Citation Nr: 0639278 Decision Date: 12/18/06 Archive Date: 01/04/07 DOCKET NO. 04-42 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for diabetes mellitus, as secondary to service-connected alopecia areata and medications. 3. Entitlement to service connection for depression, as secondary to service-connected alopecia areata and medications. 4. Entitlement to service connection for hypothyroidism, as secondary to service-connected alopecia areata and medications. 5. Entitlement to service connection for an autoimmune system condition, as secondary to service-connected alopecia areata and medications. 6. Entitlement to service connection for arthritis, as secondary to service-connected alopecia areata and medications. 7. Entitlement to service connection for diverticulitis, as secondary to service-connected alopecia areata and medications. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from September 1958 to September 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied a rating in excess of 10 percent for alopecia areata and denied service connection for tinnitus, diabetes mellitus, arthritis, thyroid condition, allergies, left shoulder condition, right shoulder condition, diverticulosis, autoimmune system condition, and depression, each as secondary to service-connected alopecia areata. In December 2004, the veteran perfected his appeal for all these issues and requested a hearing before a Decision Review Officer at the RO. In a January 2005 letter, the veteran clarified that his claim for service connection for tinnitus was on a direct basis. In this letter the veteran also withdrew his claims for an increased rating for alopecia areata, and his claims for service connection for left and right shoulder conditions and for allergies, each as secondary to service-connected alopecia areata. In addition, he cancelled his hearing before the Decision Review Officer and requested a hearing before a member of the Board, via the first available travel board or videoconference hearing. In September 2006, the veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. FINDINGS OF FACT 1. There is no medical evidence of record indicating that the veteran currently has tinnitus due to service. 2. Diabetes mellitus was not shown in service or during the first year after service, and the only medical evidence on the question of whether there is a nexus between the current disability and the veteran's military service or the veteran's service-connected alopecia weighs against the claim. 3. Depression was first manifested many years post service, and there is no competent medical evidence or opinion establishing a nexus between the appellant's depression and his military service or his service-connected alopecia. 4. Hypothyroidism was first manifested many years post service, and the only medical evidence on the question of whether there is a nexus between the current disability and the veteran's military service or the veteran's service- connected alopecia weighs against the claim. 5. An autoimmune system condition was first manifested many years post service, and the only medical evidence on the question of whether there is a nexus between the current disability and the veteran's military service or the veteran's service-connected alopecia weighs against the claim. 6. Arthritis was not shown in service or during the first year after service, and there is no competent medical evidence or opinion establishing a nexus between the veteran's arthritis and his military service or his service- connected alopecia. 7. Diverticulitis was first manifested many years post service, and there is no competent medical evidence or opinion establishing a nexus between the appellant's diverticulitis and his military service or his service- connected alopecia. CONCLUSION OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). 2. The criteria for service connection for diabetes mellitus as secondary to service-connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2006). 3. The criteria for depression as secondary to service- connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). 4. The criteria for hypothyroidism as secondary to service- connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). 5. The criteria for an autoimmune system condition as secondary to service-connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A , 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). 6. The criteria for arthritis as secondary to service- connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2006). 7. The criteria for diverticulitis as secondary to service- connected alopecia areata and medications are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006). With respect to VA's duty to notify, the RO sent a letter to the veteran in June 2004 which asked him to submit certain information, and informed him of VA's responsibility concerning obtaining evidence to substantiate his claims. In accordance with the requirements of the VCAA, the letter informed the veteran what evidence and information VA would be obtaining, and essentially asked the veteran to send to VA any information he had to process the claims. The letter also explained that VA would make reasonable efforts to help him get evidence such as medical records, but that he was responsible for providing sufficient information to VA to identify the custodian of any records. VA informed the veteran what he needed to substantiate his claims on appeal. In view of this, the Board finds that the Department's duty to notify has been fully satisfied with respect to each claim on appeal. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court discussed the statutory requirement in 38 U.S.C.A. § 5103(a) that VCAA notice be sent to a claimant before the initial adjudication of his claim. That was accomplished in this case, as the June 2004 letter was sent to the veteran prior to the issuance of the August 2004 rating decision. With respect to VA's duty to assist the veteran, the RO has obtained or attempted to obtain all evidence identified by the veteran. He has not identified any additional evidence pertinent to the claims not already of record, or attempted to be located, or requested by VA. There are no known additional records to obtain. In fact, in March 2006, the RO received correspondence from the veteran that he had no other information or evidence to give to VA to substantiate his claims. He was offered the opportunity to testify at a Board hearing, and did so at a September 2006 videoconference hearing. In addition, the appellant submitted additional duplicate evidence during his hearing with a waiver of initial RO consideration. Finally, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claims for service connection. However the veteran has not been provided notice of the type of evidence necessary to establish to establish a disability rating or an effective date for each of the disabilities on appeal. Despite the inadequate notice, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection for each of the claims on appeal is not warranted. Consequently, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran in not notifying him of the evidence pertinent to these elements. II. Analysis A disability may be directly service connected when there is evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. § 1110; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, 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). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). A disability is also service connected if it is proximately due to or the result of a service connected disease or injury. 3 8 C.F.R. § 3.310(a). Secondary service connection may also be established when there is aggravation of a veteran's non-service connected condition that is proximately due to or the result of a service-connected condition. Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A. Tinnitus The veteran asserts that he has tinnitus as a result of loud noise exposure while serving as a gunner in service. Service medical records are negative for complaints of hearing problems or ringing in the ears. VA outpatient medical records are negative for complaints, findings or diagnosis of tinnitus. The veteran was requested to submit evidence of tinnitus by VA letter dated in June 2004. However, he has not submitted any medical evidence of currently diagnosed tinnitus or indicated that any such evidence is available. In fact, by a March 2006 letter the veteran indicated that he had no other information or evidence to substantiate his claim. In the absence of medical evidence showing that the veteran has a diagnosis of tinnitus which is related to service, the Board finds that the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Depression, Arthritis, and Diverticulitis The veteran contends that these conditions are a result of alleged exposure to DDT in service, or in the alternative, secondary to his service-connected alopecia areata and related medications. Reviewing the evidence of record, the Board finds that the preponderance of the evidence is against each of these claims of entitlement to service connection. The veteran's service medical records (SMRs) are negative for any complaints, findings or diagnosis of depression, arthritis, or diverticulitis. There is no evidence of arthritis manifest to a compensable degree within one year of discharge. A VA examination in December 1974 revealed normal gastrointestinal and psychiatric examinations. VA outpatient records reflect the first objective medical evidence of diverticulosis in February 1999, depression in August 1997, and arthritis in November 1999. The Board points out that passage of so many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3f 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no objective medical evidence etiologically linking any of these disabilities to the veteran's active military service or his service-connected alopecia areata and medications. See Espiritu v Derwinski, 2 Vet. App. 492, 494 (1992); Layno v. Brown, 6 Vet. App. 465 (1994); Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); and Hasty v. Brown, 13 Vet. App. 230 (1999). As a layman, the veteran, himself, is not qualified to provide a competent medical opinion etiologically linking his currently diagnosed depression, arthritis, and diverticulitis to service or any incident therein, which ended many years ago. Id. And unfortunately, there is no objective medical evidence on record establishing this necessary link. Therefore, for all the foregoing reasons, each of these claims for service connection must be denied. As the preponderance of the evidence is against each claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Diabetes Mellitus, Hypothyroidism, and an Autoimmune System Condition A review of the veteran's service medical records reveals no manifestations of diabetes mellitus, hypothyroidism or an autoimmune system condition other than alopecia for which service connection has already been established. In addition, there is no evidence of diabetes mellitus manifest to a compensable degree within one year of discharge. A VA examination in December 1974 was negative for findings of any of the above claimed conditions, aside from the already service-connected alopecia. In fact, VA outpatient records reflect that the veteran was first diagnosed with hypothyroidism in August 1997 and diabetes in March 2000. As noted above, the passage of so many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson, supra Although the veteran alleges that all the conditions were incurred as a result of DDT impregnated fatigues in service, there is no evidence of such exposure much less any medical evidence or opinion that such exposure resulted in these claimed conditions. In this regard, an April 2004 VA dermatology record reflects that the veteran questioned whether his service-connected alopecia could be related to chemical exposure during his time in service. The VA physician noted that he educated the veteran that this process (alopecia) is an autoimmune disorder akin to diabetes and thyroid disorders (which is why these three disorders often accompany one another) and that they have no evidence or proof that this disorder is caused by any external factors. As to the veteran's alternative theory that his diabetes, hypothyroidism, and autoimmune system condition are secondary to his service-connected alopecia areata and medications, the RO obtained a VA medical opinion in October 2005 to address the veteran's contentions. In the October 2005 report, the VA examiner opined that none of the veteran's conditions were caused by or a result of or aggravated by the prior alopecia that was documented in the 1960s. The examiner stated that he reviewed the veteran's service medical records and had considered the veteran's allegations. In view of the foregoing, the Board concludes that the evidence of record does not contain an opinion which tends to link any of the veteran's claimed conditions to the veteran's active service or to the service-connected alopecia and related medications. Moreover, in the only medical opinion to specifically address the etiology of current diabetes mellitus, hypothyroidism, and an autoimmune system condition, the October 2005 VA examiner opined that none of these conditions were the result of or aggravated by his service- connected alopecia. In addition, the April 2004 VA physician essentially opined that there is no evidence that external factors cause autoimmune disorders, to include diabetes mellitus and thyroid disorders, and thus no nexus to exposure to DDT, if there was any. Hence, the only medical opinions on the matters of current disability and nexus weigh against each of the claims. Furthermore, the Board notes that none of the medical evidence currently of record includes any contrary opinion (i.e., one that actually supports any of the claims), and neither the veteran nor his representative has identified or alluded to the existence of any such opinion, even though the veteran was invited to submit evidence that would tend to substantiate his claims by a June 2004 letter. In addition, the Board has considered the veteran's assertions in connection with each claim on appeal. However, as a layperson without the appropriate medical training and expertise, the veteran is simply not competent provide a probative opinion on a medical matter, to include the diagnosis of a specific disability, or the existence of a medical relationship between a current disability and service or a service-connected disability. 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 all the foregoing reasons, each of these claims must be denied. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each 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 tinnitus is denied Service connection for diabetes mellitus as secondary to service-connected alopecia areata and medications is denied. Service connection for depression as secondary to service- connected alopecia areata and medications is denied. Service connection for hypothyroidism as secondary to service-connected alopecia areata and medications is denied. Service connection for an autoimmune system condition as secondary to service-connected alopecia areata and medications is denied. Service connection for arthritis as secondary to service- connected alopecia areata and medications is denied. Service connection for diverticulitis as secondary to service-connected alopecia areata and medications is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs