Citation Nr: 0521368 Decision Date: 08/08/05 Archive Date: 08/19/05 DOCKET NO. 01-06 373 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Associate Counsel INTRODUCTION The veteran served on active duty from November 1958 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision in which the RO denied service connection for diabetes mellitus. The veteran filed a notice of disagreement (NOD) in August 2000, and a statement of the case (SOC) was issued later that month. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2001. In December 2001, the veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is associated with the claims file. In July 2003, the Board remanded this matter to the RO for further action. After completing the requested action, the RO continued its denial of service connection for diabetes mellitus (as reflected in a May 2005 supplemental SOC (SSOC)), and returned the matter to the Board.. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Diabetes mellitus was not shown in service, or for many years thereafter, and there is no competent evidence of a nexus between the veteran's currently diagnosed diabetes mellitus and military service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations essentially include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision the claim on appeal has been accomplished. Through the August 2000 SOC, the April 2002, August 2002 and May 2005 SSOCs, and the RO's letters of December 2001, September 2003 and March 2005, the RO notified the veteran and his representative of the legal criteria governing the claim, the evidence that has been considered in connection with the appeal, and the bases for the denial of the claim. After each, they were given the opportunity to respond. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support the claim. Pursuant to the aforementioned documents, the veteran also has been afforded the opportunity to present evidence and argument in support of his claim. In its December 2001 letter, the RO requested that the veteran provide authorization to enable it to obtain any outstanding private medical records, and information to enable it to obtain any VA treatment records, as well as requested that the veteran submit any additional evidence in his possession. In a September 2003 letter, the RO requested that the veteran provide information to enable it to obtain any outstanding VA or private treatment records, employment records, records from other Federal agencies, or records from state or local agencies. The RO also requested that the veteran submit any additional evidence in support of his claim. In its March 2005 letter, the RO again requested that the veteran provide authorization to obtain any outstanding private medical records, and information to obtain any VA treatment records, employment records, records from other Federal agencies, or records from state or local agencies, as well as requested that the veteran submit any additional evidence in his possession. Through these letters, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). The Board points out that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained above, all of these requirements have been met in the instant case. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA- administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the case now before the Board, the documents meeting the VCAA's notice requirements were provided to the veteran after the July 2000 rating action on appeal. The Board finds that the lack of full, pre-adjudication notice in this case does not, in any way, prejudice the veteran. In this regard, the Board points out that the Court has also held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds that, in this case, the delay in issuing the section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and re-adjudicated after notice was provided. As indicated above, the RO issued the August 2000 SOC explaining what was needed to substantiate the claim within the same month of the veteran's NOD of the July 2000 rating decision on appeal, and the veteran was thereafter afforded the opportunity to respond. Moreover, the RO notified the veteran of the VCAA duties to notify and assist in its letters of December 2001, September 2003 and March 2005; neither in response to those letters, nor at any other point during the pendency of this appeal, has the veteran informed the RO of the existence of any evidence that has not already been obtained. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with claim being decided. As indicated below, the RO has obtained the veteran's service medical records (SMRs), as well as outpatient treatment reports from the Jesse Brown VA Medical Center (VAMC) in Chicago, dated from June 1998 to September 2004, and from the Northern Arizona VA Health Care System in Prescott, Arizona (hereinafter "Prescott VAMC"), dated from January 2001 to April 2001. The veteran has submitted in support of his claim treatment records from the Mayo Clinic, in Rochester, Minnesota, dated in June 1997; a January 2000 letter from Dr. P. Mueller; copies of an internet article; and numerous personal statements. He also gave his testimony during a December 2001 DRO hearing, the transcript of which a transcript is of record. The RO also has expended appropriate and sufficient efforts to obtain additional in- and post-service records. The RO ttempted to obtain any outstanding in-service hospitalization records from the 831st TAC Hospital at George Air Force Base (AFB), in Victorville, California, which the veteran has stated may show the presence of diabetes mellitus in service; however, a March 2005 report of contact reflects that the George AFB had since been closed, and that other current military installations in the vicinity did not have any information concerning this facility. The RO has also attempted to obtain these records from the National Personnel Records Center (NPRC), and in April 2005, the NPRC responded that the requested records were not on file. Additionally, with regard to the RO's efforts to obtain all relevant post- service medical records, an October 2004 response from the Jesse Brown VAMC indicates that there were no available treatment records for the veteran for the period from service discharge, up until May 1998. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional, existing pertinent evidence that needs to be obtained. Hence, the Board finds that any failure on VA's part in not fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102. Under these circumstances, the Board finds that there is no prejudice to the veteran in proceeding, at this juncture, with a decision on the claim on appeal. II. Background The veteran's SMRs reflect no findings, complaints, or diagnosis of diabetes mellitus. The report of service entrance examination notes that urinalysis showed specific gravity test results of 1.106, and was negative for albumin or sugar. On separation, a urinalysis revealed a specific gravity of 1.023, and was again negative for albumin or sugar. A June 1997 treatment record from the Mayo Clinic reflects a physician's diagnosis of type II diabetes mellitus. The recommendation was that the veteran regulate his diabetes through diet and exercise. In a January 2000 letter Dr. P. Mueller noted that he had evaluated the veteran in June 1997, at which time the veteran was found to have type II diabetes mellitus. He stated that this diagnosis had been established through laboratory studies that revealed fasting hyperglycemia and an elevated glycosylated hemoglobin, and that through diet and exercise the veteran was able to achieve a normal fasting glucose and normal glycosylated hemoglobin. According to this physician, although some treatment providers would refer to the veteran's condition as "borderline diabetes," what the veteran actually had was weight-exercise-controlled type II diabetes. In a June 2000 statement, the veteran related that during service a military physician had informed him that he had "borderline diabetes," but that he did not need to be concerned about this condition because it was common for some individuals to have lab test results, which suggested borderline diabetic problems. In an April 2001 statement, the veteran contended that the specific gravity readings obtained in connection with urinalysis testing during service, in particular, the increase from the reading on induction to that noted on separation (from 1.016 to 1.023), indicated that diabetes mellitus may have had an onset during active duty service. During the December 2001 DRO hearing, the veteran testified that he had had a problem with dizziness during service, for which he sought medical treatment. He stated that he was also treated on various instances in service for tonsillitis, and that on one occasion, a military physician informed him that he had some unusual readings following a urinalysis which showed that he might be a borderline diabetic. The veteran also indicated that all of his service was state-side at various Air Force Bases located in California. He stated that the first time he was ever actually diagnosed as a diabetic following discharge from service, was in 1997, and since then, he had been able to control his diabetes entirely through diet modification. In his June 2002 statement, the veteran alleged that another factor that may have contributed to his development of diabetes mellitus was that, during service, he was continuously exposed to a substance known as JP4 (then included in aircraft jet fuel) as a systems mechanic. The veteran enclosed an internet article pertaining to various health risks associated with exposure to this substance. Records from the Jesse Brown VAMC, dated from June 1998 to September 2004, and from the Prescott VAMC, dated from January 2001 to April 2001, note the veteran's ongoing symptoms of and treatment for diabetes mellitus. III. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may also be presumed, for certain chronic diseases, such as diabetes mellitus, which develop to a compensable degree (10 percent for diabetes) within a prescribed period after discharge from service (one year for diabetes), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. 3.307, 3.309 (2004). While a chronic disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Considering the medical evidence in light of the above-noted criteria, the Board finds that service connection for diabetes mellitus is not warranted. Although the veteran has a current diagnosis of diabetes mellitus, type II, there simply is no evidence or opinion even suggesting a nexus between such disability and service. As noted above, the veteran's SMRs reflect no indicia that diabetes mellitus was then present. Notably, the results of urinalysis testing on both induction and separation examinations were negative for albumin or sugar, and no abnormalities were noted in connection with these tests. While, as noted above, the RO has made several attempts to obtain in-service hospitalization records-which the veteran has indicated might suggest the presence of diabetes during service-all of these attempts have been unsuccessful. Currently, the earliest indication of a diagnosis of diabetes of record is in June 1997, approximately 30 years after the veteran's service, and none of the medical records include any comments suggesting that diabetes was manifest at any earlier time. Moreover, there is no competent medical opinion establishing a nexus between current diabetes and service. Indeed, none of the medical records currently associated with the claims file include any medical opinion addressing the etiology of the veteran's diabetes, and neither the veteran nor his representative has alluded to the existence of any such medical opinion-despite having been given numerous opportunities to present evidence and/or information pertaining to existing evidence in support of the veteran's claim. The Board does not doubt the sincerity of the veteran's belief that current diabetes mellitus is medically related to his military service. However, as a layperson without the appropriate medical training and expertise, the veteran simply is not competent to provide a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For similar reasons, the veteran's assertions as to what a military physician told him-that he appeared to have borderline diabetes-does not constitute competent or probative evidence to support the claim. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Under these circumstances, the Board must conclude that the claim for service connection for diabetes mellitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the competent evidence simply does not support the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs