Citation Nr: 1522099 Decision Date: 05/26/15 Archive Date: 06/11/15 DOCKET NO. 06-36 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to an effective date earlier than May 29, 2014, for the grant of service connection for hypertensive heart disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from April 1984 to September 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and August 2014 rating decisions by the Waco, Texas and Phoenix, Arizona Department of Veterans Affairs Regional Offices (RO), respectively. The Veteran was initially denied service connection for a heart disability. However, an August 2014 rating decision granted service connection for hypertensive heart disease with an effective date of May 29, 2014. The Veteran has argued that the effective date should be October 1, 2004, the first day of the month following his separation from active service. FINDINGS OF FACT 1. The preponderance of the evidence of record indicates that the Veteran does not have a diagnosis of diabetes mellitus. 2. Resolving all reasonable doubt in favor of the Veteran, a cardiac disability was first shown on active service with symptoms of left ventricular hypertrophy. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2014). 2. The criteria for an effective date of October 1, 2004, for service connection for a heart disability, have been met. 38 U.S.C.A. §§ 5110, 5107 (West 2014); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which part, 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2014); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the Veteran has been provided adequate notice in response to the claims. The record shows that the Veteran received notification in July 2004 advising what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. Additionally, a March 2006 letter provided the Veteran with appropriate notice with of the disability rating and effective date elements of his claims. The Board also finds the Veteran has been provided adequate assistance in response to the claims. The Veteran's service medical records are of record. Post-service VA treatment records have been obtained. The Veteran has been provided VA examinations. Therefore, remand for additional VA examination is not necessary and there is no bar to proceeding with a final decision in this case. Neither the Veteran nor representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection may also be established for certain chronic diseases manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309 (2014). The Veteran contends that he is entitled to service connection for diabetes mellitus, as that disability was diagnosed while on active service. Specifically, the Veteran has reported that sometime in 2003 while on active service, he was referred to endocrinology for symptoms of night sweats, polyuria, and dipsia. He reports that lab testing at that time revealed that his blood sugar was over 200 and he was given a diagnosis of diabetes mellitus and prescribed metformin. A review of the Veteran's extensive service medical records shows that in February 2004 the Veteran was assigned a diagnosis of dysmetabolic syndrome and in March 2004 he was prescribed metformin. A May 2004 annual examination notes a reported prior medical history that included "diabetes mellitus." Finally on the June 2004 separation examination, the Veteran reported a history of high or low blood pressure and explained that his "body was producing too much insulin," but did not report that he had been diagnosed with diabetes mellitus. The remainder of the service medical records are silent for any diagnosis of diabetes mellitus. VA outpatient treatment records consistently list diabetes mellitus in the Veteran's list of medical history and note that he has been prescribed metformin for diabetes mellitus. However, upon careful review of the VA outpatient treatment records it is clear that these records are based solely on the history as reported by the Veteran, and that the none of the Veteran's treating VA clinicians have ever actually assigned the Veteran a diagnosis of diabetes mellitus. At a July 2004 pre-discharge examination, the Veteran reported that he had been diagnosed with diabetes mellitus and placed on metformin. On examination, the examiner noted that the Veteran did not meet the criteria for a diagnosis of diabetes mellitus and opined that the use of metformin was most likely to prevent diabetes secondary to obesity. At a March 2007 VA examination, the Veteran again reported that he had been diagnosed with diabetes mellitus while on active service and prescribed metformin as treatment. Following review of the claims file and examination, the examiner noted that the Veteran's historical lab work, and the lab work at the time of the examination, did not show that the Veteran met the criteria for diabetes mellitus at any point during the period on appeal. The examiner explained that as a laboratory diagnosis of diabetes mellitus could not be confirmed, it should be noted metformin was sometimes used for pre-diabetes and the related metabolic syndrome. At a May 2014 VA examination, the examiner noted the Veteran's history of metformin use. However, on examination there was no indication the Veteran met the criteria for a diagnosis of diabetes mellitus. The examiner noted the Veteran's historical lab results did not show he had ever met the criteria for a diagnosis of diabetes mellitus and opined that the Veteran did not have a diagnosis of diabetes mellitus. While the Veteran might sincerely believe that he has diabetes mellitus that is related to active service and lay persons are competent to provide opinions on some medical issues, in this case the question of whether the Veteran has a medical diagnosis of diabetes mellitus falls outside the realm of common knowledge of a lay person and is an issue requiring medical expertise. While the Veteran is competent to relate a general history of elevated blood sugar results and that he was prescribed metformin, he is not competent to diagnose a disability based on those symptoms. Therefore, the Veteran is not competent to provide a diagnosis or a medical opinion with respect to the issue of entitlement to service connection for diabetes mellitus. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the preponderance of the medical evidence of record is against a finding that the Veteran has a diagnosis of diabetes mellitus, service connection for diabetes mellitus is not warranted. Congress has specifically limited entitlement to service connection to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence during or contemporary to the pendency of this claim does not show that it is at least as likely as not that the Veteran has diabetes mellitus for which service connection could be granted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014). The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date shall be the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2014); 38 C.F.R. § 3.400(b)(2) (2014). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2014). Claim or application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014). The Veteran, through his representative, has alleged that he should be assigned an effective date of October 1, 2004, the date immediately following his separation from active service, for the grant of service connection for hypertensive heart disease. Specifically, the Veteran has asserted that he had a heart disability while on active service and that heart disability continued, eventually manifesting in the May 2014 diagnosis of hypertensive heart disease. The evidence of record shows that the Veteran was initially denied service connection for a heart disability in the April 2005 rating decision currently on appeal. At a July 2004 pre-discharge examination, it was noted that the Veteran had left ventricular hypertrophy, which had been found during active service, and caused symptoms of chest pain. At a July 2004 VA examination, the Veteran was noted to have mild left ventricular hypertrophy via a January 2004 echocardiogram (echo), while on active service and a history of high blood pressure. On examination he was noted to have a mild grade I heart murmur. The Veteran was assigned a final diagnosis of left ventricular hypertrophy and a grade I heart murmur. The examiner did not provide any opinion with regard to the etiology of those conditions. At an August 2009 VA hypertension examination, it was noted that the Veteran's hypertension caused complications affecting his heart. Specifically, the Veteran's hypertension was noted to be the cause of left ventricular hypertrophy, but that hypertensive heart disease was not present. At a May 2014 VA examination, the Veteran was assigned a diagnosis of hypertensive heart disease. The examiner also noted a continued finding of left ventricular hypertrophy. The examiner opined that the Veteran's hypertensive heart disease and current left ventricular hypertrophy were a continuation of the left ventricular hypertrophy found while the Veteran was on active service, which was noted to be caused by his service-connected hypertension. A July 2014 VA addendum opinion notes that the earliest record of a clinically substantiated diagnosis of hypertensive heart disease was May 29, 2014, and that the 2003 echo did not show left ventricular hypertrophy. However, the Board finds that addendum to be inadequate, as it is in direct contradiction to all the other evidence of record with repeatedly notes that the Veteran was noted to have left ventricular hypertrophy during and after active service, and that symptom continued until the May 29, 2014 diagnosis of hypertensive heart disease. Further, the May 2014 VA examiner competently opined that the Veteran's hypertensive heart disease was related to the in-service finding of left ventricular hypertrophy. Based on the evidence of record, the Board finds that the Veteran's left ventricular hypertrophy, found in-service, was an early manifestation and symptom of current hypertensive heart disease. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that his claim for an earlier effective date for service connection for a heart disability is granted with an effective date of October 1, 2004, the date following the Veteran's separation from active service. The Board finds that an earlier effective date prior to October 1, 2004, is not warranted because the Veteran was still on active service and therefore not entitled to VA benefits. 38 C.F.R. § 3.400(o)(2) (2014). Reasonable doubt must be resolved in favor of the claimant. Therefore, the Veteran's claim for an earlier effective date for service connection for a heart disability is warranted and an effective date of October 1, 2004, but not earlier, is granted. 38 C.F.R. 3.102(b) (2014), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to an earlier effective date of October 1, 2004, but not earlier, for service connection for a heart disability, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs