiology of diabetes. Accordingly, the Board affords her opinions in this regard very little probative weight and finds that they are far outweighed by the VA opinions discussed above. Similarly, the Board acknowledges the Veteran's representative's statements during the May 2011 Board hearing regarding the possibility that the Veteran first manifested a mild case of diabetes in service that persisted without medical treatment until 1999. The Board recognizes the representative's assertions that he was a registered nurse who worked with hundreds of diabetic patients. However, there is no evidence that he has the specialized medical expertise needed to render a professional opinion as to the issues that are the subject of this appeal. Moreover, he provided no rationale to support his opinion that the Veteran first manifested diabetes in service. Rather, his opinion was couched in generalities based on his experience with other diabetes patients, and he offered no basis on which to accept these generalities as applicable to the Veteran's specific case. Accordingly, and assuming arguendo that the representative's professional background as a nurse renders him competent to provide an opinion as to the likely onset of diabetes, it is being afforded little, if any, probative weight. The Board has also considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested diabetes to a degree of 10 percent within one year following his active duty service discharge in 1965. As discussed above, the Veteran asserted that he was first diagnosed with diabetes in 1998, and the first medical evidence of a diabetes diagnosis was in 2000, which over 30 years after service discharge. The Board also acknowledges the contentions of the Veteran and the appellant that the elevated glucose in service was actually diabetes. However, as discussed in detail above, the Board finds that the Veteran is not competent to make such a determination and that, to the extent the appellant is competent, her assertions are outweighed by the January 2011/September 2013 VA opinions that the Veteran's diabetes did not manifest in service or for many years after service. As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the Board is grateful for the late Veteran's honorable service in defense of his country and is sympathetic to the appellant's claim, the Board concludes that service connection for diabetes is not warranted. Although the record evidence shows that the Veteran had this condition, it does not indicate that it had a causal connection to or was associated with his active military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs