Citation Nr: 1329157	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  04-36 541	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Jill Mitchell, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel


INTRODUCTION

The Veteran had active service from July 1976 to July 1996.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, denying, among other issues, the claim currently on appeal.  

In August 2006, the Veteran testified before the undersigned Veterans Law Judge at the RO in St. Petersburg, Florida.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.  

In a September 2009 decision, the Board denied the Veteran's claims for service connection for bilateral hearing loss and diabetes mellitus.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in October 2011, the Court issued a memorandum decision, partially vacating the Board's decision with respect to the issue of service connection for diabetes mellitus, and remanding the claim back to the Board for further development consistent with the Court's decision.  The Board subsequently remanded this claim back to the Agency of Original Jurisdiction (AOJ) in May 2012.  


FINDING OF FACT

The Veteran's diabetes mellitus did not manifest during or within one year of separation of military service, nor is it otherwise related to service.  


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Letters were sent to the Veteran in January 2003 and July 2006.  While these letters did not provide notice as to how disability evaluations are assigned or effective dates are determined, they did informed him of what evidence was required to substantiate the claim and of entitlement to service connection for diabetes mellitus and VA's respective duties for obtaining evidence.  Subsequent letters, including one dated February 2009, provided the Veteran with notice as to how disability evaluations are determined.  Even though the Veteran was not provided with all necessary notice until after the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  

Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA obtained the Veteran's service treatment records.  Also, the Veteran received a VA medical examination in July 2009 and April 2013 and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA.  Copies of private treatment records have also been incorporated into the claims file.  Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.  While records from the Cutler Naval Air Station, as discussed by the Court, the Veteran requested in August 2008 that his claim proceed without these records as they could not be located.  

Additionally, the Board finds there has been substantial compliance with its May 2012 remand directives.  The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand).  The Veteran was asked to identify any additional evidence of treatment, and he was scheduled for an examination in April 2013.  The AMC later issued a Supplemental Statement of the Case (SSOC).  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  

As already noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge in August 2006.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, the undersigned noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology.  The reasons for the previous denials and o the type of evidence that could be identified or submitted to further substantiate the claim were also discussed as part of the hearing.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussion did not reveal any additional evidence than that already discussed that might be available that has not been presently obtained.  Under these circumstances, nothing gives rise to the possibility that evidence has been overlooked with regard to the Veteran's claims.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2)  and that the Board may proceed to adjudicate the claims based on the current record.

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).  

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as diabetes mellitus becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

Background

The Veteran contends that he is entitled to service connection for diabetes mellitus.  Specifically, the Veteran has asserted that symptomatology for this condition first arose during active military service.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran was not exhibiting symptomatology associated with diabetes mellitus during active military service or within one year of his separation from active service.  

The Veteran's service treatment records fail to reflect a diagnosis of diabetes mellitus during military service.  Post-service medical records from MacDill Air Force Base, Health Ways Regional Medical Center and Tampa General Hospital clearly show a diagnosis of this disability after military service, and the Veteran has continued to receive treatment for this condition.  The first evidence of a diagnosis of diabetes mellitus is a private treatment note dated 2000, which is nearly four years after the Veteran's separation from active duty.  The Veteran has not asserted that he was in fact diagnosed with diabetes mellitus prior to this time.  

The record also contains a statement from a private physician with the initials R.A.  According to Dr. A, while the Veteran was diagnosed with diabetes mellitus in January 2000, he had previously been seen on numerous occasions prior to this time with symptoms consistent of diabetes mellitus type II.  These symptoms dated as far back as August 1, 1996.  Therefore, Dr. A opined that the Veteran indeed suffered from early type II diabetes prior to August 1, 1996.  

In July 2009, the Veteran's claims file was reviewed by a VA examiner for a medical opinion regarding the onset of diabetes mellitus.  After review, the examiner opined that all indications from the Veteran's claims file revealed that he was diagnosed with diabetes mellitus for the first time in January 2000.  The examiner also reviewed laboratory results of record from 1996 and 1998, which noted failed to reveal any results indicating the presence of diabetes mellitus.  As such, the VA examiner opined that regardless of the Veteran's symptoms, if laboratory testing failed to reveal two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus, the diabetes mellitus did not exist until January 2000.  The examiner thereby concluded that there was no evidence of diabetes mellitus prior to January 2000.

