Citation Nr: 0810340 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-34 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a heart condition, to include sinus bradycardia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Air Force from September 1965 to December 1968, and with the United States Marine Corps from March 1977 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for type II diabetes mellitus and a heart condition. The veteran field a Notice of Disagreement (NOD) in March 2005, and a Statement of the Case (SOC) was issued in August 2005. The veteran perfected his appeal with the timely filing of a VA Form 9, Appeal to Board of Veterans' Appeals, in October 2005. A Supplemental SOC (SSOC) was issued in September 2006. The veteran has submitted additional evidence since that time, along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. FINDINGS OF FACT 1. Type II diabetes mellitus was not incurred during active duty service, nor was it manifested to a compensable degree within the first post-service year, the veteran was not exposed to herbicides. 2. There is no currently diagnosed chronic heart disability. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, type II, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. Service connection for a heart condition, to include sinus bradycardia, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. VA should inform the appellant of what information and evidence VA will seek to provide, and what information and evidence the claimant is expected to provide. Proper notice should invite 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. Here, the VCAA duty to notify was satisfied by way of a letter(s) sent to the appellant in February 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA additionally has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records from VA Medical Center (VAMC) Altoona and complete service treatment records, and has requested, and received, copies of private medical records from Dr. SJP and Dr. JSM on the veteran's behalf. The veteran submitted copies of service medical records and statements from Dr. SJP. The appellant was afforded a VA medical examination in December 2004. Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Other evidence of record, particularly private orthopedic records and VA examination reports, addresses issues not under consideration here. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialize d education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A disorder will be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumption period, and that the veteran still has the same disorder. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumption period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). If the disorder is not chronic, it will still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Savage, 10 Vet. App. at 497. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Diabetes Mellitus, Type II The Board notes that although the RO developed for evidence of herbicide exposure in Vietnam, and discussed possible entitlement to service connection for diabetes mellitus, type II, based on the presumption related to Agent Orange exposure, the veteran has in fact stated repeatedly that he never served in Vietnam and he had never been exposed to Agent Orange, to his knowledge. Therefore, possible entitlement to service connection for diabetes mellitus as due to herbicide exposure is not considered herein. The veteran has instead argued that he is entitled to direct service connection based on the initial manifestation of signs and symptoms in service, and alternatively that he is entitled to the benefit of presumptive service connection due to diagnosis within the first post service year. Here, however, service medical records reflect no diagnosis of or treatment for diabetes mellitus, type II. Periodic examinations for flight status repeatedly noted no sugar in the urine, and the veteran denied such when asked. While, blood tests revealed fluctuating glucose levels, it is unclear from the record which, if any were fasting bloodwork. In 1990, a the glucose level was 110, which is the end of the "normal" range indicated on the reports. A 113 reading in 1993 was considered high. It dropped to the high 90's until 1998, when a still-normal reading of 107 was noted. At no time did any provider indicate a diabetic or prediabetic condition existed. Dr. JSM, an orthopedist who treated the veteran in November 2001 and January 2002, reported in treatment records that the veteran was "negative for diabetes." VA treatment records from January 2002 to February 2003 reveal no diagnosis of or complaints related to diabetes. In June 2002, blood glucose was 100. However, in February 2003, the veteran informed doctors that dosage on a blood pressure medication had been increased because his "sugar was elevated." Doctors did not indicate any problems with the sugar levels. A VA examination in April 2001 did not indicate any blood sugar problems or complaints. Dr. SJP, the veteran's primary care physician, has treated the veteran from separation in August 2001 to the present. Treatment records reveal elevated blood glucose levels. In January 2002, a reading of 114 was obtained, prompting the doctor to notify the veteran and state that there was a "modest elevation in your blood glucose. This could represent the earliest form of diabetes. This needs to be monitored periodically." The doctor did not, however, diagnose diabetes. In January 2004, a level of 131 was shown. The doctor noted impaired glucose tolerance/diabetes mellitus type II and recommended diet and exercise. In January 2005 correspondence, Dr. SJP stated that he had treated the veteran since 2001 for hyperglycemia. He stated that this disorder was present in service, noting elevated blood sugar of 110 in July 1990, and other unspecified reading over 100 since that time. The doctor stated that over the past year, the veteran met the clinical definition of diabetes, as his last four blood sugars had been between 126 and 134. Dr. SJP felt treatment for diabetes, beyond current diet and exercise was only a year or two off. The veteran submitted a statistical analysis of his laboratory results showing a purported upward trend in blood glucose levels from his time in service to the present. This includes notice that the America Diabetes Association (ADA) considers a blood glucose level of 125 to be evidence of diabetes. From 100 to 125 is considered by the ADA as pre- diabetic. The medical evidence clearly indicates that diabetes was not diagnosed until 2004. At no time while the veteran was in service was diabetes diagnosed, nor does the medical evidence in any way support a conclusion that diabetes should have been diagnosed. The veteran's blood sugar readings in service were, with a single exception in 1993, within the normal range noted on all lab reports. The "upward trend" the veteran cites is not persuasive, as the actual test results show that the veteran reduced his blood sugars from high points in the early 1990's to lows in the late 90's. Readings did rise again closer to separation, but they were lower than or equal to the highest readings in service. Consistent increases in blood sugar did not appear until after separation from service. Diabetes was not diagnosed until early 2004, more than two years after separation. This is beyond the applicable one year presumptive period, and hence service connection under 38 C.F.R. § 3.307 is not applicable. Direct service connection is also not warranted, as there is no diagnosis of the disease in service. Dr. SJP diagnoses the pre-2004 condition not as diabetes, but as hyperglycemia. Being "pre-diabetic" or hyperglycemic does not qualify as the first manifestation or onset of the of the disease. It is a demonstration of a risk factor, not a diagnosis. In the absence of a diagnosis in service or evidence of the first manifestation of the actual disease in service, the claim must be denied. Heart Condition The veteran claims service connection for a heart condition manifested by abnormal electrocardiograms (ECG). He is diagnosed with, and service connected for, long standing hypertension. Service medical records reveal repeated findings of sinus bradycardia on ECG, from 1984 forward, though not on every test. Sinus bradycardia is a slow heartbeat. A left axis deviation was also regularly noted. In 1998, a "left arterial enlargement" was reported, but this notation was not made on prior or subsequent testing. No heart disease or dysfunction was diagnosed, and the veteran was not disqualified from flight status. Dr. SJP's treatment records include no findings or diagnoses of a heart disease or disability. A 2003 ECG continued to show sinus bradycardia and a left axis deviation. In September 2005, Dr. SJP stated that he was following the "mild cardiac conduction abnormality" and felt that some slight progression had been shown over the years. The veteran was not under treatment for a cardiac condition, however, and the doctor did "not know if he will ever need treatment for the cardiac problem." VA treatment records from January 2002 to February 2003 show no diagnosis of any heart condition or disease, and testing shows a normal rhythm. At a December 2004 VA heart examination, the veteran complained of dyspnea after running at a fast pace on a treadmill for 5 to 10 minutes. He denies chest pains, dizziness, or syncope. No heart abnormality was noted on testing. The examiner indicated that a sinus bradycardia was present, but was unrelated to hypertension or diabetes. The Board finds that service connection for a heart condition is not warranted, as there is currently no diagnosed disease or disability subject to service connection. Sinus bradycardia, as found in repeated objective testing since 1984, is not a disease or disability; it is a laboratory finding which falls, in the absence of underlying disease, within the normal variation of medical experience. Sinus bradycardia is especially common is well trained athletes and others in good physical condition. Even the veteran's treating physician has indicated that there is no current heart disability, stating that no treatment is required and may never be. In the absence of a current disability or disease, service connection must be denied. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for a heart condition, to include sinus bradycardia, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs