Citation Nr: 0812332 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 00-00 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a disability manifested by glucosuria. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from January 1990 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in an April 2004 remand and a February 2007 decision and remand. The issue was last remanded for additional development to include a VA examination. FINDING OF FACT The veteran's elevated glucosuria readings do not result in a disability. CONCLUSION OF LAW The criteria for the establishment of service connection for a disability manifested by glucosuria have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in October 2002 and February 2007 and by the February 2007 Board decision and remand that notified the veteran of how to establish a service connection claim based on aggravation. These letters and the February 2007 Board decision and remand effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claim. Although notice of how to substantiate a claim based on aggravation of a preexisting disability under 38 C.F.R. § 3.306 was not timely received, the Board finds that the timing error is non-prejudicial since the veteran received the notice before the September 2007 Supplemental Statement of the Case and was afforded an opportunity to respond in light of the notice. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Additionally, the February 2007 letter provided notice of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the February 2007 letter was not timely received, the denial of the claim in the instant decision makes the timing error non-prejudicial. Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records are associated with the claims file. Additionally, the veteran was afforded a VA examination in connection with his claim. The veteran and his representative have not made the RO or the Board aware of any outstanding evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Analysis The veteran seeks service connection for glucosuria. After carefully considering the record, the Board finds that the preponderance of the evidence is against the claim, and it will be denied. The veteran does not have a disability within the meaning of the law that is characterized by glucosuria, and the appeal is denied on this basis. Service connection may be established for disability resulting from an injury suffered or disease contracted in the line of duty, or from 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. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection requires findings as to the existence of a current disability and of a connection between the veteran's service and the disability. Watson v. Brown, 4 Vet. App. 309 (1993). However, it is well-settled that the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability - the first prong of a successful claim of service connection. In the absence of proof of a present disability, there is no valid claim presented. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). By "disability" is meant "an impairment in earnings capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) [Citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1 and "increase in disability" in 38 C.F.R. § 3.306(b)]; see also Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A "disability" is a disease, injury, or other physical or mental defect."). Pre-service private medical records from January and February 1987 reflect that the veteran had a history of glucosuria. At his August 1989 entrance examination, the veteran was noted to have renal glucosuria. Then throughout active service, elevated glucose readings repeatedly appeared. The veteran underwent an October 2004 VA examination where he was diagnosed with glucosuria and encouraged to undergo a renal evaluation. However, no disabilities were noted as a result of his glucosuria. Most recently, the veteran underwent a June 2007 VA examination. The examiner noted that the veteran had a history of glucosuria, but that there was no serious condition related to it either before active service or that worsened during active service. There is no evidence that the elevated glucose readings in question manifested as a disability within the meaning of the law. Without evidence of a current disability, the veteran's claim for service connection for glucosuria is denied. See also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) ("Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); and 61 Fed. Reg. 20440, 20445 (May 7, 1996) (An elevated cholesterol level represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable). ORDER Service connection for glucosuria is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs