Citation Nr: 0812878 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-14 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes. 2. Whether new and material evidence has been received to reopen a claim for service connection for arthritis. 3. Whether new and material evidence has been received to reopen a claim for service connection for a kidney condition. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. It appears that the RO found that new and material evidence was received sufficient to reopen the previously denied claims, and subsequently denied service connection on the merits. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In August 2005, the veteran was afforded a personal hearing before a hearing officer at the RO and in March 2008, the veteran was afforded a video conference hearing before the undersigned. Transcripts of the hearings are of record. FINDINGS OF FACT 1. In January 2003, the RO denied service connection for diabetes, arthritis, and a kidney condition. The veteran did not appeal. 2. Evidence received since the January 2003 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims; it is not cumulative or redundant of the evidence previously considered and it raises a reasonable possibility of substantiating the claims. 3. Diabetes and arthritis did not have its onset during active service, or within one year after separation from service, or result from disease or injury in service. 4. A kidney condition did not have its onset during active service or result from disease or injury in service. CONCLUSIONS OF LAW 1. The January 2003 RO decision is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. The evidence received since the RO's final decision is new and material; thus, the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The criteria for entitlement to service connection for diabetes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 4. The criteria for entitlement to service connection for arthritis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 5. The criteria for entitlement to service connection for a kidney condition have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2003, the RO denied service connection for diabetes and arthritis as there was no medical evidence of these conditions during service or within one year following separation. This decision also denied service connection for a kidney condition as there was no medical evidence of this condition during service. The veteran did not appeal. Thus, this decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a careful review of the evidence of record, the Board finds that evidence has been submitted following the RO's most recent final decision that is sufficient to reopen the veteran's claims for service connection as it is "new" within the meaning of 38 C.F.R. § 3.156. This evidence includes sworn testimony from Dr. A.O.M., stating that the veteran was diagnosed as having diabetes mellitus and arthritis of the neck, shoulder and back during in the year of 1977-1978, and A.B., stating that he served with the veteran sometime in 1975 to 1977 and on several occasions rushed the veteran to Tripler Army Hospital for emergency care for severe pain from his kidney problem. The Board further finds that this evidence is material as it raises a reasonable possibility of substantiating the claims since it shows the presence of his claimed disabilities during service. As new and material evidence has been presented, the claim is reopened. As the Board has determined that new and material evidence sufficient to reopen the previously denied claims for service connection for diabetes, arthritis and a kidney condition has been received, the Board will address the issue of entitlement to service connection on the merits. Inasmuch as the RO addressed the merits of the claims, the veteran is not prejudiced by the Board's also addressing the merits. Bernard v. Brown, 4 Vet. App. 384 (1993). 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; 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 arthritis and diabetes mellitus, may be established based on a legal "presumption" 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; 38 C.F.R. §§ 3.307, 3.309. As noted, in determining whether evidence is new and material, the credibility of the evidence is presumed; however, when addressing the merits of the claims, 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; every item of evidence does not have the same probative value. Post-service medical treatment records show that the veteran had been diagnosed as having diabetes mellitus; arthritis of the low back, neck, and left knee; and kidney stones. Therefore, the first requirement for service connection for these claims, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for diabetes, arthritis, and a kidney condition. The service medical records are negative for any complaints or findings of diabetes, arthritis or a kidney condition. Separation examination is likewise negative for any such disabilities. During his personal hearings and in correspondence of record, the veteran claimed that he began to have symptoms of diabetes in service, but it was not diagnosed until the late 1980s. In addition, he stated that there would not be any evidence of treatment for his arthritis in service as his former wife, a physician, treated him for that condition. He also stated that he was treated for his kidney condition and arthritis at Tripler Army Hospital during and after service as his wife's dependent. The record also contained sworn statements from friends stating that the veteran was treated at Tripler Army Hospital during service for kidney problems. The Board finds that these contentions are not supported by the evidence of record. The veteran's former wife stated in a sworn affidavit dated January 2004 that she had known the veteran since 1981 and began practicing medicine in 1983. As the veteran's wife did not know him while he was in service and began practicing medicine about 5 years after the veteran's separation from service, she could not have been treating him for any of his conditions during service. In addition, she further stated in another sworn affidavit dated August 2005 that the veteran was diagnosed as having kidney disease, diabetes mellitus and arthritis in early 1980, which was at least two years following service. Furthermore, the National Personnel Records Administration made several attempts to obtain the veteran's claimed treatment records from Tripler Army Hospital, including as a dependent of his former wife. They were unable to find any such records to support his contentions. As shown above, Dr. A.O.M. stated that the veteran was diagnosed as having diabetes mellitus and arthritis of the neck, shoulder, and back in the year of 1977-1978. The Board finds that the evidence of record does not support this statement. Both the veteran and his former wife have stated under oath that he was not diagnosed as having these disabilities until the 1980s. Furthermore, Dr. A.O.M. did not provide a basis or rationale for his statement and there is no evidence that he reviewed the claims file. The medical evidence of record shows that the veteran was diagnosed with his claimed conditions following service. He was diagnosed as having kidney stones in February 1980. The earliest record of diabetes was in September 1994, which stated that the veteran's wife and physician in the Philippines were monitoring him. The veteran also has several diagnoses of arthritis of different parts of the body. Degenerative joint disease of the back was diagnosed in August 1998, osteoarthritis of the left knee was diagnosed in July 1997, and osteoarthritis of the neck was diagnosed in February 2000. As shown, the veteran's disabilities were manifested well after separation. Aside from the veteran's own contentions and statements in support of his claims, there is no competent medical evidence of record showing that any of these disabilities were incurred in service or somehow related to service. Neither the Board nor any lay person is competent to supplement the record with unsubstantiated medical 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, arthritis, or kidney condition to service, and the medical evidence of record does not otherwise demonstrate they are related to service. Finally, the evidence does not show that the veteran was diagnosed with diabetes mellitus or arthritis within one year following his separation from service. As such, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claims, and they must be denied. Notice and Assistance As an initial matter, the Board notes that the duty to notify and assist with regard to the issue of whether new and material evidence has been received has been met to the extent necessary to reopen the claim, such that any deficiency in this regard is harmless error. See Bernard, 4 Vet. App. at 392-94. Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in December 2003 and March 2004. Additional notice was sent in March 2006. The claims were subsequently readjudicated in November 2006 and August 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, and afforded the veteran the opportunity to give testimony before the Board. In this case, VA need not obtain an examination as the evidentiary record does not show that the veteran's current diabetes, arthritis, and kidney condition may be associated with an established event, injury, or disease in service; manifested during an applicable presumptive period; or otherwise associated with military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. ORDER New and material evidence having been received, the claims for service connection for diabetes, arthritis, and a kidney condition is reopened; the appeal is granted to this extent only. Service connection for diabetes, arthritis, and a kidney condition, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs