Citation Nr: 0813307	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO. 06-06 503	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, 
to include as due to exposure to herbicides.

2. Entitlement to service connection for hypertension.

3. Entitlement to service connection for heart disease.

4. Entitlement to service connection for a cervical spine 
disability.

5. Entitlement to a compensable disability rating for ingrown 
toenails, both great toes, postoperative.

6. Entitlement to a disability rating in excess of 10 percent 
for headaches.


ATTORNEY FOR THE BOARD

M. N. Hyland, Counsel

INTRODUCTION

The veteran had active duty from August 1970 to October 1971 
and from October 1971 to May 1975.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2005 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA). 

The issues of entitlement to a compensable disability rating 
for ingrown toenails, both great toes, postoperative, and 
entitlement to a disability rating in excess of 10 percent 
for headaches are addressed in the REMAND portion of the 
decision below and are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The record does not show that the veteran had service in 
Vietnam.

2. Diabetes mellitus was not present during the veteran's 
active duty service or for many years after the veteran's 
discharge from service, nor is diabetes mellitus otherwise 
related to the veteran's active duty service, nor may it be 
presumed to be related to the veteran's active duty service.

3. Hypertension was not manifested during the veteran's 
active duty service or for many years thereafter, nor is 
hypertension otherwise related to the veteran's active duty 
service, nor may it be presumed to be related to the 
veteran's active duty service.

4. Heart disease was not manifested during the veteran's 
active duty service or for many years thereafter, nor is 
heart disease otherwise related to the veteran's active duty 
service, nor may it be presumed to be related to the 
veteran's active duty service.

5. A cervical spine disability was not manifested during the 
veteran's active duty service or for many years thereafter, 
nor is a cervical spine disability otherwise related to the 
veteran's active duty service.


CONCLUSIONS OF LAW

1. Diabetes mellitus was not incurred in or aggravated by 
active service, nor may it be presumed to be incurred in or 
aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 5107 
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).

2. Hypertension was not incurred or aggravated during the 
veteran's active duty service, nor may it be presumed to have 
been incurred or aggravated during active duty service. 
38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2007).

3. Heart disease was not incurred or aggravated during the 
veteran's active duty service, nor may it be presumed to have 
been incurred or aggravated during active duty service. 
38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (2007).

4. A cervical spine disability was not incurred or aggravated 
during the veteran's active duty service. 38 U.S.C.A. 
§§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to advise a claimant 
of the information and evidence not of record that is 
necessary to substantiate the claim. See 38 U.S.C.A. § 5103 
(West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that 
notice, VA must inform the claimant of the information and 
evidence he is expected to provide, as well as the 
information and evidence VA will seek to obtain on his 
behalf. In addition, VA must advise a claimant to provide any 
additional evidence in his possession that pertains to the 
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 
3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 
(2002). 

The requirements apply to all five elements of a service 
connection claim: veteran status, existence of a disability, 
a connection between the veteran's service and the 
disability, degree of disability, and 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 decision on a claim for VA benefits by the agency 
of original jurisdiction (in this case, the RO). Id; see also 
Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA 
may proceed with adjudication of a claim if errors in the 
timing or content of the VCAA notice are not prejudicial to 
the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); 
Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 
2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. 
Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).

In July and September 2004 letters, the RO provided notice to 
the veteran regarding what information and evidence is needed 
to substantiate service connection claims, as well as 
specifying what information and evidence must be submitted by 
him, what information and evidence will be obtained by VA, 
and the need for him to advise VA of or submit any further 
evidence that pertains to his claims. 

The veteran did not receive notice as to the information and 
evidence necessary to establish increased ratings or 
effective dates in the event service connection was granted; 
however, the veteran was not prejudiced by this lack of 
notice because the denial of the claims in this appeal 
renders moot the question as to any disability rating or 
effective date to be assigned. 

The RO has taken appropriate action to comply with the duty 
to assist the veteran with the development of his claims. The 
record includes service records, private medical records and 
VA treatment records. No VA examination was provided; 
however, the Board finds that a VA examination is not 
necessary as there is no evidence of any hypertension, heart 
disease, neck disability, or diabetes mellitus in service or 
for many years after service. Also, there is no competent 
medical evidence of record suggesting a relationship between 
the veteran's current disabilities and his active duty 
service. As such, the Board finds that the record as it 
stands includes sufficient competent evidence to decide these 
claims. See 38 C.F.R. § 3.159(c)(4). Under these 
circumstances, the Board finds no further action is necessary 
to assist the veteran with the claims.

