Citation Nr: 0812935 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-37 765 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for residuals of right leg injury. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESSES AT HEARING ON APPEAL The appellant and R. B., translator ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from April 1945 to February 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied service connection for diabetes mellitus, hypertension, and residuals of right leg injury. FINDINGS OF FACT 1. Diabetes mellitus was not diagnosed during service or the year following service; but was diagnosed many years after service. 2. Hypertension was not diagnosed during service or the year following service; but was diagnosed many years after service. 3. No residual of right leg injury was noted at separation from active service; and right knee arthritis was not diagnosed during the year following service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred or aggravated in service; nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1101, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Hypertension was not incurred or aggravated in service; nor may it be presumed to have been incurred in service. Id. 3. No residual of right leg injury was incurred or aggravated in service; nor may right knee arthritis be presumed to have been incurred in service. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for diabetes mellitus, hypertension, and residuals of a right leg wound. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a 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). Certain chronic disabilities, including diabetes mellitus, hypertension, and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The veteran has reported that he was a prisoner of war (POW) after being captured by Japanese forces in 1943. Certain diseases are presumed to be service connected if manifest in a former POW to a compensable degree at any time after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(c). In a January 2006 administrative decision, the RO found that the veteran may not be recognized as a former POW. The veteran has not appealed that decision. In addressing the veteran's service connection claims, the Board will not consider the veteran as a former POW. A form from the Department of the Army of the Republic of the Philippines indicates that the veteran had recognized guerilla service from April 1945 to August 1945, and regular Philippine Army service from August 1945 to February 1946. The veteran had a physical examination in August 1945 for Philippine Army service. At that time, his blood pressure was 98/76, and no musculoskeletal defects were noted. In a January 1946 service discharge examination, urinalysis was negative for sugar. The veteran's blood pressure was 100/60. No musculoskeletal defects were noted. The claims file contains records of treatment of the veteran at Philippine service military facilities in 1947. He received treatment for malaria and for a gastrointestinal disorder. Those treatment records do not contain notations of diabetes, hypertension, or any right leg disorder. The claims file does not contain other records of medical treatment of the veteran during the years immediately following his active service. In January 2004, private physician M. A. B., M.D., wrote that the veteran was under her care. Dr. B. noted that the veteran sustained a wound on the right knee while a prisoner of war during World War II, when a Japanese soldier hit him on that knee with a shovel. Dr. B. reported that the veteran had a residual scar on his right knee. The veteran submitted a January 2005 affidavit from Mr. R. T. G., who reported that his father found the veteran near there home in August 1943. Mr. G. indicated that at the time the veteran had a wound on his right leg, and reported having been taking prisoner while serving as a guerilla, and having escaped from his Japanese captors. In May 2005, VA physician C. N., M.D., wrote that the veteran had current diagnoses of diabetes, hypertension, hyperlipidemia, reactive airways disease, and osteoarthritis of both knees. In August 2005, the veteran's private physician Dr. B. indicated that she had begun treating him for diabetes mellitus in October 1988. The veteran submitted an account, dated in May 2005, of his experiences during World War II. He recounted that he joined a guerilla unit in 1943, that he was captured by Japanese soldiers, and that while he was a prisoner a Japanese soldier hit him a right leg with a shovel, and wounded that leg. He indicated that he escaped from captivity, and went on to perform additional guerilla service until early 1946. In March 2008, the veteran had a videoconference hearing at the RO before the undersigned Veterans Law Judge. He reported that his diabetes had begun in approximately 2002. He stated that his hypertension was diagnosed in about 2001. He indicated that he did not know whether he had experienced any manifestations of diabetes or hypertension during his service in the 1940s. He related that there were not any additional medical records from the 1940s. There is no medical evidence that the veteran had diabetes during service, at separation from service in 1946, or during the year following separation from service. There is medical evidence of diagnosis and treatment of diabetes, but not until many years after service. There is no medical finding or opinion relating the current diabetes to any disease or other event during service. The preponderance of the evidence is against service connection for diabetes, and the Board denies that appeal. The few available medical records from during and soon after the veteran's service do not show any high blood pressure readings. The veteran indicated that his hypertension was diagnosed many years after service. As there is no medical evidence linking current hypertension to service, the Board denies service connection for hypertension. The veteran has reported sustaining a right knee injury in 1943, as a POW, before the 1945 and 1946 service that is considered active service for purposes of U. S. veteran's benefits. No right leg disorder was found on the 1946 service separation examination, and there is no record of right knee or leg problems during the year following service. Thus, the evidence does not indicate that at the conclusion of the veteran's active service he had any disorder residual to right leg injury. The preponderance of the evidence is against service connection for residuals of a right leg injury. Notice and Assistance 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 November 2004 and August and October 2005. The notification substantially complied with the requirements of 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. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has obtained service medical records, post-service medical records and afforded the veteran the opportunity to give testimony before the Board. VA need not conduct an examination with respect to the claims decided herein because the information and evidence of record contains sufficient competent medical evidence to decide the claims. 38 C.F.R. § 3.159(c)(4). There is no evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies. Thus, the duty to assist does not include obtaining a medical opinion in this case. 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 Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of right leg injury is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs