Citation Nr: 0813006 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 03-17 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for arthritis of the left shoulder. 3. Entitlement to service connection for arthritis of the right shoulder. 4. Entitlement to service connection for arthritis of the finger joints of both hands. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active service from September 1956 to December 1958 and from December 1964 to September 1979. This matter came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal was remanded for additional development of the record in October 2007 and has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The veteran did not have service in Vietnam. 2. Diabetes mellitus is not due to herbicide exposure or any other event during the veteran's period of active service. 3. Arthritis of the left and right shoulders and diabetes mellitus were not manifest in service or within one year of service; current arthritis of the left and right shoulders is unrelated to the veteran's service. 4. Arthritis of the finger joints was not manifest in service or within one year of service; current arthritis of the finger joints is unrelated to the veteran's service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. Arthritis of the left and right shoulders was not incurred in or aggravated during service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Arthritis of the finger joints was not incurred in or aggravated during service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (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). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In the instant case, the veteran's claims were received after the enactment of the VCAA. An April 2002 letter discussed the evidence necessary to support a claim of entitlement to service connection. The development action taken by VA was noted and the veteran was asked to identify additional relevant evidence. A letter dated in August 2003 advised the veteran of the disabilities that could be presumptively service-connected based on exposure to Agent Orange. He was asked to submit evidence indicating that he served in Vietnam between January 1962 and May 1975. The evidence of record was listed and the veteran was told how VA would assist him in obtaining additional evidence. The letter discussed the evidence necessary to support a claim for direct service connection. In March 2006 the veteran was advised of the manner in which VA determines disability ratings and effective dates. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the veteran been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. A VA examination has been conducted with respect to the veteran's claimed hand and shoulder disabilities. VA has made numerous attempts to verify the veteran's claimed service in Vietnam. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. The Board acknowledges that the veteran has not been afforded a VA medical examination of his claimed diabetes mellitus. However, the Board finds that a VA examination is not necessary in order to decide the veteran's claim. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McClendon v. Nicholson, 20 Vet App. 79 (2006). In McClendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) 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, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. In the instant case, there is no competent evidence suggesting that the veteran's diabetes mellitus is associated with his active service. As such, an examination is not warranted. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Initially, the Board notes that the evidence does not support a finding that the veteran engaged in combat. Thus, he is not entitled to application of the provisions of 38 U.S.C.A. § 1154(b) (West 2002). Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for arthritis or diabetes mellitus if manifested to a compensable degree of 10 percent or more within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Direct service connection may not be granted without evidence of a current disability, evidence of in-service incurrence or aggravation of a disease or injury, and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Diabetes Mellitus 38 U.S.C.A. § 1116(a) (West 2002) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. 38 U.S.C.A. § 1116(b)(3). The following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 414421 (1996). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that the term "service in Vietnam" does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace. See VAOPGCPREC 7-93. A showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam. The veteran's service personnel records do not reflect service in Vietnam. Specifically, they show that the veteran was stationed at two air bases in Thailand during the period from July 1968 to July 1969. While the veteran asserts that he was in-country on temporary duty assignments, the evidence does not support such. The veteran also maintains that his receipt of the Bronze Star indicates his presence in Vietnam. However, the citation to accompany the award of the Bronze Star clearly indicates that the medal was awarded for service to the 6004th Support Squadron, Udorn Royal Thai Air Force Base, while engaged in ground operations. Given the evidence of record, the veteran is not presumed to have exposure to herbicides because he did not enter Vietnam during his service in Thailand. Accordingly, to establish exposure to herbicides during service, the veteran must provide evidence of such exposure. The record contains no evidence indicating that the veteran was exposed to Agent Orange or other herbicides during service. Therefore, the veteran is not entitled to the presumption of service connection for diabetes mellitus due to exposure to herbicides during active service in Vietnam. With regard to whether the evidence establishes a direct connection between the veteran's development of diabetes mellitus and his period of active service, the Board notes that there is no competent evidence of a relationship between the veteran's current diagnosis of diabetes mellitus, and his period of active service. There is no evidence of diabetes mellitus in service or for many years after the veteran's retirement. Rather, when examined for retirement purposes, the endocrine system was normal and urinalysis was negative for sugar; findings that are not indicative of diabetes. In fact, according to a March 2002 letter from M.A.C., M.D., the veteran's diabetes mellitus was not diagnosed until June 2001. This establishes a remote, post-service onset of the disease. The Board observes that the veteran has not produced any competent evidence indicating a relationship between any disease or injury in service and his diabetes mellitus. There is a remarkable lack of credible evidence of pathology or treatment in proximity to service or within many years of separation. Absent reliable evidence relating this disability to service, the claim of entitlement to service connection must be denied. Under these circumstances, the Board finds that the claim for service connection for diabetes mellitus must be denied. As the competent evidence does not support the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Arthritis of the Shoulders and Finger Joints Review of the service medical records indicates that, in January 1965, the veteran reported a periodic peculiar "catching" sensation in the left scapula area, unrelated to food or exercise. He indicated that it was relieved with stretching. The impression was no serious disease. In August 1976, the veteran caught his little finger in a door. Objectively, there was a tear and laceration of left little finger, distal phalanx lateral. The assessment was tear-injury of left little finger. In August 1977, the veteran reported an injury to the right 5th finger with a history of dislocation but no treatment. Objectively, there was swelling and tenderness with minimal flexion. In October 1977, the veteran reported old dislocation of right 5th finger PIP (proximal interphalangeal joint). Objectively, there was stiffness and slight swelling, but no tenderness. Panine exercises were planned. An X-ray was negative for fracture/dislocation. On separation examination in November 1978, the veteran reported a history of bilateral shoulder pain and injury to the right 5th digit. The examiner indicated that shoulder pain was not documented by records; history of 5th digit treatment was noted. The history portion of the examination report shows: "Little finger, right hand, slipped out of joint about 1 year ago while moving some boxes." Clinical evaluation revealed normal upper extremities. The summary of defects and diagnoses showed no condition of the shoulders or joints of the hands. Post-service medical records show that, in October 1981, the veteran was seen at the Air Force Base Clinic for pains in left side of neck; his left neck and shoulder were noted to bother him. The assessment was myositis with neuralgia. Private medical records reflect that the veteran was followed for heart disease and that, in December 1994, he reported right shoulder pain in association with shortness of breath. The assessment was that the shoulder pain was most likely not due to coronary disease, but some form of musculoskeletal discomfort. A letter dated November 1997 from a private physician reflects that the veteran had complaints of left shoulder, neck, jaw and teeth pain, which was similar to pain he had prior to angioplasty. Angina and hypertension were assessed. A treatment note dated October 1998 reflects complaints of clogged arteries and history of left shoulder and neck pain. A letter dated January 1999 from a private physician reflects that the veteran presented for an evaluation of subclavian steal syndrome, characterized by episodes of left shoulder pain and pain radiating up the neck and jaw. The examiner determined that the veteran did not have subclavian steal syndrome, and reported that his symptoms seemed cardiac in nature. In March 1999, the veteran complained of left shoulder pain and history of same symptoms at right shoulder. An X-ray of left shoulder revealed soft tissue calcification. A treatment note dated May 1999 reflects that the veteran was referred to physical therapy for left shoulder impingement syndrome. A May 1999 note reflects an assessment for calcific bursitis/tendonitis. Physical therapy notes dated June 1999 and May to July 2000 reflect that the veteran was provided therapy and exercises to improve left shoulder pain. In May 2000 the veteran reported shoulder pain of three years' duration. A VA examination was carried out in June 2007. The examiner reviewed the veteran's service medical records and carefully recited the pertinent entries. The veteran complained of pain in his fingers. He was unable to provide dates of onset or treatment. He stated that since retirement in 1979, his bilateral shoulder and finger joint conditions had progressively worsened. The examiner noted that he could not identify any treatment for the veteran's hands over the many years and indicated that the veteran did not provide any substantive evidence reflecting treatment for his hands. Upon physical and X-ray examination, the diagnoses were osteoarthritis of the bilateral hands and osteoarthritis of the bilateral acromioclavicular joints. The examiner indicated that, after careful review of the veteran's service records and post-service medical documentation, he could find evidence of bilateral shoulder painful conditions that would constitute service nexus or aggravation. However, he concluded that the current bilateral shoulder diagnosis was not at least as likely as not related to service. With respect to the veteran's hands, the examiner indicated that he could not find bilateral hand conditions associated with service treatment, with the exception of the laceration of the left fifth finger and the right fifth finger reported dislocation. He concluded that the veteran's bilateral hand condition was not at least as likely as not related to service. In a November 2007 addendum, the examiner reviewed the record and concluded that the current bilateral shoulder and hand conditions were unlikely due to or related to service. Having carefully reviewed the evidence pertaining to these claims, the Board has concluded that service connection is not warranted. In this regard, the Board notes that the veteran reported shoulder problems on his retirement examination in 1978. However, as noted by the VA examiner, there was no reference to the veteran's shoulders in the service medical records. The Board additionally notes that the veteran's shoulders were clinically normal on discharge physical examination. The first evidence indicating a shoulder disability dates to October 1981, at which time the assessment was myositis with neuralgia. Soft tissue calcification was not assessed until March 1999. The Board also observes that in May 2000 the veteran reported that his shoulder pain had started only three years previously. A confirmed diagnosis of arthritis was not made until the VA examination in June 2007. In a November 2007 addendum, the examiner concluded that the bilateral shoulder condition was not due to or related to service. Regarding the veteran's claimed arthritis of the finger joints, the Board notes that although the veteran claims painful hands and relates the condition to service, there is no evidence of arthritis in the service medical records and no indication of treatment in the post-service records. While there is a current diagnosis of arthritis of the finger joints, none of the medical evidence links the current disability to any disease or injury in service. A confirmed diagnosis of arthritis was not made until the VA examination in June 2007. At that time, the examiner concluded that the bilateral hand condition was not related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the veteran's service. While the record demonstrates current diagnoses relating to the veteran's bilateral shoulders and hands, it does not contain competent evidence which relates these claimed disabilities to any injury or disease in service. The Board has considered the veteran's argument that the claimed disabilities are related to service. However, he is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In summary, the evidence clearly points to a remote, post- service onset of the claimed arthritis of the bilateral shoulders and hands. There is a remarkable lack of credible evidence of pathology or treatment in proximity to service or within many years of separation. The Board finds the negative and silent record to be far more probative than the veteran's remote, unsupported assertions. Rather, the competent evidence clearly establishes that the post-service diagnoses relating to the veteran's bilateral shoulders and hands are not related to service. The Board has considered the record, to include the veteran's assertions. However, the most probative evidence consists of treatment records reflecting no diagnosis referable to the shoulders until May 1999 and no diagnosis of arthritis until the VA examination in 2007. Additionally, there was no diagnosis of arthritis of the finger joints until the VA examination in June 2007. Absent reliable evidence relating these disabilities to service, the claim of entitlement to service connection must be denied. The Board does note that in June 2007 a VA examiner, at one point, reported that he could find evidence regarding the shoulders that would constitute a service nexus or aggravation. However, that comment must be read in conjunction with the complete record, to include the ultimate conclusion and the addendum. Based upon the conclusion in the June report and the addendum, we conclude that there was no nexus to service and that the report of a nexus was in error. Far more persuasive is the conclusion in the addendum that the disabilities were unlikely due to or related to service. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for arthritis of the left shoulder is denied. Entitlement to service connection for arthritis of the right shoulder is denied. Entitlement to service connection for arthritis of the finger joints of both hands is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs