On appeal from the Department of Veterans Affairs (VA) Regional Office in Oakland, California
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus, type I, secondary to service-connected Graves' disease.
2. Whether new and material evidence has been submitted to reopen a claim for service connection for ulcerative colitis as secondary to service-connected Graves' disease.
3. Entitlement to service connection for diabetic neuropathy of both hands, feet, and ankles as secondary to service-connected Graves' disease.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The Veteran had active service from June 1962 to March 1965, and from December 1965 to December 1968.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California, which denied the above claims. The case is now under the jurisdiction of the Oakland, California RO.
In March 2010, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002).
In February 2011, the Board obtained an expert medical opinion in this matter.
FINDINGS OF FACT
1. An August 1995 rating decision denied claims for service connection for diabetes mellitus, type I, and ulcerative colitis on the basis that the evidence submitted did not show that these disorders were related to service or the Veteran's service-connected Graves' disease.
2. The evidence submitted since the August 1995 rating decision pertinent to the claims for service connection for diabetes mellitus, type I, and ulcerative colitis was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims.
3. Diabetes mellitus, type I, had its onset during active service.
4. Ulcerative colitis/Crohn's disease had its onset during active service.
5. Diabetic neuropathy of the hands, feet, and ankles has been causally related by competent medical evidence to the Veteran's service-connected diabetes mellitus, type I.
CONCLUSION OF LAW
1. The August 1995 rating decision which denied service connection for diabetes mellitus, type I, and ulcerative colitis, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2010).
2. Additional evidence submitted since the August 1995 rating decision is new and material, and the claims for service connection for diabetes mellitus, type I, and ulcerative colitis are reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a) (2010).
3. Diabetes mellitus, type I, was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).
4. Ulcerative colitis/Crohn's disease was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010).
5. Diabetic neuropathy of the hands, feet, and ankles is causally related to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.310(a) (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONDuties to Notify and Assist
Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, given the favorable decision with respect to the issue of whether new and material evidence has been submitted to reopen the claims for service connection for diabetes and ulcerative colitis, and the grant of all of the benefits sought, the Board finds that further discussion of the VA's "duty to notify" and "duty to assist" obligations is not necessary at this time.
New and Material Claims
Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
The record with respect to the claims for service connection for diabetes mellitus, type I, and ulcerative colitis reflects that the August 1995 rating decision denied these claims, and that following the Veteran's timely appeal to the Board, the Veteran withdrew the claims from further appellate review. Accordingly, the August 1995 decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Board finds that the Veteran's claims for service connection for diabetes mellitus, type I, and ulcerative colitis may only be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In this regard, in a recent case, the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
Here, based on the grounds stated for the denial of the claims in the August 1995 rating decision, new and material evidence would consist of medical evidence indicating that the Veteran's diabetes and ulcerative colitis are related to service or to service-connected disability.
In this regard, evidence received since the August 1995 rating decision most importantly includes an expert medical opinion from a board certified endocrinologist and professor of endocrinology at the University of Arkansas that links the Veteran's diabetes and ulcerative colitis to an autoimmune polyglandular syndrome that the expert believes had its onset during the Veteran's active service. Since the lack of medical evidence demonstrating a relationship between the Veteran's diabetes and ulcerative colitis and service was in part the basis for the denial of the claims in August 1995, this additional opinion suggesting a relationship between the claimed disorders and service clearly relates to an unestablished fact necessary to substantiate the claims. 38 C.F.R. § 3.303 (2010). Accordingly, the Board finds that this additional evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable opportunity of substantiating the claims. The Board thus finds that the claims for service connection for diabetes mellitus, type I, and ulcerative colitis are reopened.
Consideration of the Claims for Service Connection for Diabetes Mellitus, Type I, Ulcerative Colitis, and Diabetic Neuropathy of the Hands, Feet, and Ankles on the Merits
"[I]n order to establish service connection or service- connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d).
When a veteran served 90 days or more during a period of war and diabetes mellitus or an organic disease of the nervous system 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 the disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).
Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a).
The Veteran is service connected for Graves' disease. He claims that his diabetes mellitus, ulcerative colitis/Crohn's disease, and diabetic neuropathy of the hands, feet, and ankles, all developed as due to or have been aggravated by his Graves' disease or are part of one polyglandular disorder.
In a March 1997 letter, a VA endocrinologist (A.S.) indicated that the Veteran had been diagnosed with Graves' disease on active duty. He was subsequently diagnosed as having insulin-dependent diabetes mellitus and Crohn's disease. He stated that these diseases were related to some degree. He indicated that there was a well-established association between Graves' disease and insulin-dependent diabetes because, on occasion, other endocrine glands are involved and some skin disorders can also be associated. On the other hand, he indicated that he was unable to find an association between his Crohn's disease and either diabetes or thyroid disorders. He stated that, "In sum, it can be argued that your insulin-dependent diabetes may be related to your service-connected Graves' disease. The Crohn's disease, on the other hand, appears not to be related."
Another VA endocrinologist in January 1998 (C. C.) provided the opinion that it was unlikely that the ulcerative colitis or the diabetes mellitus were related to the Graves' disease. In April 1999, this examiner again stated that there was no connection between the successfully-treated Graves' disease and the subsequent development of diabetes mellitus and ulcerative colitis.
In April 2005, another VA staff physician (R.P.) indicated that it was not as likely as not that the Veteran's current hypothyroidism was associated with his insulin-dependent diabetes mellitus, type I. The examiner stated that there was no nexus between these conditions.
Thereafter, VA outpatient records reflect diagnoses of Graves' disease, diabetes mellitus, type I, ulcerative colitis, peripheral neuropathy, and an impression of "polyglandular syndrome" which encompassed these diagnoses.
However, subsequently, Grace Lee, M.D., provided an opinion that the Veteran did not have autoimmune polyglandular syndrome since the Veteran did not have primary adrenal insufficiently. She noted that he also did not have other associated signs or symptoms, such as primary hypogonadism, among others.
In November 2005, another VA examiner (K.C.) provided an opinion that it was not at least as likely as not that the Veteran's diabetes was related to his service-connected thyroid disease, and it was not apparent that there had been any aggravation of the Veteran's diabetes as secondary to the thyroid disease. This examiner also criticized the prior use of the word "associated," by another physician as he indicated that this word did not necessarily mean a "cause and effect" relationship.
Subsequent VA records again reflect that the Veteran was diagnosed as having polyglandular syndrome and, in addition, he was noted to have hypogonadism.
In April 2007, a private physician, Dr. Craig N. Bash, M.D., provided an opinion that the Veteran likely had an autoimmune polyendocrinopathy which had involved his thyroid, pancreas (diabetes and peripheral neuropathy), bowel (ulcerative colitis), and immune systems, with his first symptoms being of thyroid disease during service. It was his opinion that the diabetes with peripheral neuropathy of the hands and feet, labile blood pressure, cold intolerance, weight gain, ulcerative colitis (surgically removed colon in 1993-1994), B12 deficiency, gall bladder removal, and history of aspergillosis, as secondary to the autoimmune disease or its complications, all began during service with the Graves' disease.
In July 2007, a VA examiner (C.C., who also provided a medical opinion in April of 1999), concluded that it was unlikely that the Veteran had pernicious anemia, and that therefore, the presence of diabetes mellitus and Graves' disease in the same person was less likely than 50 percent that it was related to autoimmune polyendocrinopathy. He went on to state that if the Veteran was shown to have clear-cut pernicious anemia due to atrophic gastritis with positive Schilling tests, and improving the absorption of vitamin B-12 after the given intrinsic factor, these would make it more likely than not that he did, indeed, have polyendocrine deficiency syndrome. In the absence of this information, the opposite was the case.
In November 2009, Celina Hetnal, M.D. stated that the Veteran had been diagnosed with autoimmune disease involving multiple organs (thyroid, pituitary, Crohn's disease, pernicious anemia, and type I diabetes mellitus).
The Board obtained an expert medical opinion from endocrinologist and professor of endrocrinology at the University of Arkansas, Dr. F.F., in February 2011. After carefully reviewing the record and relevant medical literature, it was Dr. F.F.'s opinion that the Veteran had an autoimmune polyglandular syndrome that had its clinical onset during service, resulting in Graves' disease, diabetes mellitus, and ulcerative colitis/Crohn's disease. Dr. F.F. went on to indicate that it was more likely than not that the Veteran had an autoimmune polyglandular syndrome and that the first manifestation of this syndrome, Graves' disease, in this Veteran occurred during active military service. He further stated that he certainly would not have been able to predict that the other manifestations of this syndrome, type I diabetes and inflammatory bowel disease, would occur later, but based on the high likelihood that this syndrome had a genetic component, one might reasonably conclude that the onset of the syndrome did more likely than not have its clinical onset during service. Finally, Dr. F.F. noted that the diabetic neuropathy that was later developed by the claimant was not specifically related to the autoimmune polyglandular syndrome but was simply one of the known complications of any type of diabetes mellitus.
In reviewing the evidence of record, there are numerous diagnoses of diabetes mellitus, type I, ulcerative colitis/Crohn's disease, and diabetic neuropathy of the hand, feet, and ankles. Thus, the threshold requirement of current disability has clearly been met with respect to all of the Veteran's claims.
However, while the Veteran is certainly competent to relate the numerous pertinent symptoms he has experienced since service, he is not considered competent to relate those symptoms to a specific diagnosis or etiology, especially here, where the diagnosis and etiology of his claimed disabilities has been the topic of significant expert debate.
Thus, in order to establish service connection for the Veteran's diabetes, ulcerative colitis, and diabetic neuropathy of the hands, feet, and ankles, it will be necessary for the medical evidence to demonstrate that these disorders either had their onset during active service or are related to service-connected disability. In this regard, the opinions addressing entitlement to service connection for the Veteran's diabetes, ulcerative colitis, and diabetic neuropathy are the opinion of VA endocrinologist, A.S., in March 1997, the opinions of C.C. in 1998/1999 and July 2007, the opinion of R.P. in April 2005, the opinion of K.C. in November 2005, the opinion of Dr. Bash in April 2007, and the expert medical opinion in February 2011. Interestingly, three of the examiners provided medical opinions against the Veteran's claims (C.C., R.P., and K.C.), and with the addition of the February 2011 expert medical opinion, there are now three opinions in support of the Veteran's claims.
As the Board does not find that the opinions against the claims are any more persuasive than the opinions in favor of the claims (especially given the very thorough and clearly expressed opinion of the independent expert), the Board finds that the evidence is at least in equipoise as to whether the Veteran's diabetes mellitus, type I, and ulcerative colitis/Crohn's disease were subsequent manifestations of an autoimmune polyglandular syndrome that had its onset during active service, and that the grant of service connection for diabetes mellitus, type I, and ulcerative colitis/Crohn's disease is therefore warranted.
In addition, as a result of the Board's decision to grant service connection for diabetes mellitus, type I, based on the opinion of the February 2011 that additionally links the Veteran's diabetic neuropathy as related to his now service-connected diabetes, the Board finds that service connection for diabetic neuropathy of the hands, feet, and ankles is also warranted as secondary to service-connected disability. 38 C.F.R. § 3.310(a).
ORDER
Entitlement to service connection for diabetes mellitus, type I, is granted.
Entitlement to service connection for ulcerative colitis/Crohn's disease is granted.
Entitlement to service connection for diabetic neuropathy of the Veteran's hands, feet, and ankles is granted.