Citation NR: 9737433 Decision Date: 11/06/97 Archive Date: 11/12/97 DOCKET NO. 94-01 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a left great toe injury. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M.L. Rogoff, Associate Counsel INTRODUCTION The veteran had active duty from June 1951 to December 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 1993 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for residual of a left great toe injury and diabetes mellitus. The Board, in January 1996, remanded the case to the RO for additional development, including obtaining medical evidence and duty logs, which might have been relevant to the veteran’s claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he injured his left great toe during service and that during the course of treatment for that injury, blood testing revealed early indications of diabetes mellitus, which was diagnosed subsequent to service. He contends that service connection is warranted for these disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for residuals of a left great toe injury and diabetes mellitus are well grounded. FINDINGS OF FACT 1. Service medical records from the Chelsea Naval Hospital reveal no complaints of, treatment for, or diagnosis of a left great toe injury or diabetes mellitus. 2. Post-service medical records indicate that the veteran was first treated for diabetes in November 1982. Current medical records show diabetes mellitus and complaints of left foot pain. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for residuals of a left great toe injury. 38 U.S.C.A. § 5107(a) (West 1991& Supp. 1997). 2. The veteran has not submitted evidence of a well-grounded claim for service connection for diabetes mellitus. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that most of the veteran's service medical records are unavailable as they were possibly destroyed by a fire at the National Personnel Records Center (NPRC) in 1973. The Board is aware that in such situations, it has a heightened duty to assist the veteran in the development of his claim. This duty includes the search for alternate medical records as well as a heightened obligation on the part of the Board to explain its findings and conclusions and carefully consider the benefit- of-the-doubt rule. See Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). Background Private medical records from the Joslin Diabetes Center dating from November 1982 to October 1985 are of record. These records revealed that in November 1982, the veteran was diagnosed with Type II diabetes mellitus. At that time, he indicated that he had not been treated before and had never taken insulin. Throughout the course of his treatment, he complained of headaches, numbness in his ankles and nocturia. The veteran submitted his application for VA compensation in November 1992. At that time, he requested compensation for an injury to his right toe and for sugar diabetes found in 1951. He indicated that his right toe was operated on 3 times, and each time he was told that he had a sugar diabetes problem. He indicated that he did not have any copies of his service medical records. In a December 1992 letter, the veteran revised his claim, stating that it was his left toe not his right. He indicated that he had been treated for the left toe since his discharge, which toe had become painful with the past few months. Medical records from several private physicians were associated with the claims folder. Many of these records dating from April 1991 to December 1992 evidence treatment for unrelated disorders. However, throughout 1991, the veteran was treated for left foot pain. It was noted that the veteran’s orthotics may have caused an irritation. A December 1992 letter from one physician indicated that the veteran’s records could not be located, but he remembered treating him for either an ingrown nail or a sprained ankle. The veteran submitted a copy of his DA Form 20, which revealed that he was admitted to the U.S. Naval Hospital, Chelsea, Massachusetts in June 1952. In December 1992, the National Personnel Records Center (NPRC) verified that the veteran’s service records were unavailable due to fire related service. The RO notified the veteran that due to the fire at the NPRC, they were encountering difficulties in obtaining his military records. It was requested that he complete NA Form 13055 in order to facilitate a search for his records, which he did. In April 1993, the NPRC notified the RO that a search of the morning reports of the 3650th AFW from June 1951 to September 1951 provided negative results. Medical records from the 131st A.B. Group and the 131st Install. Sq. from October 1951 to December 1951 showed that the veteran was assigned, but there were no remarks pertaining to illness or treatment. In his April 1993 Notice of Disagreement, the veteran stated that he was in the Sampson A.F.B. Hospital in July 1951 for three months for surgery for his left great toe. During that time, he was told by doctors that the healing process would be a greater length of time because he had a mild case of sugar diabetes. He stated that he was also hospitalized at the Chelsea Naval Hospital in 1952 for a reoccurrence of the same problem with diabetes. The veteran, in his June 1993 substantive appeal, explained that his left great toe disability and diabetes mellitus were incurred during active duty. He stated that he had surgery on his left great toe in 1951 as result of “being spiked from a piece of steel on a cleat of another serviceman’s shoe.” During that surgery, he was told he had sugar diabetes. A personal hearing was performed at the RO in October 1993. The veteran testified that he did not have problems with diabetes mellitus or a left great toe disability prior to service. He reported that his left great toe was cut when he slid into base during basic training. He let it go for a few days, but sought treatment when it was not healing. He was told by the doctor at the Sampson Air Force Base Hospital that he was a diabetic and remained in the hospital for 3 weeks. His toe required additional treatment after his discharge from that hospital. He was admitted to the Chelsea Naval Hospital for 3 weeks and had another toe surgery, and was again told he was a diabetic. He was not given any medication for the diabetes, but was given pills for the toe. The veteran testified that he was not treated for anything else during service and did not have an exit examination. He submitted 3 photographs of himself posed while on a military base. Within a year of discharge, he went to Lowell, Massachusetts to file a claim and a doctor told him that he did not have any problems at all, so he left. The earliest evidence he tried to obtain showing that he had diabetes was dated in 1978, but he was unsuccessful. The reason he did not pursue his claim earlier was that he had complete health insurance coverage until recently. Several lay statements were submitted, attesting that the veteran had stated on many occasions that he was diagnosed with diabetes while on active duty. It was also noted that he did not have diabetes prior to service. After another request to search for records, the NPRC, in December 1993, notified the RO that there were no Surgeon General Officer’s reports for this veteran during his period of service. At a hearing before the Board in April 1994, the veteran testified that he was tested for diabetes during the course of his hospitalization at the Chelsea Naval Hospital in Chelsea, Massachusetts in June 1952. The veteran's representative asserted that although attempts had been made by the RO to obtain additional service medical records, there had been no specific attempt to obtain hospital records directly from the Chelsea Naval Hospital. He testified that he was hospitalized and/or treated as a day patient at this facility for his toe injury for a period of several weeks. The veteran further testified that as a result of his treatment at the Chelsea Naval Hospital in June 1952, he contacted his next duty station, George Air Force Base in Victorville, California, in advance to notify that station of a possible delay in reporting for duty due to his hospitalization and treatment. While the veteran's representative acknowledged that attempts were made to obtain available morning reports of the veteran's unit at George Air Force Base, it was asserted that duty logs from that organization should have been requested and reviewed for any information pertaining to the veteran's medical circumstances at the time. As noted, in January 1996, the Board remanded the veteran’s case for additional development. It was requested that the RO attempt to obtain records of the veteran's hospitalization and treatment at the Chelsea Naval Hospital, Chelsea, Massachusetts, in June 1952, and that the RO also attempt to obtain duty logs from the 131st Installation Squadron, 131st Air Base Group, George Air Force Base, Victorville, California, in July 1952, which might have contained any relevant information pertaining to the veteran's medical circumstances at that time. In an attempt to obtain these records, it was determined that the George Air Force Base had been closed. After several attempts, the NPRC found records from the U.S. Naval Hospital, Chelsea, Massachusetts. These records reveal that the veteran was treated for unguis incarnatus of a right toe nail. The surgical procedure was an excision of an ingrown toe nail of the right foot. The medical history indicated that the veteran crushed his right great toe nail in a door. The toe became infected and drained purulent material. The toe nail was excised and the infection had subsided. The veteran was returned to duty. In a February 1997 supplemental statement of the case, the RO notified the veteran that service connection for residuals of a left great toe injury and diabetes mellitus were denied as these disorders were neither incurred in nor caused by service. Analysis Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (citing Murphy, at 81). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. See Grottveit, 5 Vet.App. at 93 (Court held that lay assertions of medical causation cannot constitute evidence to render a claim well grounded); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). In Caluza v. Brown, 7 Vet.App. 498, 506 (1995) the Court reaffirmed these holdings, stating in order for a claim to be well grounded there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). The Court has also stated that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence satisfying the Grottveit requirement. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). In this case, the veteran contends that he injured his great left toe while sliding into base during basic training. He contends that he was hospitalized for that injury, and was medically diagnosed with diabetes mellitus. He argues that his current left great toe pain and Type II diabetes mellitus were incurred during service and should be considered service-connected. As mentioned, the veteran’s service medical records were destroyed in the 1973 fire. It is noted that the veteran testified that he only received treatment for his left great toe during service and that he did not have a separation examination. Through several attempts, records from the veteran’s 1952 treatment at the Chelsea Naval Hospital were associated with the claims folder. These records reveal treatment for an excision of a right toe nail. The veteran’s right toe infection subsided and he was returned to duty. There was no evidence of a left great toe injury or of blood work which might have revealed the onset of diabetes mellitus during service. Despite the veteran’s contentions that his left toe was injured and he was told he had diabetes mellitus, there is no available medical diagnosis of a left great toe disability or diabetes mellitus during active service. To combat the absence of medical evidence, the veteran has made several statements and has submitted statements from many individuals in support of his claim. After reviewing these statements, it is evident that they are based on a history as reported by the veteran. The Board recognizes that the law specifically provides that service connection may be proven by satisfactory lay evidence, without the support of official records, the absence of such official clinical evidence alone is not sufficient to rebut the lay evidence." Sheets v. Derwinski, 2 Vet.App. 512, 515 (1992); see Peters v. Brown, 6 Vet.App. 540, 543 (1994). However, considering the veteran’s testimony that he was not treated for any other disability other than his left great toe injury and the contradicting medical evidence of record showing an excision of a right toe nail, the veteran’s statements and those statements relying on his reported history are insufficient to warrant a grant of service connection. Although the veteran’s service medical records are not available, those records which were obtained in an effort to substantiate his claim are not supportive. In addition, for certain chronic diseases, including diabetes mellitus, the law provides a presumption of service connection if the disease becomes manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307, 3.309(a). When a disease was not initially manifested during service or within the applicable presumption period, the appellant may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Upon review of the evidence of record the Board finds that there is no clinical evidence indicative of diabetes mellitus until many years after the veteran's separation from service. As the appellant has not presented medical or competent evidence which would justify a belief by a fair and impartial individual that it is plausible that his diabetes mellitus was first incurred in service, or within the presumptive period, this claim must be deemed not well grounded and therefore denied. Furthermore, the veteran's diabetes mellitus was not manifest to a compensable degree within one year of separation. The first medical evidence of treatment for diabetes mellitus of record was dated in November 1982. These findings are shown over twenty years after separation from active service. Consequently, the Board concludes that the veteran has not submitted evidence of well-grounded claims for service connection for residuals a left great toe injury and diabetes mellitus. 38 U.S.C.A. § 5107(a). The Board has considered the holdings of the Court in Robinette v. Brown, 8 Vet.App. 69 (1995) and Epps v. Brown, 9 Vet.App. 341 (1996). The Board finds that the veteran was provided with adequate notice of the basis for the denial of his claim, and of the evidence required to support the claim, in the letters notifying him of the denial of his claim and in the statement and February 1997 supplemental statement of the case. ORDER Entitlement to service connection for residuals of a left great toe injury is denied. Entitlement to service connection for diabetes mellitus is denied. D. C. SPICKLER Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -