Citation Nr: 0300957 Decision Date: 01/16/03 Archive Date: 01/28/03 DOCKET NO. 02-05 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for diabetes mellitus. ATTORNEY FOR THE BOARD Michael T. Osborne, Associate Counsel INTRODUCTION The veteran had active service from October 1980 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in January 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., denying the veteran's service connection claim for diabetes mellitus. The RO accepted the veteran's substantive appeal of its January 2001 rating decision as timely, even though the substantive appeal was filed in May 2002, because the statement of the case and blank Form 9 were initially sent to the wrong address (see notation on the veteran's VA Form 9). FINDING OF FACT No currently diagnosed diabetes mellitus is shown to be causally or etiologically related to the veteran's period of service. CONCLUSION OF LAW Diabetes mellitus was neither incurred in nor aggravated by service, and was not manifest to a degree of 10 percent or more within 1 year following separation from service. 38 U.S.C.A. §§ 1131, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Board observes that recently enacted law (the Veterans Claims Assistance Act of 2000, hereinafter "the VCAA") and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim. These regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.159(c)- (d)) (2002). The VCAA and its implementing regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West 1991 & Supp. 2001); 38 C.F.R. § 3.159(b) (2002). The record reflects that VA has made reasonable efforts to notify the veteran of the information and medical evidence necessary to substantiate his service connection claim for diabetes mellitus. The veteran was issued a letter by the RO in October 1999 which explained, among other things, the evidence needed to support his claim of entitlement to service connection for diabetes mellitus (including evidence of a current disability), direct and presumptive service connection, and what medical evidence was needed to link the veteran's current disability to his active service in order to establish a service connection claim. This letter also outlined the actions that VA would take on the veteran's behalf in obtaining this evidence and requested the veteran's assistance in obtaining medical evidence that supported his claim. In September 2000, Washington Hospital Center, Washington, D.C. (hereinafter, "Washington Hospital Center") issued a letter to the veteran stating that the treatment records that he had requested were unavailable. Thus, the VA is not obligated to make further attempts in order to obtain these records. Finally, the veteran was issued a statement of the case by the RO in August 2001 and a supplemental statement of the case in October 2001. These documents provided the veteran notice of the law and governing regulations (including the implementing regulations noted above) as well as the reasons for the determinations made regarding his claim of service connection for diabetes mellitus. The record on this claim also shows that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. VA has obtained the veteran's service and VA medical records and private medical records from Washington Hospital Center (with the exception of the unavailable treatment records noted above). It is noted that, in December 1994, the veteran indicated that he had had a glucose test and was treated for diabetes at Howard University Hospital, Washington, D.C., in 1977. It does not appear that these records have been associated with the veteran's claims folder. The Board finds, however, that further assistance in developing this claim is not necessary because, as will become apparent below, no reasonable possibility exists that such assistance will aid in the establishment of entitlement to service connection for diabetes mellitus. As such, the veteran will not be prejudiced as a result of the Board deciding this claim. A review of the veteran's service medical records shows no treatment, no pathology, no diagnosis, and no complaints of diabetes mellitus while the veteran was on active service. In the report of medical history that accompanied the veteran's March 1980 pre-enlistment physical examination, the veteran denied any history of sugar or albumin in his urine. Physical examination at that time revealed that the veteran's endocrine system was normal, urinalysis indicated that his urine was negative for albumin and sugar, and no pertinent defects were noted by the examiner. A consultation report dated in April 1980 noted a family history of diabetes, but no treatment or diagnosis of this condition was provided at that time or subsequently while the veteran was in service. A May 1981 "Disposition Form" signed by the veteran noted that he did not have diabetes or sugar in his urine. A report of medical history that accompanied a periodic physical examination of the veteran accomplished in December 1981 indicated that he did not have sugar or albumin in his urine. Physical examination at that time showed that the veteran's endocrine system was normal, urinalysis indicated that his urine was negative for albumin and sugar, and no defects were noted. Between December 1981 and the veteran's discharge from active service in July 1982, following regular visits to service physicians, there was no pertinent complaint of, treatment, or pathology for diabetes mellitus noted in his service medical records. The veteran's claim, filed in August 1999, stated that he had been treated at the VA Medical Center (VAMC) in Washington, D.C. (hereinafter "VAMC D.C.") for diabetes mellitus. A review of the veteran's outpatient treatment records from VAMC D.C. shows that a general medical evaluation was requested after the veteran presented with a history of diabetes mellitus in January 1994. On hospital admission for a hemorrhoidectomy in August 1994, the veteran provided a history of diabetes mellitus to the examining physician. Following his admission, an endocrinology consult was obtained because of the increased blood glucose found incidentally on the veteran's admission labs. The veteran was then started on twice daily isophane insulin. A baseline ophthalmology examination was accomplished during the veteran's hospitalization in August 1994. No diabetic changes to the veteran's vision were noted and the examination findings were normal for both eyes. The discharge diagnosis included, among other things, insulin-dependent diabetes mellitus. The veteran received regular insulin injections at VAMC D.C. following the diagnosis of insulin-dependent diabetes mellitus in August 1994. On admission to the emergency room at VAMC D.C. for complaints of left upper abdominal discomfort in November 1994, a medical history of the veteran was obtained that included, among other things, the earlier diagnosis of insulin-dependent diabetes mellitus. The veteran was examined again in the emergency room at VAMC D.C. in January 1995 after he had checked his blood sugar level at home and found it elevated. The examining physician noted that the veteran was on 36/24 insulin at the time of this January 1995 admission and also that the veteran denied symptoms at that time. The diagnostic impression was rule out true hyperglycemia. In September 2000, the veteran requested that Washington Hospital Center submit to the RO records of treatment from November 1960 supporting his claim of entitlement to service connection for diabetes mellitus. As noted above, Washington Hospital Center responded with a letter to the veteran in September 2000 stating that it had no record of the veteran receiving treatment at its facilities in November 1960. In February 2001, Washington Hospital Center provided the RO with records of the veteran's treatment at that hospital from 1974 and 1977. These records indicate that the veteran was admitted to the emergency room at Washington Hospital Center in February 1974 for an eye injury and also in January 1977 for swelling on his face allegedly as a result of getting punched in the face. Finally, in February 1977, the veteran was seen at the Eye Clinic at Washington Hospital Center and received an eye examination. The veteran essentially claims in his substantive appeal that his diabetes mellitus existed prior to service and was aggravated by service or, in the alternative, that his diabetes mellitus was incurred in service. I. Aggravation Service connection may be granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303 (2002). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (2002). In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this worsening constitutes an increase in disability. See Browder v. Brown, 5 Vet.App. 268, 271 (1993); Hensley v. Brown, 5 Vet.App. 155, 163 (1993). Assuming for the sake of argument that the veteran's diabetes mellitus existed prior to his active service, the first issue is whether this pre-existing condition was aggravated during service. Normally, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (2002). In this case, again assuming for the sake of argument that the veteran's diabetes mellitus existed prior to service, the veteran has not presented any evidence that his diabetes mellitus worsened in any manner beyond that degree of disability that may have existed at the time of entry into service. As noted above, the veteran's service medical records do not show that his pre-existing diabetes mellitus (again, assuming without conceding that it existed prior to active service) underwent an increase in severity during service. The only reference to diabetes mellitus found in the veteran's service medical records occurred in the March 1980 consultation report where a family history of diabetes was noted. Subsequent service medical records do not indicate any pertinent complaints of, treatment, or pathology for diabetes (as noted above). Further, repeated physical examination of the veteran during service revealed that his urinalysis was negative for sugar or albumin, his endocrine system was normal, and found no pertinent defects (as noted above). Without objective medical evidence of an increase in disability caused by active service, there is no basis on which to support a finding that the veteran's pre-existing diabetes mellitus was aggravated by service (again, assuming without conceding that it existed prior to active service). Given that there is no objective medical evidence on which to conclude that the veteran's pre-existing diabetes mellitus was aggravated by service, the remaining evidence on which the veteran relies to support his claim that his pre-existing diabetes mellitus was aggravated by service consists of lay statements that he submitted to the RO. This evidence is insufficient to establish service connection based on a claim of in-service aggravation of a pre-existing medical condition. It is pointed out that, as a layman without proper medical training and expertise, the veteran is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). Therefore, even assuming that the veteran's diabetes mellitus existed prior to his active service, the Board cannot assign any probative value to the veteran's lay assertions that his pre- existing diabetes mellitus was aggravated by service, in determining whether there has been any measured worsening of the disability during service. Significantly, as will be discussed below, and even assuming that the veteran's diabetes mellitus existed prior to his active service, none of the veteran's post- service medical records contain a medical opinion stating that the veteran's current diabetes represents an increase in the underlying pathology of his pre-service diabetes mellitus that was caused by an incident during service. See Lathan v. Brown, 7 Vet.App. 359, 365 (1995). Therefore, as there has been no measured worsening of the disability during service, the Board concludes that there is no evidence in the record of this claim that would support granting the veteran's claim of entitlement to service connection for diabetes mellitus on the basis of in-service aggravation of a pre-existing condition (again, assuming that the veteran's diabetes mellitus existed prior to service). II. Service Incurrence After assuming for the sake of argument that the veteran's diabetes mellitus existed prior to service, and then having ruled out the veteran's contention that his condition was aggravated by service, the issue now becomes whether the veteran's current diabetes mellitus was incurred during service and whether his diabetes mellitus may be presumed to have been incurred within 1 year following separation from service. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in current disability was incurred coincident with service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(a) (2002). A chronic disease will be considered to have been incurred in service when manifested to a degree of 10 percent or more within 1 year following separation from active service. See 38 C.F.R. § 3.307 (2002). Diabetes mellitus shall be considered a chronic disease within the meaning of 38 C.F.R. § 3.307. See 38 C.F.R. § 3.309 (2002). Taking into account the evidence outlined above, the Board finds that the veteran is not entitled to service connection for diabetes mellitus on the basis that this condition was incurred in service or was manifest within 1 year following separation from service. As noted above, the veteran's service medical records are devoid of any reference to a finding, diagnosis, or treatment for diabetes mellitus during his period of active service or within 1 year following his separation from service. In fact, the first definitive diagnosis of diabetes mellitus occurred in August 1994, twelve years after the veteran's separation from service. Beyond the veteran's service medical records, which do not demonstrate that his current diabetes mellitus was incurred in service, the remaining evidence on which the veteran relies to support his claim of entitlement to service connection for diabetes mellitus on the basis that this condition was incurred in service are lay statements that he submitted to the RO. As with the veteran's claim that his current diabetes mellitus existed prior to service and was aggravated by service (hereinafter, "the veteran's aggravation claim"), the lay statements that he submitted to the RO are insufficient to establish that his current diabetes mellitus was incurred in service or was manifest within 1 year following separation from service and that he is entitled to claim service connection on that basis. It is pointed out that, as a layman without proper medical training and expertise, the veteran is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Espiritu, supra. Therefore, as with the veteran's aggravation claim, the Board cannot assign any probative value to the veteran's lay assertions that his diabetes mellitus was incurred in service. In conclusion, the Board finds that even though the Howard University records identified by the veteran were not associated with this claim, as noted above, there is no prejudice to the veteran in its consideration of this claim on the merits in the first instance. See Bernard v. Brown, 4 Vet.App. 384, 394 (1995); VAOGCPREC 16-92 (1992); 57 Fed.Reg. 49747 (1992). As noted above, the duty to notify and the duty to assist the veteran in developing evidence to support his claim of entitlement to service connection for diabetes mellitus have been met. Under either theory advanced by the veteran on appeal - that his diabetes mellitus existed prior to service and was aggravated by service or that he incurred diabetes mellitus during service - his claim of entitlement to service connection for diabetes mellitus should be denied. There is no competent medical evidence on the record of this claim that the veteran's diabetes mellitus was aggravated by service (if it existed prior to service), was incurred in service, or was manifest within 1 year following his separation from service. Therefore, given the particular facts of this case and given that the RO complied with the duty to notify and duty to assist, the Board finds that further assistance to the veteran in developing this claim is not warranted, as there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 1991 & Supp. 2002). Given the foregoing, the Board denies the veteran's claim of entitlement to service connection for diabetes mellitus. ORDER Entitlement to service connection for diabetes mellitus is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.