Citation Nr: 21030403 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 12-31 240 DATE: May 18, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. The appeal as to entitlement to nonservice-connected pension benefits has been withdrawn. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's hypertension began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus, type II, began during active service, or is otherwise related to an in-service injury or disease. 3. At the time of his May 2021 higher-level review conference, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, withdrew his appeal as to the issue of entitlement to nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for withdrawal of the issue of entitlement to nonservice-connected pension benefits have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1982 to October 1986, from February 1987 to February 1993, and from February 1993 to March 1996. The Veteran also had service in the Army National Guard. During his periods of service, he earned the Armed Forces Expeditionary Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Navy Expeditionary Medal, Navy Good Conduct Medal, and Southwest Asia Service Medal. As a preliminary matter, the Veteran's active service from February 1993 to March 1996 has been characterized as dishonorable and serves as a bar to VA compensation relating to that period of service. See Administrative Decision dated April 2003. The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). The designation of a discharge by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service constitutes one period of service, and entitlement will be determined by the character of the final termination of such period of service. See 38 C.F.R. § 3.13(b). In an April 2003 administrative decision, VA determined that the Veteran's discharge for the period of service from February 13, 1987 to February 12, 1993 was honorable for VA purposes. The Veteran's discharge for the period of service from February 13, 1993 to March 29, 1996 was considered to have been under dishonorable conditions and is a bar to VA benefits. The Veteran was notified of this decision in April 2003 and did not challenge or appeal it. There is no indication that there has been any upgrade in the character of the Veteran's service for the period from February 13, 1993 to March 29, 1996. As such, the claim will be adjudicated based on the Veteran's discharge statuses currently of record. In April 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case was previously remanded in June 2016, December 2017, and November 2020 for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including diabetes and hypertension, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. § 3.307(a)(3). Lay statements of continuity of symptomatology may prove service connection for those chronic diseases enumerated in 38 U.S.C. § 1101(3). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses, but he is not competent to determine the cause of diabetes or hypertension, as this requires specialized medical training to understand the complexities of the endocrine and cardiovascular. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for hypertension With regard to a present disability, the Veteran appeared for a VA hypertension examination in December 2016. At that time, the VA examiner noted a diagnosis of hypertension. Thus, the current-disability criterion for service connection is met. See Shedden, supra. With regard to an in-service disease or injury, the Veteran's service treatment records have been reviewed and are negative for evidence of hypertension. Under VA regulation, hypertension must be confirmed by blood pressure readings taken two or more times on each of at least three different days. For purposes of this section, the term hypertension means the diastolic blood pressure is predominantly 90 mm or greater and isolated systolic hypertension means systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101, Note (1). The Board observes that there are service treatment records which document slightly elevated blood pressure readings. Specifically, an October 1985 treatment record shows a reading of 140/90, a January 1991 treatment record shows a reading of 132/92, and an October 1991 treatment record shows a reading of 140/100. However, despite these isolated readings of blood pressure elevation during service, there is no evidence of diagnosis of hypertension nor evidence that the Veteran was prescribed anti-hypertensive medications. Accordingly, the second element of Shedden is not met. Moreover, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's military service and his hypertension. The Veteran appeared for a VA hypertension examination in December 2016. The VA examiner opined that it was less likely than not that the Veteran's hypertension was incurred in or caused by service. In support of the opinion, the VA examiner noted that the Veteran had transient elevated blood pressure readings during service, including a reading of 133/92 and 140/100 in 1991. She explained that transient elevated blood pressure readings do not fit the criteria for a diagnosis of hypertension. The VA examiner further explained that the Veteran was not definitively diagnosed with hypertension while on active duty nor do his treatment records show a definitive diagnosis of hypertension within a year of discharge. A review of Veteran's treatment records revealed a diagnosis of hypertension in or around 2000, which is more than one year after discharge. As the Veteran did not meet the criteria for essential hypertension during service or within a year of discharge, the VA examiner opined that the Veteran's current essential hypertension was less likely than not related to service. Pursuant to the December 2017 Board remand, a VA medical opinion was obtained in February 2018. The VA examiner concurred with the December 2016 VA examiner, finding that there was no diagnosis of hypertension during or within one year of a period of honorable active duty service nor was hypertension otherwise causally related to the Veteran's periods of active duty service. She acknowledged that the Veteran had a few isolated elevated blood pressure readings in his service treatment records. However, she noted that these instances of elevated blood pressure were not sustained and, therefore, are not diagnostic of hypertension during or within one year of a period of honorable active duty nor is hypertension otherwise causally related to his periods of active duty. Pursuant to the November 2020 Board remand, a VA medical opinion was most recently obtained in March 2021. The VA examiner opined that it was not at least as likely as not that the Veteran's hypertension arose during or within one year of a period of honorable active duty or is otherwise causally related to his periods of active duty. Though the VA examiner noted the etiology of the Veteran's hypertension could not be determined with any degree of certainty without speculating, he explained that the Veteran's hypertension was not caused or aggravated by service, diagnosed within one year of a period of honorable active duty, or otherwise causally related to his periods of active duty, given the information available in the claims file. The VA examiner explained that the Veteran's risk for hypertension was increased by elevated body mass index, which is not known to be related to his service. In support of his opinion, the VA examiner noted that the Veteran's service treatment records did not contain a diagnosis of hypertension nor chart notes consistent with a diagnosis of hypertension during service. VA treatment notes indicate a diagnosis of hypertension with medication treatment was made in 2003, during a time when the Veteran was not in service or within one year of a period of honorable active duty service. Moreover, he explained that there are no notes which suggest or prove a causal link of hypertension during service or within one year of a period of honorable active duty, nor is hypertension otherwise causally related to his periods of active duty. Indeed, none of his medical treatment records reference his military service in regard to or otherwise link it to his hypertension. With regard to lay evidence, the Veteran has asserted that he has experienced hypertension since his period of active service. Such recent assertions, however, are inconsistent with, and outweighed by, other lay and medical evidence of record, including the Veteran's service treatment records and no reports of high blood pressure in the years immediately following service. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Insomuch as the Veteran has attempted to establish a continuity of symptomatology or nexus through his own lay assertions, the Board finds that the etiology of hypertension falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Opinions as to causation involve making findings based on medical knowledge and clinical testing results, and the cardiovascular system is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person. Although the Veteran is competent to report having had high blood pressure readings at any given time, he has not been shown competent to identify latent symptoms of hypertension, or relate symptoms, patent or latent, to a diagnosis of hypertension. The evidence does not show clinical documentation of hypertension until several years after service. Consequently, the Veteran's opinion that purports to establish continuity of symptomatology or relate hypertension to active service is of no probative value. Although the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against a finding that service connection for hypertension is warranted. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to service connection for diabetes mellitus, type II With regard to a present disability, the Veteran appeared for a VA diabetes mellitus examination in December 2016. At that time, the VA examiner noted a diagnosis of diabetes mellitus, type II. Thus, the current-disability criterion for service connection is met. See Shedden, supra. With regard to an in-service disease or injury, the Veteran's service treatment records have been reviewed and are negative for evidence of diabetes mellitus. The Board observes that the February 1996 separation examination notes high fasting glucose, rule out diabetes mellitus vs glucose intolerance. However, there is no evidence of diagnosis of diabetes mellitus or any associated signs or symptoms. Accordingly, the second element of Shedden is not met. Moreover, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and also finds no evidence that may serve as a medical nexus between the Veteran's military service and his diabetes mellitus. The Veteran appeared for a VA diabetes mellitus examination in December 2016. The VA examiner opined that it was less likely than not that the Veteran's diabetes mellitus was incurred in or caused by service. In support of the opinion, the VA examiner noted that the Veteran had evidence of transient glucose intolerance during his separation exam in 1996; however, she determined the symptoms and findings during the Veteran's separation exam are consistent with impaired glucose tolerance and do not fit the criteria for a definitive diagnosis of diabetes mellitus. The VA examiner further explained that a definitive diagnosis of diabetes mellitus was not made until 2012-2013 while the Veteran was receiving care in the VA system. At that time, he had two elevated A1C tests over 6.5 and was started on medical management. Accordingly, the VA examiner opined that the Veteran's current diabetes mellitus was less likely than not related to service, as it did not manifest until over 10 years after discharge. Pursuant to the December 2017 Board remand, a VA medical opinion was obtained in February 2018. The VA examiner concurred with the December 2016 VA examiner, finding that there was no diagnosis of diabetes mellitus during or within one year of a period of honorable active duty service nor was hypertension otherwise causally related to the Veteran's periods of active duty service. The VA examiner noted that none of the Veteran's HgbA1c results were in the diabetic range until June 2013 when the first elevated 6.7 was noted. The VA examiner further noted that the Veteran had isolated elevated glucose values as far back as December 2003; but explained this was, at most, indicative of impaired fasting glucose, as it was unclear if some of those glucose elevations were actually done in a fasting state. Pursuant to the November 2020 Board remand, a VA medical opinion was most recently obtained in March 2021. The VA examiner opined that it was not at least as likely as not that the Veteran's diabetes mellitus arose during or within one year of a period of honorable active duty or is otherwise causally related to his periods of active duty. Though the VA examiner noted the etiology of the Veteran's hypertension could not be determined with any degree of certainty without speculating, he explained that the Veteran's diabetes mellitus was not caused or aggravated by service, diagnosed within one year of a period of honorable active duty, or otherwise causally related to his periods of active duty, given the information available in the claims file. The VA examiner explained that the Veteran's risk for diabetes mellitus was increased by elevated body mass index, which is not known to be related to his service. In support of his opinion, the VA examiner noted that the Veteran's diabetes mellitus was not diagnosed until May 2012. Prior treatment records showed periodic elevations in blood sugar, which may have been non-fasting; however, no persistent elevation in fasting blood sugar or HA1C required to diagnose diabetes was found in the files until 2012. The VA examiner further noted that one known elevated fasting blood sugar found in the service treatment records at the time of discharge in 1996 does not meet VA criteria for diagnosis of diabetes mellitus. Moreover, he explained that there are no notes which suggest or prove a causal link of diabetes mellitus during service or within one year of a period of honorable active duty, nor is diabetes mellitus otherwise causally related to his periods of active duty. Indeed, none of his medical treatment records reference his military service in regard to or otherwise link it to his diabetes mellitus. With regard to lay evidence, the Veteran has asserted that he has experienced diabetes mellitus since his period of active service. Such recent assertions, however, are inconsistent with, and outweighed by, other lay and medical evidence of record, including the Veteran's service treatment records and no reports of diabetes mellitus in the years immediately following service. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence); Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Insomuch as the Veteran has attempted to establish a continuity of symptomatology or nexus through his own lay assertions, the Board finds that the etiology of diabetes mellitus falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Opinions as to causation involve making findings based on medical knowledge and clinical testing results, and the endocrine system is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person. Although the Veteran is competent to report having had high glucose readings at any given time, he has not been shown competent to identify latent symptoms of diabetes mellitus, or relate symptoms, patent or latent, to a diagnosis of diabetes mellitus. The evidence does not show clinical documentation of diabetes mellitus until several years after service. Consequently, the Veteran's opinion that purports to establish continuity of symptomatology or relate diabetes mellitus to active service is of no probative value. Although the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against a finding that service connection for diabetes mellitus is warranted. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Withdrawn Claims 3. Entitlement to nonservice-connected pension benefits The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202. At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing. 38 C.F.R. § 20.205. At the time of the May 2021 higher-level review (HLR) informal conference, the Veteran, through his representative, expressed that he wished to withdraw the issue of nonservice-connected pension on appeal, as the Veteran is working. The HLR informal conference worksheet is of record. See HLR Informal Conference. His request withdrew the appeal in accordance with 38 C.F.R. § 20.205 and was received by the Board prior to the promulgation of a decision on the appeal. As such, there remain no allegations of error of fact or law for appellate consideration as to this issue. The Board has no jurisdiction to review the appeal of entitlement to nonservice-connected pension benefits, and the appeal is dismissed. See 38 C.F.R. § 20.202. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, Counsel 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.