Citation Nr: 0811990 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-07 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for coronary artery disease (CAD) (claimed as a heart attack). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for diabetic retinopathy (claimed as macular degeneration). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from May 1968 to May 1970 with subsequent service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2008, the veteran appeared and testified before the undersigned Veterans Law Judge at a hearing held at the St. Petersburg RO. The hearing transcript is associated with the claims folder. FINDINGS OF FACT 1. An unappealed May 1995 rating decision denied service connection for diabetes mellitus on the basis that such disease first manifested many years after active service and was not shown to have been incurred in service. 2. The new evidence received since the May 1995 rating decision includes relevant Army Reserve medical records that, by regulation, warrant reconsideration of the prior final denial. 3. The veteran was not exposed to herbicides in service. 4. The veteran's diabetes mellitus, CAD, hypertension and diabetic retinopathy first manifested many years after his period of active duty service from May 1968 to May 1970 and are not shown to be causally related to any event during active or Army Reserve service. CONCLUSIONS OF LAW 1. The May 1995 rating decision that denied service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. Evidence received since the May 1995 rating decision is new and material, and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(c) (2007). 3. Diabetes mellitus was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2007). 4. CAD was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2007). 5. Hypertension was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2007). 6. Diabetic retinopathy (claimed as macular degeneration) was not incurred or aggravated during active service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.102, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks to establish service connection for diabetes mellitus, hypertension and disorders he refers to as heart attack and macular degeneration. He primarily contends that his diabetes mellitus results from exposure to herbicides in service, and that his other conditions are proximately due to his diabetes mellitus. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic disorders, such as arteriosclerosis, cardiovascular renal-disease (including hypertension), diabetes mellitus, endocarditis, myocarditis and organic diseases of the nervous system may be established based on a presumptive basis by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran claims herbicide exposure based upon his periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) within the continental United States. He does not allege service in the Republic of Vietnam during the Vietnam Era, and has not been awarded the Vietnam Service Medal. Thus, the presumptive provisions of 38 C.F.R. § 3.307(a)(6) do not apply. See Pratt v. Nicholson, 20 Vet. App. 252 (2006). There is no authority by statute, regulation or VA M21-1MR provision that allows a presumption of herbicide exposure in this instance. Given the undisputed facts above, the instant case is not affected by the decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), and the stay ordered in Ribaudo v. Nicholson, 21 Vet. App. 137 (2007) (per curiam). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). ACDUTRA is full- time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. 38 U.S.C.A. § 101(24) also includes within the definition of "active duty" any periods of INACDUTRA which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. Presumptive periods do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, 38 C.F.R. §§ 3.307 and 3.309 may only be considered relative to the veteran's period of active duty from May 1968 to May 1970. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record as every item of evidence does not have the same probative value. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The RO has determined that the new and material standard applies to the service connection claim for diabetes mellitus, and has denied the application to reopen. The Board must independently review this jurisdictional determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). An unappealed May 1995 rating decision denied service connection for diabetes mellitus on the basis that such disease first manifested many years after service and was not shown to have been incurred in or aggravated by service. That decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). However, if the claimant can thereafter present new and material evidence, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. In January 1997, the RO received additional Army Reserve medical records, such as periodic examination reports, that were not previously of record. These records were in existence at the time of the previous final denial. Per the provisions of 38 C.F.R. § 3.156(c), the claim is reopened for reconsideration of the claim on the merits. The Board finds no prejudice to the veteran in adjudicating the claim on a de novo basis at this time. The veteran has clearly focused on the issue of service connection, not on the issue of whether new and material evidence has been submitted. The veteran had a period of active duty from May 1968 to May 1970. It is not contended that his diabetes mellitus, heart disease, hypertension or an eye disorder first manifested during this period of service. The service medical records for this period of service are negative for treatment or diagnosis of any of these disorders. His March 1970 separation examination indicated normal clinical evaluations of his heart, vascular system, endocrine system and eyes, providing evidence against these claims. Overall, the veteran's service medical records for his period of active service from May 1968 to May 1970 provide highly probative evidence against the claims. The veteran subsequently served in the Army Reserves from 1970 to 1992. The Army Reserve medical records are also negative for treatment or diagnosis of any the claimed disorders. A July 1985 examination report noted borderline blood pressure readings while a June 1987 examination noted an abnormal fasting blood sugar (FBS). No diagnoses were provided. These records also provide highly probative evidence against the claims. The available post-service medical records first confirm a diagnosis of non-insulin dependent diabetes mellitus in 1994, many years after service. He was diagnosed with background diabetic retinopathy (BDR) in 1998. In July 2004, the veteran underwent coronary artery bypass grafting times three due to CAD. He was also diagnosed with hypertension at that time. This lengthy period without treatment since the veteran's discharge from active service in May 1970 is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. See Maxon v. Gober, 230 F.3d 1330, (Fed. Cir. 2000). In addition, there is no competent evidence or medical opinion contained in the medical records described above showing or indicating that diabetes mellitus, CAD, hypertension and/or diabetic retinopathy is related to active duty or Army Reserve service. Based on the above, the Board must find that both service and post-service treatment records provide evidence against his claims on a direct basis, indicating disorders that began years after service with no connection to service. As none of the disorders manifested within one year from the veteran's discharge from service in May 1970, the presumptive provisions regarding chronic diseases under 38 C.F.R. §§ 3.307 and 3.309 do not apply. As noted above, the veteran primarily contends that his diabetes mellitus was caused by his exposure to herbicides while performing ACDUTRA and INACDUTRA. In this respect, he believes that herbicides were present and used at the Avon Park Air Force Base where many of his ACDUTRA duties were performed. He also believes that herbicides were present at other military facilities where he performed Reserve duties. To corroborate his allegations, he has provided a statement from a fellow service mate who recalls that a military plane had been spraying herbicides during their training exercises in December 1982. Incidentally, this individual also recalled that the veteran was taking medications for diabetes mellitus. There are serious problems with this statement. First, the undersigned is unaware of any evidence that the military was using herbicides in 1982 in the United States. In any event, second, and most importantly, this person indicates that he "was aware at this time (1982)" that the veteran was using medication in 1982 to treat diabetes. However, the post- service medical record clearly reveals that the veteran did not use medication to treat his diabetes until many years after 1982. This glaring misstatement of fact undermines not only the statement of this service member, but undermines the veteran's own creditability, as the veteran submitted a noncredible statement to support his claim. Information provided by Department of Defense (DoD) confirms that tests with butyl 2, 4D, butyl 2, 4, 5-T, and Isopropyl 2,4-D were conducted at Avon Park in 1951 and 1954, which predates the veteran's possible Reserve duties by more than 25 years. In fact, all the information obtained from DoD show that land-based herbicide use, storage and testing ceased prior to the veteran's entrance into the Reserves. This information correlates with the DoD information submitted directly by the veteran, providing evidence against this claim. In light of the information provided by DoD, the unsupported lay recollections of the veteran and his fellow service mate offers no proof of his actual herbicide exposure, as this is a matter outside the observations of a lay individual. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. § 3.159(a). As indicated above, the presumption of service connection for diabetes mellitus is only available for veterans who served in Vietnam, which is not the case here. Therefore, service connection for diabetes mellitus as secondary to herbicide exposure is not warranted. The veteran's assertions that he was taking medications due to diabetes mellitus in December 1982 contradicts his report to military examiners during examinations in April 1983 and June 1987 wherein he specifically denied taking any medications and did not report a history of diabetes mellitus. Nonetheless, his report of the onset of diabetes mellitus during his Reserve Service, if presumed true, does not provide a basis for a grant of service connection in this case. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Furthermore, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 do not apply to his period of Army Reserve service. Biggins, 1 Vet. App. at 477-78. Finally, it is noted that neither the Board nor the veteran (or his representative) is competent to supplement the record with unsubstantiated medical and scientific conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The record does not contain a competent opinion linking the veteran's current diabetes mellitus, CAD, hypertension and diabetic retinopathy to service and the medical evidence of record does not otherwise demonstrate they are related to service. In fact, it provides evidence against such a finding. In conclusion, the Board finds that the preponderance of the evidence is against the veteran's service connection claims on both direct and presumptive bases. The benefit of the doubt rule does not apply. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). To the extent the veteran seeks service connection for his CAD, hypertension and diabetic retinopathy as secondary to diabetes mellitus, these claims have no legal merit as the underlying disorder is not subject to service connection. Accordingly, the Board must deny these appeals. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 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); 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 (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). 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). With respect to the claims for CAD and hypertension, the RO's pre-adjudicatory notice in December 2004 did not advise the veteran of the applicable service connection criteria. With respect to the claims for diabetes mellitus and macular degeneration of the eyes, a pre-adjudicatory RO letter in June 2005 did substantially satisfy the VCAA notice requirements. This letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. He was advised of multiple forms of evidence that he should submit to the AOJ to substantiate his claims, and to submit any evidence in his possession that pertained to his claims. He was also advised of the evidentiary requirements for reopening his diabetes mellitus claim which, per this Board decision, has been substantiated. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Of particular importance, the veteran was provided a VCAA notice in January 2006 on his CAD and hypertension claims which informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was further advised to submit any evidence in his possession that pertained to his claims. With respect to his diabetes and macular degeneration claims, the veteran was provided notice regarding establishing service connection based upon exposure to herbicides. With respect to all the claims, an April 2007 RO letter advised the veteran of the criteria for establishing a disability rating and effective date of award, should service connection be established. All the notice defects were cured with readjudication of the claims in a Statement of the Case (SOC) (diabetes and macular degeneration) and Supplemental SOC (heart disorder and hypertension) furnished in April 2007. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. To the extent that any notice errors exists, the Board finds that such errors could not be deemed prejudicial to the veteran. As the diabetes mellitus claim is reopened, any failure to provide him notice complying with the Kent requirements is found harmless error. Furthermore, the veteran has demonstrated actual knowledge of the evidentiary requirements as he has submitted documents attempting to show his exposure to herbicides which is essentially the only viable service connection theory underlying all of his claims. As the claims remain denied, any timing deficiency related to providing him notice of the criteria for establishing a disability rating and effective date of award is moot. See Dingess/Hartman, supra. VA has a duty to assist the veteran in the development of the claims. 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 veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records for his active duty as well as his period of service in the Army Reserves. The RO has also obtained his personnel file, and obtained information regarding herbicide usage and storage. The RO has also obtained all available private and VA treatment records. The Newington, Connecticut, VA Medical Center informed the RO that records of the veteran's treatment were unavailable. The record discloses that the veteran submitted an application for disability benefits with the Social Security Administration (SSA) in 1998 which was apparently denied. Given the veteran's denial of the onset of his diseases during active service or any allegation that his diseases are associated with service on any basis other than herbicide exposure, the Board finds that any records from SSA would not provide any relevant information pertaining to the claims. Thus, VA has no duty to obtain such records. As held above, the Board finds that the preponderance of the evidence establishes neither persistent nor recurrent symptoms of disability since service nor any competent evidence that his current disorders are associated with an event during service. As such, there is no duty to obtain medical opinion on the claims. Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). The Board finds no indication of a disorder related to service and service and post-service medical records provide evidence against such a findings, clearly indicating that a VA examination should not be provided. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claims. 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). ORDER The appeal to reopen a claim of service connection for diabetes mellitus is granted. Service connection for diabetes mellitus is denied. Service connection for CAD (claimed as heart attack) is denied. Service connection for hypertension is denied. Service connection for diabetic retinopathy (claimed as macular degeneration) is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs