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