Citation Nr: 1824977 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 15-09 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for skeletal arthritis. REPRESENTATION Appellant represented by: Barbara Lincoln, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to October 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a November 2016 Board hearing. A transcript of this hearing is associated with the record. This matter was previously before the Board in April 2017 and remanded for further development. 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) (2017). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent credible evidence of record does not support a finding that the Veteran's current diabetes mellitus manifested within one year of his leaving active service; the earliest clinical evidence of diabetes mellitus in the record is more than 45 years after separation from service. 2. The competent credible evidence of record does not support a finding that the Veteran's diabetes mellitus is causally related to, or aggravated by, active service. 3. The competent credible evidence of record does not support a finding that the Veteran's current arthritis (claimed as skeletal arthritis) manifested within one year of his leaving active service; the earliest clinical evidence of diabetes mellitus in the record is more than 58 years after separation from service. 4. The competent credible evidence of record does not support a finding that the Veteran has arthritis, causally related to, or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for arthritis (claimed as skeletal arthritis) have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's complete service treatment records are unavailable and it has been determined that they are "fire related" (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). Under these circumstances, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). This decision has been undertaken with that in mind. Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases (including diabetes mellitus and arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307 (a)(3); 3.309(a) (2016). Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The Veteran contends that his current skeletal arthritis and diabetes mellitus was caused by his military service, under combat conditions, during the Korean War. The only available service treatment record is a copy of an October 1954 separation examination, which did not note any defects, complaints or injuries. Diabetes The first medical record pertaining to diabetes mellitus in the record is a VA medical treatment record from December 1999 as a diagnosis and a glucose lab test result of 147 with no other documentation. It appears that in the Veteran's VA medical (VAMC) records, his "hemoglobin A1c" (average blood glucose control test) was monitored regularly starting in July 2003. The Veteran initially controlled his diabetes by regulating his diet, but in January 2009 he started taking oral medication to manage his diabetes. In February 2012, records indicate that the Veteran was using a private physician to treat his diabetes. In November 2016, the Veteran testified at a Board hearing that he sees a private physician for his diabetes. The Veteran's representative confirmed that the Veteran's treatment records from the private physician were not in the claims file and that the Veteran would ensure that those records would be submitted to be included into the record. The Veteran testified that he didn't have any issues with diabetes or blood sugar before service but he believes that his service in Korea is responsible for his diabetes. The Veteran attributed having to eat 10 year-old military c-rations while on the battlefield in Korea as a possible reason he now has diabetes. The Veteran also testified that every morning he has to let his feet dangle from the bed for a few minutes to let the swelling in his feet go down before he can get up to walk. No additional records were received from the Veteran following the hearing; therefore, in April 2017, the Board remanded the claim. The remand directed the RO to obtain any existing VA medical treatment records belonging to the Veteran, and also to contact the Veteran to identify where and by whom he obtained medical treatment for his diabetes, and to obtain the necessary releases to assist in obtaining any outstanding private medical treatment records. However, neither the Veteran, nor his representative, responded to the RO's request for information. The Board is satisfied that it met its duty to assist the Veteran in developing his claim. After a review of the available evidence, the Board finds that service connection for diabetes is not warranted on a presumptive or direct basis. No complaints or pertinent findings were noted on examination at separation from service. There is no evidence that the Veteran was clinically diagnosed with diabetes within one year of separation from service; the first diagnosis is December 1999, 45 years after Veteran left military service. Despite the RO's attempt to obtain medical records on his behalf, no records have been obtained. The Veteran did not submit any records on his own and did not respond to a request that he provide authorization and consent for VA to obtain any records. There is no evidence of a nexus between the currently diagnosed diabetes mellitus and service. Thus, service connection on a direct basis is not warranted. There is no competent evidence that points to an incident or event in service that provides any causation for the Veteran's diabetes. Additionally, the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Skeletal Arthritis The first medical record pertaining to the Veteran's arthritis is a VA medical treatment record from October 2010 with osteoarthritis as a diagnosis with no other notes or documentation. In January 2011, there is a nursing education note stating that the Veteran "is to be seen for osteoarthritis," however, there are no additional details or notes in the record regarding this condition on or near this entry date. In August 2011, a primary care physician's (PCP) note states, "X-rays reviewed Veteran ... moderate spondylosis of the thoracic spine." Another PCP note stating X-rays reviewed with spondylosis of the thoracic spine was also documented in June 2013. In December 2013, August 2014, and March 2015, the PCP noted degenerative joint disease (DJD) without additional details or documentation. In November 2016, the Veteran testified at a Board hearing that he is seen for his arthritis and is given medication for it. The Veteran testified that he didn't have any issues with arthritis or his joints before service but he believes that his service in Korea is responsible for his arthritis. The Veteran attributed being exposed to extreme temperatures while on the Korean battlefield as possible reason why he now has arthritis. After a review of the available evidence, the Board finds that service-connection for arthritis is not warranted on a presumptive or direct basis. There is no evidence that the Veteran was clinically diagnosed with arthritis within one year of separation from service; the first notation is October 2012, 58 years after Veteran left military service. Despite the RO's attempt to obtain medical records on his behalf, no records have been obtained. The Veteran did not submit any records on his own and did not respond to a request that he provide authorization and consent for VA to obtain any records. There is no evidence of a nexus between any currently diagnosed arthritis and service. Thus service connection on a direct basis is not warranted. There is no competent evidence that points to an incident or event in service that provides any causation for the Veteran's arthritis. Additionally, the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson, 230 F.3d at 1333. Conclusion The only other evidence in support of the claims is the Veteran's own opinion. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the questions of diagnosis and etiology of diabetes mellitus and arthritis extends beyond an immediately observable cause-and-effect relationship and thus, fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for diabetes or arthritis. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for skeletal arthritis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs