Citation Nr: 0812253 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-14 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an effective date prior to June 6, 2003, for service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1968, including service in the Republic of Vietnam. This matter is on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Although the RO initially granted service connection for diabetes mellitus effective June 14, 2003, in a May 2007 rating decision, the RO granted entitlement to an earlier effective date of service connection for diabetes mellitus, June 6, 2003. In light of this action, the Board has identified his earlier effective date claim as set forth on the title page. FINDINGS OF FACT 1. The veteran was originally diagnosed with diabetes on June 6, 2003. He submitted his initial claim for service connection for diabetes on June 14, 2003. 2. The veteran was granted service connection for diabetes mellitus in a December 2003 rating decision. 3. The veteran's service medical records show no indications of treatment or complaints regarding either hypertension or headaches. 4. The veteran has been diagnosed with both hypertension and chronic headaches. 5. Neither diagnosis regarding hypertension or headaches has been related either to service or to the veteran's service- connected diabetes. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to June 3, 2003, for a grant of service connection for diabetes have not been met. 38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.114, 3.151, 3.155, 3.400 (2007). 2. The criteria for service connection for hypertension as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 3. The criteria for service connection for headaches as secondary to service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS EARLIER EFFECTIVE DATE FOR DIABETES The veteran claims entitlement to an effective date earlier than June 6, 2003 for a grant of service connection for diabetes. The Board notes here that effective date rules for awards related to claims based on Agent Orange exposure as per under Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I) have been promulgated at 38 C.F.R. § 3.816. In certain cases, these provisions allow for an earlier effective date than would otherwise be granted. Specifically, if the veteran is a qualifying Nehmer class member (a Vietnam veteran who has a covered herbicide disease, including diabetes Type 2), an earlier effective date may be granted if: (1) if VA denied compensation for the same disease in a decision issued between September 25, 1985 and May 3, 1989, (2) if the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, (3) if the class member's claim was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. However, in this case, the veteran's claim was initially received in June 2003 and not before. As the veteran was not denied compensation for diabetes mellitus between September 25, 1985, and May 3, 1989; the veteran's claim of service connection was not pending before VA on May 3, 1989, nor was it received by VA between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for diabetes mellitus (May 8, 2001); and the veteran's claim was not received within one year from the date of his separation from service, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). In general, the relevant law and regulations provide that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002). This statutory provision is implemented by a regulation which provides that, generally, the effective date for disability compensation will be the date of receipt of the claim or the date the entitlement arose, whichever is later, for claims not made within a year of separation. 38 C.F.R. § 3.400. The date of entitlement to an award of service connection will be the day following separation from active duty or the date entitlement arose where the claim is received within a year of separation from service. Id. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is 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). Moreover, the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. Application is not defined in the statute; however, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992) (citing 38 C.F.R. § 3.1(p)). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2007). In this case, the date of receipt of the claim seeking service connection was dated June 14, 2003, more than one year after his separation from service. Accordingly, the applicable law establishes that the effective date, generally, shall be no earlier than the date of the claim. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q), (r) (2007). After a review of the file, the Board finds no indication of an intent to file a claim for service connection prior to that date. Accordingly, the veteran has been awarded the earliest effective date provided by law. As the applicable law and regulatory provisions are clear on the issue at hand, the Board concludes that the claim for an effective date prior to June 6, 2003, for a grant of service connection for diabetes must be denied. 38 C.F.R. § 3.114, which applies to original and reopened claims, provides: (1) If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. Here, as the RO has pointed out, because the earliest diagnosis of diabetes mellitus was on June 6, 2003, an earlier effective date is not permissible. In this regard, the Board emphasizes that if 38 C.F.R. § 3.114 were not applicable, the earliest effective date would be the date his claim was received, i.e., June 14, 2003. In light of 38 C.F.R. § 3.114, if there was evidence that the veteran had diabetes mellitus prior to filing his claim of service connection on June 14, 2003, an effective date as early as June 14, 2002, would be available, i.e., one year prior to the date of the liberalizing law or VA issue. In light of the foregoing, the veteran has already been given the earliest possible effective date for the grant of service connection for prostate cancer. As such, this claim must be denied. CLAIMS FOR SERVICE CONNECTION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, 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). In addition, the regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Although there was an amendment to § 3.310, the veteran filed his claim prior to October 10, 2006, the effective date of the change. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The older, more liberal, version is applicable to the appeal as the new version would have impermissible retroactive effect. See VAOPGCPREC 7-2003. Overall, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records indicate no complaints or treatment regarding either headaches or hypertension. In fact, the veteran's blood pressure measurements, taken in March 1966 at entrance examination (136/88) and in June 1968 at separation examination (136/76), actually show a decrease in blood pressure while on active duty. Since separation, the veteran has been diagnosed with both hypertension and headaches and has received treatment for each for approximately twenty years. Initial diagnoses were not made for many years after separation and nothing in the medical records suggest a link between the veteran's active duty and his current diagnoses. As seen above, the veteran is service connected for diabetes mellitus rated as 10 percent disabling from June 3, 2003, the date of original diagnosis of diabetes. However, nothing in the medical evidence of record suggests a link between either his diagnosis of hypertension or headaches and his service- connected diabetes mellitus. The August 2003 VA examiner indicated that hypertension was diagnosed well before diabetes and that the veteran's mild headaches were most likely tension related (additionally noted as far back as January 1987 to be tension related). Also significant in the listed diagnoses, the veteran's diagnosed diabetes was noted to have no complications. Additionally, the veteran's hypertension has continued to be noted as well-controlled and blood pressure measurements taken in June and November 2005 reflect that interpretation. The veteran's hypertension has thereby not been shown to be aggravated by his diabetes mellitus. Additionally, at the August 2003 VA examination, the veteran indicated that his headaches had actually decreased in the years prior to 2003 and indeed the VA treatment records show fewer treatments for headaches in the years since his diagnosis with diabetes. As a result, it is determined that the headaches have not been aggravated by his diabetes either. The Board has also considered the veteran's statements that his hypertension and headaches are related to his diabetes and/or his active duty service. In this vein, lay evidence, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's claim for earlier effective date of a grant for service connection for diabetes arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's VA treatment records and private medical records, and he was afforded formal VA examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). As for his claims for service connection, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in July 2003 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in December 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him 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. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 VA treatment records, private treatment records, Social Security Administration records, and service medical records. In addition, he was afforded a VA medical examination. 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 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 An effective date prior to June 6, 2003 for initial service connection for diabetes mellitus, rated as 10 percent disabling from that date forward, is denied. Service connection for hypertension, to include as secondary to diabetes mellitus, is denied. Service connection for headaches, to include as secondary to diabetes mellitus, is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs