Citation Nr: 0810613 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 02-07 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran had active service from December 1975 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran testified at a Board hearing in March 2003. The case was remanded by the Board in December 2003 and February 2006. FINDING OF FACT The veteran's diabetes mellitus was not shown in service or for many years thereafter, nor was it manifested to a compensable degree within one year following the veteran's discharge from service and has not been linked to active service on any basis. CONCLUSION OF LAW The veteran's diabetes mellitus was not incurred or aggravated in service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the VCAA must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in April 2004 and March 2006, VA notified the veteran of the information and evidence needed to substantiate and complete her claim, including what part of that evidence she was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the veteran to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was also provided in the March 2006 letter. Accordingly, the Board finds that VA met its duty to notify the veteran of her rights and responsibilities under the VCAA. With respect to the timing of VCAA notice, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, notice was not given prior to the appealed decision; however, the Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any AOJ action or decision, only finding that appellants are entitled to VCAA- content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based and the Board specifically finds that the veteran was not prejudiced by the post-AOJ decision notice because she was given sufficient time to submit and/or identify any and all evidence necessary to substantiate her claim. In addition, the claim was readjudicated after complete notice was provided, most recently in an October 2007 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Next, VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, 38 C.F.R. § 3.159(c), which includes providing a medical examination when such is necessary to make a decision on the claim. In this case, the veteran has been afforded a VA examination in conjunction with her claim for service connection for diabetes mellitus. The veteran's VA and private medical records have been associated with the claims file. There is no indication that other Federal department or agency records exist that should be requested. The veteran was asked to advise VA if there was any other information or evidence she considered relevant to her claim so that VA could help her by getting that evidence. She was also advised what evidence VA had requested, and notified in statements of the case what evidence had been received. The Board notes that the service medical records are incomplete. An August 1998 Administrative Decision by the RO certified that the veteran's service medical records were unavailable. The lack of complete service medical records was later noted in a May 2002 Statement of the Case and by the veteran during the hearing. However, as will be discussed below, the available evidence is sufficient to adjudicate this appeal. As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating the claim. Thus, VA's duty to assist has been fulfilled. VA has fulfilled the duty to notify and assist to the extent possible; the Board finds that it can consider the merits of this appeal without prejudice to the appellant. Adjudication of the claim may proceed, consistent with the VCAA. The record demonstrates that remand for further action in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 541 (1991). Based on the foregoing, VA satisfied its duties to the veteran. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, certain chronic disabilities, including diabetes, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The veteran did not have service in the Republic of Vietnam, so laws governing the presumption of service connection based on exposure to certain herbicide agents do not apply in this case. In written statements and hearing testimony, the veteran contends that she was initially diagnosed with diabetes mellitus during service. As noted above, the veteran's service medical records are incomplete. The available records include vouchers for treatment afforded the veteran by private physicians during her military service. The Board remanded the case in December 2003 and February 2006, in part, to obtain the records from these private physicians. In a March 2006 letter from the RO, the veteran was requested to complete and return authorization and consent release information for the specified private physicians that provided her with treatment during service. In the alternative, the veteran was notified that she could send the information herself. There no indication that the veteran responded to the RO's request. The veteran's lack of compliance with the RO's request was later noted in a December 2006 Supplemental Statement of the Case. Private medical treatment records indicate that the veteran was diagnosed with diabetes mellitus in 1997 and has received ongoing care for the disorder. On VA examination in September 2007, the examiner noted that there was no indication that the veteran was diagnosed with diabetes mellitus during service and that the medical records indicate that the veteran was diagnosed with the disorder in 1997. Based on medical examination and review of the claims folder, the examiner concluded that the veteran's diabetes mellitus did not have its onset during active military service. The veteran's diabetes mellitus was diagnosed many years after her service. There is no evidence that her diabetes became manifest during her service or the year following her service. There is no medical finding or opinion supporting any link between the veteran's diabetes and disease, injury, or other events during the veteran's service. The Board finds that the preponderance of the evidence is against service connection for diabetes mellitus. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs