Citation Nr: 21070377 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-38 482 DATE: November 23, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a bilateral knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus had its onset in or was related to his active duty service or manifested within one year of service. 2. The preponderance of the evidence is against a finding that the Veteran's bilateral knee disability had its onset in or was related to his active duty service or manifested within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to April 1978 and from April 1978 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. A transcript of that hearing has been associated with the claims file. The Board remanded the issue for further development in May 2021. The claims have been returned to the Board for appellate review. The Board notes that actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). SERVICE CONNECTION Legal Criteria Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Arthritis and diabetes mellitus are on the list of diseases presumed to have been incurred in-service and receive a one-year presumption. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus During service, the Veteran was evaluated for his overweight condition in August 1981. The examiner noted the Veteran's father's history of diabetes and determined that the Veteran's overweight condition was due to non-medical causes. See August 1981 STR note. September 1985 and October 1985 service treatment records show that the Veteran was required to participate in the weight control program in service. The Veteran's STR also shows nutrition counseling from October 1985 to April 1986, and July 1986 to August 1986. The Veteran underwent an optometric evaluation in February 1983, at which time the examiner noted a prior medical history, as well as a family medical history, of diabetes. In the Veteran's May 1992 report of medical history, shortly before his separation, the Veteran reported recent weight gain. The Veteran testified at a hearing in March 2021. The Veteran testified his diabetes was related to weight fluctuations and obesity in service, and that he had excessive thirst and frequent urination during service. The Veteran testified that he was diagnosed with diabetes by a private provider in 1993 or 1994. The Veteran testified that after receiving the diagnosis, he was informed that his high cholesterol had been exacerbated by his diabetes. The Veteran was afforded a VA examination in August 2021 in accordance with the Board's May 2021 remand. The examiner opined that the Veteran has a current diabetes mellitus diagnosis and provided a negative nexus opinion. The examiner opined that the Veteran had weight issues while in service and acknowledged that being overweight is a risk factor for diabetes. The examiner considered the Veteran's statements regarding excessive thirst, fatigue, and obesity during service but noted that those symptoms have multiple etiologies. The examiner opined that there was no indication that the Veteran suffered any symptom of diabetes within service or the 5 years thereafter. The examiner further opined that obesity is a risk factor for multiple conditions other than diabetes and does not necessarily result in any condition. The Veteran contends that his current diabetes is related to service. The Board concludes that, while the Veteran has a current diagnosis of diabetes mellitus and evidence shows that he was treated for obesity during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of diabetes began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with diabetes until October 2015, decades after his separation from service. The Board acknowledges the Veteran's testimony regarding a private diagnosis shortly after service. However, the Board also notes that the Veteran did not submit such records and reiterates that, as stated above, VA has fulfilled the duty to assist. The Board also acknowledges the notation of a prior medical history of diabetes in the Veteran's in-service optometry record. The Veteran's August 1981 STR note shows that the Veteran reported his father's history of diabetes. There is no other indication in the record of the Veteran's own history of diabetes until October 2015. Also, the Veteran testified that he was not diagnosed with diabetes until after his period of active service ended. Therefore, the in-service notation regarding diabetes history has low probative weight. Further, the August 2021 VA examiner opined that the Veteran's diabetes is not related to an in-service injury, event, or disease, including excessive thirst, fatigue, and obesity. The rationale was that the claimed symptoms have multiple etiologies, that there was no diagnosis in service or soon thereafter. The examiner also explained that while obesity is a risk factor for diabetes, it does not necessarily result in diabetes. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board give substantial probative weight to the August 2021 VA examiner's opinion. While the Veteran believes that his current diabetes is related to service or had its onset during service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of diabetes are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his diabetes is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current diabetes is not competent medical evidence. Additionally, the Veteran indicated that his diabetes may have manifested within one or two years of service; however, there is no medical evidence regarding a diagnosis within one year of service and the Veteran was equivocal as to the exact timing. Thus, the preponderance of the evidence is against a finding that diabetes mellitus manifested to a compensable degree within a year of service. In sum, the competent and probative evidence of record fails to indicate that the Veteran's diabetes mellitus had its onset in or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for diabetes mellitus must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for a bilateral knee disability Factual Background At the Veteran's entrance examination in January 1978, the examiner noted the Veteran's right knee scar. Neither the Veteran nor the examiner noted any other knee problem. The Veteran's subsequent STR shows the right knee scar during a periodic examination in May 1984, as faded in November 1985, and well-healed in May 1990. In an October 1985 notation, the examiner noted that despite his weight, the Veteran was in good health and quite active, running 3-4 miles daily without difficulty. At the Veteran's separation examination in May 1992, the Veteran did not report any knee trouble or swollen/painful joints. The examiner did note the right knee scar without additional comment. September 2017 VA treatment records note that the Veteran had a history of bilateral osteoarthritis of the knees, as a service-related injury. At the March 2021 hearing, the Veteran testified that his bilateral knee pain is a result of his activity and use of the knee during service including climbing in and out of large trucks, breaking down and carrying equipment, wearing combat boots, and completing physical therapy. The Veteran also reported that he twisted his knees during service. The Veteran further testified that as a company commander he led trainees on 8 hours and 18-mile marches with full backpacks that included 50-60 additional pounds of weight. The Veteran, as leader of the march, was required to stay in front of the group. The marches usually occurred in conditions other than dirt, which caused additional injury when the Veteran fell to his knees in gravel. These marches were required of the Veteran periodically over a period of approximately 3 years. The Veteran testified that he did not seek treatment for all of his injuries and pain but rather adopted a "grin and bear it" approach. The Veteran was afforded a VA examination in August 2021. The examiner diagnosed the Veteran with bilateral knee degenerative arthritis, other than post-traumatic. The examiner opined that the Veteran's bilateral knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there was no documented in-service injury that would result in later degenerative changes and no evidence of reoccurring bilateral knee problems in service or the 5 years thereafter. The examiner considered the Veteran's contentions of in-service heavy lifting, prolonged marching with heavy loads, and twisting of the knees, but opined that the lack of chronic complaint during service and in the years thereafter indicates that his current conditions are not related to service. The Veteran contends that he has a current bilateral knee disability which is causally related to his service. The Veteran contends that his current disability is due to his activity and use of the knee during service, including long-distance marches while carrying heavy equipment, twisting his knees, climbing into and out of trucks, and falling onto his knees in gravel. See March 2021 hearing transcript. The Board concludes that, while the Veteran has a current diagnosis of bilateral knee degenerative arthritis, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of a bilateral knee disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran sought treatment for bilateral knee pain as early as September 2017. The first diagnosis and treatment of record were thus decades after the Veteran's separation from service. The August 2021 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Although the September 2017 VA treatment record contains a note regarding a nexus to service, that notation does not have any accompanying rationale or reasoning. Instead, the notation appears to be based on the Veteran's self-reported medical history, which is inconsistent with the VA examination that shows that he did not suffer an in-service injury that would cause bilateral degenerative arthritis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the August 2021 VA examiner's opinion. While the Veteran believes that his current bilateral knee disability is related to service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of bilateral knee disabilities are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his bilateral knee disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current bilateral knee disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. Additionally, there is no medical evidence regarding a diagnosis by x-ray evidence of arthritis within one year of service. Thus, the preponderance of the evidence is against a finding that arthritis manifested to a compensable degree within a year of service. In sum, the competent and probative evidence of record fails to indicate that the Veteran's bilateral knee disability had its onset in or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for a bilateral knee disability must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mookim, Hope P. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.