In September 2010, the Court rejected the July 2009 opinion, as the fact that there is no actual diagnosis of diabetes mellitus prior to January 2000.  Rather, the examiner was to opine as to whether earlier symptomatology was suggestive of diabetes mellitus or the early onset of diabetes mellitus.  The Veteran was subsequently scheduled for an additional examination in April 2013 so that such an opinion could be provided.  The examiner examined the Veteran and reviewed the evidence of record.  The examiner opined that it was less likely than not that the Veteran's diabetes mellitus was incurred in or caused by an in-service injury, event or illness.  The examiner explained that older studies concerning the onset of diabetes in relationship to making the actual diagnosis was an estimated lag time of anywhere between 4 years and 7 years.  Newer literature, however, noted "The progression into diabetes mellitus from prediabetes is approximately 25% over three to five years."  Pre-diabetes was defined as fasting glucose between 100 to 110 on more than one occasion.  The examiner reviewed the Veteran's active duty records, but they failed to reveal any elevated glucose levels, including pre-diabetic glucose readings.  The examiner further explained that the Veteran's belief that his urinary frequency and fatigue were reflective of diabetic symptomatology.  While a random glucose test was performed in December 1990 revealing a glucose reading of 102, the urinalysis was negative for glucose spillage as were all urinalysis performed while on active duty.  These complaints were also accompanied by musculoskeletal aches, a normal blood pressure, normal CBC and a weight of 183.  The Veteran's symptoms subsided after conservative treatment for viral syndrome.  The Veteran had an elevated white blood cell count one week prior to being seen for urinary frequency and fatigue, indicating infection during this period of symptomatology.  

The examiner also discussed the fact that the Veteran' weight was noted to be 193 pounds with normal glucose readings in 1994.  In 1997, private records do reflect a pre-diabetic state.  The examiner explained that pre-diabetes is merely a risk factor for diabetes.  It is not a milder form of diabetes or a guarantee that diabetes will later develop, with only 25 percent developing diabetes within 3 years.  At the time of the pre-diabetic state, the Veteran's weight had increased to 211 pounds.  The Veteran noted a three week history of urinary frequency with blurred vision and his glucose level was found to be 394 at this time with a glucose spillage at greater than 1000 mg/dl.  Fasting glucose readings were noted to be 65.  While most non-diabetics range around 70 to 80 mg/dl prior to meals, 60 can be normal for an individual.  As the Veteran himself pointed out, he had no symptoms with this reading.  Hypoglycemia is usually accompanied by weakness, shaking, light-headedness, and sweating.  The examiner also explained that while the Veteran did submit evidence of an elevated lipid profile, this tends to change with any gain or loss of weight, regardless of whether diabetes is present.  The examiner also noted that no prediabetic level of glucose was found as part of this physical and total cholesterol was 198 at the time of diagnosis of diabetes mellitus with an elevation in triglycerides to 263.  While triglycerides often elevate in the presence of diabetes, the Veteran's triglycerides were noted to be normal at 203 upon testing in 1994.  Finally, the examiner considered whether there were any medications that may have resulted in altered lab values.  The Veteran reported intermittent pain medication for back pain for many years as well as major depression.  The examiner noted that while the examiner was unable to find a list of the medications used during the time periods discussed above, elevated LFTs was a possible side-effect of this medications.  

Finally, the examiner reviewed the 2002 statement of Dr. A.  The examiner noted after reviewing the opinion he was unable to find any actual rationale in support of this opinion.  The examiner explained that while the Veteran did have fatigue dating back to 1985 and urinary frequency associated with urethritis, there was improvement in symptomatology of urinary frequency and urethral paresthesias once the urethritis was treated.  The examiner summarized, stating that it was apparent that the Veteran did not meet the criteria for type II diabetes while on active duty.  His symptoms that dated back more than 10 years prior to leaving active duty are outside of what research had indicated could be the lag time from diabetes onset to diagnosis.  They symptoms given could be explained by infections rather than diabetes, as glucoses were normal during the time of testing and triglycerides/LFTs were also normal during this period.  An elevated white cell count was also found during at least one of the periods of symptoms and relief of symptoms was noted with antibiotic use.  While elevated LFTs can predict diabetes as well as prediabetes, they have many other causes including medications, infection, heart problems, and others.  The Veteran's weight increased considerably after leaving service, increasing his risk of developing diabetes mellitus, which he eventually did in 2000.  

Analysis

The preponderance of the above evidence demonstrates that service connection for diabetes mellitus did not manifest during, or as a result of, active military service, nor did it manifest within one year of separation from active duty.  Service treatment records do not reflect a diagnosis of this condition, and the first diagnosis is from January 2000 - more than 3 years after separation from active duty.  While there are earlier lab results of record, the April 2013 VA examiner explained in detail that these readings were not conducive to a finding of pre-diabetes.  The lag time between these symptoms and the Veteran's actual diagnosis of diabetes mellitus was too great.  Furthermore, the evidence suggested that earlier lab readings were associated with illness or other conditions, as the Veteran's symptoms resolved with viral treatment on at least one occasion and other readings that would be suggestive of diabetes mellitus were deemed to be normal.  

The Board recognizes that Dr. A opined in 2002 that the Veteran had symptoms related to diabetes mellitus since at least 1996 and that the Veteran suffered from early type II diabetes prior to this time.  While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  Dr. A provided little rationale in support of his opinion, aside from noting that the Veteran experienced symptoms consistent with diabetes mellitus type II prior to January 2000, including urinary frequency, fatigue and dry mouth.  However, Dr. A failed to discuss why the Veteran's particular symptomatology was in fact indicative of early onset diabetes prior to August 1996.  The April 2013 VA examiner, however, reviewed and discussed all of the evidence of record, explaining that the Veteran's symptoms that were being related to pre-diabetes were actually associated with illness, as evidenced by elevated white cell counts and improvement upon viral treatment.  The examiner also discussed the medical literature as far as lag time between pre-diabetes symptoms and an actual diagnosis of diabetes mellitus.  Finally, the examiner considered the increase in the Veteran's weight from military service until his diagnosis of diabetes mellitus, and felt that this was a significant factor.  This was not mentioned by Dr. A.  As such, in light of the significantly more detailed discussion provided by the April 2013 VA examiner, along with a reliance on medical literature and the specific facts associated with the Veteran's military and post-military history, the Board finds the opinion of the April 2013 VA examiner to be more probative.  

The Board recognizes that the Veteran believes he was suffering from diabetes mellitus prior to August 1996.  In August 2006, the Veteran also testified that his records demonstrated low glucose levels and other symptoms of diabetes in service such as frequent urination.  However, the record does not reflect that the Veteran has the requisite training or expertise to offer a medical conclusion as complex as linking this symptomatology to the subsequent development of diabetes mellitus.  As explained by the competent VA examiner of record, the in-service symptoms such as frequent urination could be explained by other medical conditions that resolved upon treatment.  

Finally, the record also contains a statement from a co-worker of the Veteran, indicated that she worked with the Veteran both before and after he was diagnosed with diabetes mellitus.  This co-worker stated that the Veteran used to be easily agitated, anxious, irritable and unreasonable in service, but that he had been much more relaxed since his treatment following service.  She opined that the Veteran's former behavior was due to his varied untreated blood sugar levels and related behavioral changes.  Thus, she concluded that the Veteran was suffering from diabetes mellitus.  While the Veteran's co-worker is certainly competent to testify to what was witnessed while working with the Veteran, the record fails to reflect that this individual is competent to link irritability and other emotions with a diagnosis of a medical disorder such as diabetes mellitus.  As such, this statement fails to reflect that service connection for diabetes mellitus is warranted.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for diabetes mellitus must be denied.


ORDER

The claim of entitlement to service connection for diabetes mellitus is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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