DIABETES MELLITUS

Summary

The Veteran served from December 1978 to January 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision, following a prior remand in October 2019. The Veteran appeals the denial of service connection for diabetes mellitus type II and seeks an increased rating for a right ankle sprain, as well as service connection for right and left shoulder disabilities. The Board found the Veteran has a current diagnosis of diabetes mellitus type II, but the VA examiner opined it was less likely than not related to service, citing no in-service complaints, diagnosis, or treatment. The Veteran's lay statements only confirmed the post-service diagnosis. The Board found the VA examination adequate and denied service connection for diabetes, finding the evidence weighed against the claim and the benefit-of-the-doubt doctrine inapplicable. The Board remanded the right ankle sprain issue because the AOJ failed to provide information on the competence of the examiner from a prior March 2015 VA examination, rendering that opinion unusable. The shoulder claims were remanded because the September 2020 VA examinations were found inadequate; the examiner relied on the absence of in-service records and failed to address the Veteran's lay statements regarding in-service injuries and subsequent treatment. An addendum opinion is required for the shoulder claims, and a new VA examination is needed for the right ankle sprain to assess severity.

Rationale

No in-service complaint, diagnosis, or treatment for diabetes; VA examiner opined less likely than not related to service; Veteran's lay statements confirmed post-service diagnosis

Full Decision Text

Citation Nr: 23022117
Decision Date: 04/11/23	Archive Date: 04/11/23

DOCKET NO. 19-07 483
 DATE: April 11, 2023

ORDER

Entitlement to service connection for diabetes mellitus type II is denied.

REMANDED

Entitlement to a rating in excess of 10 percent for right ankle sprain with joint mouse is remanded.

Entitlement to service connection for a right shoulder disability, to include rotator cuff tear is remanded.

Entitlement to service connection for a left shoulder disability, to include rotator cuff tear to include as secondary to right shoulder disability is remanded.

FINDING OF FACT

The probative evidence of record shows that the Veteran's diabetes mellitus type II is not related to service.

CONCLUSION OF LAW

The criteria for establishing service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1978 to January 1999. 

These matters come before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision by a VA Agency of Original Jurisdiction (AOJ). The Veteran timely perfected an appeal. See October 2015 Notice of Disagreement; January 2019 Statement of the Case; February 2019 VA Form 9.

The Board has previously considered and remanded this matter in an October 2019 Decision. See October 2019 BVA Decision. The matter is now again before the Board. See October 2020 Supplemental Statement of the Case.

A Veteran is entitled to substantial compliance with the Board's remand orders. 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)). Substantial compliance means actual compliance with essential objectives. See Mo. Veterans Comm'n v. Peake, 22 Vet. App. 123, 127 (2008).

1. Entitlement to service connection for diabetes mellitus type II

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; 38 C.F.R. § 3.303 (a). 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 also 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).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the
ersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

B.	Factual Background & Analysis

The Veteran's service treatment records (STRs) are silent for any reference to diabetes or symptoms thereof. See generally November 2014 STR - Medical.

The first diagnosis of diabetes recorded in the Veteran's VA treatment records is in April 2009 - nearly ten years after the Veteran was discharged from active duty. See June 2018 CAPRI at 43. Private treatment records first record a diagnosis of diabetes in June 2013. Based on these records, the Board finds that the Veteran has a current diagnosis of diabetes mellitus type II. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167.

Pursuant to the Board's remand, the Veteran was afforded a VA examination to determine the nature and etiology of his diabetes mellitus type II. The examiner reviewed the claims file and examined the Veteran. See September 2020 C&P Exam. The examiner opined as follows: 

"The medical records available to this examiner do not support the veterans currently diagnosed Diabetes Type 2 is due to service. There is no complaint diagnosis or treatment for Diabetes while in active service. Therefore it is less likely than not, (less than 50 percent probability) [i]ncurred in or caused by any disease or injury during the claimant's service." Id at 2.

The Board notes that while the examiner's rationale does not discuss any lay statements, the Veteran has made no clear lay statements in the record attributing his diabetes mellitus type 2 to his service and has not alleged that his diabetes began during service. The Veteran has stated "[...] I have since been diagnosed with type II diabetes", and "[...] I have included with this letter copies of supporting documentation from Dr's for Hypertension, Type II diabetes [and other conditions]." See October 2014 VA 21-4138 Statement in Support of Claim. The Veteran's lay statements are simply statements to the effect that since discharge he has been diagnosed with diabetes mellitus type II. This fact is acknowledged by the examiner, who was left only with the Veteran's medical records and the results of his in-person examination to render his opinion. Under these circumstances, the Board finds the September 2020 C&P examination adequate and probative to the etiology of Veteran's diabetes mellitus type II.

Thus, the record is devoid of evidence (either lay or medical) to satisfy the second Shedden element of in-service injury or incurrence; or the third Shedden element, nexus. See Shedden supra. Accordingly, the Veteran's claim for service connection for diabetes mellitus type II must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 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).

REASONS FOR REMAND

2. The issue of entitlement to a rating in excess of 10
, the Veteran's claim for service connection for diabetes mellitus type II must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 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).

REASONS FOR REMAND

2. The issue of entitlement to a rating in excess of 10 percent for right ankle sprain is remanded.

The Board remanded the issue of entitlement to a rating in excess of 10 percent for right ankle strain so the AOJ could obtain the CV and qualifications of an examiner, finding that the Veteran made a proper Francway challenge of a March 2015 VA examination. See October 2019 BVA Decision at 9-11 (citing Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019)). As explained in Francway, once the Veteran has properly challenged the competence of an examiner, VA may not presume the competence of the examiner. Id at 1308. The AOJ must enter evidence of the examiner's competence into the claims file, and the Board must then make factional findings regarding the qualifications of the examiner and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id (citing 38 U.S.C. § 7104(d)).

Upon remand to comply with Francway, the AOJ was unable to locate or provide any information at all about the qualifications of the examiner. See April 2020 VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. This leaves the record void of evidence regarding the competence of the March 2015 VA examiner. Because the Board may not presume the examiner's competence, the Board may not assign the examiner's report any probative weight. Since no other medical evidence of record fully addresses the severity of the Veteran's right ankle condition, a new VA examination is required.

3. The issues of entitlement to service connection for right and left shoulder disability are remanded.

The Veteran described injuring his shoulders during service and seeking aid and treatment for shoulder pain immediately upon discharge from active duty, and continuously since that time. See October 2014 VA 21-4138 Statement in Support of Claim. The Board remanded the issues, instructing the AOJ to obtain a VA examination to determine the nature and etiology of any shoulder conditions the Veteran has. See October 2019 BVA Decision at 7-8.

In September 2020 and pursuant to the Board's decision, the Veteran was afforded VA Examinations for the left and right shoulders. See September 2020 VA Examination. The examiner opined that the Veteran's right shoulder is less likely than not related to service. Id at 2. The examiner's rationale follows:

"The medical records available to this examiner do not support the veterans currently diagnosed s/p right arthroscopic rotator cuff repair residuals is due to service. There is no complaint diagnosis or treatment for a right shoulder disability while in service, during separation physical or during the immediate year following discharge from service. Therefore it is less likely than not [...] related to any disease or injury during active service." Id.

With respect to the left shoulder, the examiner opined in substantially similar fashion, commenting only on the lack of in-service records and failing to acknowledge or discuss the Veteran's competent lay statements. The examiner also found that medical records did not support the Veteran's currently diagnosed left rotator cuff repair was aggravated beyond its natural progression by the right shoulder.  he Board notes that relying on the absence of evidence in medical records without regard for lay statements to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Accordingly, the Board finds the September 2020 C&P examination inadequate. An addendum opinion that fully addresses the lay evidence of record is required for the Veteran's left and right shoulder claims before the Board can proceed.

The
 Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Accordingly, the Board finds the September 2020 C&P examination inadequate. An addendum opinion that fully addresses the lay evidence of record is required for the Veteran's left and right shoulder claims before the Board can proceed.

The matters are REMANDED for the following action:

1. First, obtain any outstanding VA treatment records and associate them with the claims file.

2. Then, obtain an addendum opinion on the Veteran's left and right shoulder disabilities.  The examiner must review the claims file. The examiner need not perform an in-person examination unless he or she determines it is necessary to render a competent opinion.

The examiner is asked to provide a response to the following:

(a)	 Is the Veteran's left shoulder condition at least as likely as not related to service, including the injuries specifically described in the Veteran's lay statements?

(b)	Is the Veteran's right shoulder condition at least as likely as not related to service, including the injuries specifically described in the Veteran's lay statements?

a.	If yes, whether the Veteran's left shoulder condition is caused or aggravated by his right shoulder condition. 

Provide a rationale to support the opinion(s). The examiner must review and discuss the Veteran's lay statements regarding the injuries he reported sustaining during service and his reported attempts to obtain care after service.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle sprain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

  

 

 

R. Costello

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Divis, Robert A.

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.