In sum, the record reflects that the facts pertinent to the 
claims have been properly developed and that no further 
development is required to comply with the provisions of the 
VCAA or the implementing regulations. That is to say, 
"the record has been fully developed," and it is "difficult 
to discern what additional guidance VA could [provide] to the 
veteran regarding what further evidence he should submit to 
substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 
(Fed. Cir. 2004). Accordingly, the Board will adjudicate the 
claims.

Analysis

Applicable law provides that service connection will be 
granted if it is shown that the veteran suffers from 
disability resulting from an injury suffered or disease 
contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service. 
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury 
or disease occurred in service alone is not enough; there 
must be chronic disability resulting from that injury. If 
there is no showing of a resulting chronic condition during 
service, then a showing of continuity of symptomatology after 
service is required to support a finding of chronicity. 
38 C.F.R. § 3.303(b). Service connection may also be granted 
for any injury or disease diagnosed after discharge, when all 
the evidence, including that pertinent to service, 
establishes that the disease or injury was incurred in 
service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, 
such as hypertension and diabetes mellitus, 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.

Diabetes Mellitus

The record appears to show that the veteran claims that his 
current diabetes mellitus is a result of exposure to Agent 
Orange during his Vietnam era service. Under 38 U.S.C.A. § 
1116(a)(2) and 38 C.F.R. § 3.309(e), as to veteran's who 
served in Vietnam during a certain time period, certain 
diseases may be presumed to have resulted from exposure to 
certain herbicide agents such as Agent Orange. Diabetes 
Mellitus II is included in the list of diseases associated 
with exposure to certain herbicide agents. See 38 C.F.R. 
§ 3.309(e). The record shows, however, that the veteran did 
not have service in Vietnam as a June 2004 document from the 
National Personnel Records Center (NPRC) states that there is 
no evidence in the veteran's file to substantiate any service 
in the Republic of Vietnam. Because the veteran did not have 
service in the Republic of Vietnam, his service connection 
claim must fail on the basis of the presumptive regulations.

In Combee v. Brown, the United States Court of Appeals for 
the Federal Circuit held that when a veteran is found not to 
be entitled to a regulatory presumption of service connection 
for a given disability, the claim must nevertheless be 
reviewed to determine whether service connection can be 
established on a direct basis. See Combee v. Brown, 34 F.3d 
1039, 1043-1044 (Fed. Cir. 1994), reversing in part Combee v. 
Principi, 4 Vet. App. 78 (1993).  

As for establishing service connection on a direct basis, the 
Board notes that there is no medical evidence suggesting that 
the veteran's diabetes mellitus was manifested during his 
period of active duty service or for many years thereafter. 
Service medical records are negative for any findings related 
to diabetes mellitus. The veteran's March 1975 separation 
examination report shows that his sugars were negative and 
his endocrine system was clinically evaluated and found to be 
normal. An April 1979 private medical report shows the 
veteran denied any history of diabetes mellitus. There is no 
post-service medical evidence of diabetes mellitus until 
1991, more than 15 years after the veteran's discharge from 
active service in 1975. There is, therefore, no basis for 
granting service connection for diabetes mellitus based on 
the one-year presumption law and regulations. 38 C.F.R. 
§§ 3.307, 3.309. There is also no medical evidence suggesting 
a nexus between diabetes mellitus and any remote incident of 
service. 38 C.F.R. § 3.303(d).  

In summary, there are no service records or other 
corroborative evidence to confirm that the veteran had actual 
duty or visitation in Vietnam. Additionally, there is no 
competent medical evidence showing that diabetes mellitus was 
manifested during service or for many years thereafter, nor 
is there competent medical evidence that links the veteran's 
diabetes mellitus to any incident of service. In view of the 
foregoing, the Board finds that the preponderance of the 
evidence is against the claim for service connection for 
diabetes mellitus.  
 
Hypertension and Heart Disease

The veteran's service medical records show no evidence of 
hypertension or heart disease, nor is there any evidence of 
hypertension or heart disease within a year of the veteran's 
discharge from active duty service in 1975. The veteran's 
March 1975 discharge examination report shows a blood 
pressure reading within normal limits at 130/82 and a normal 
cardiovascular system on examination. Post-service medical 
records show that the veteran denied hypertension or heart 
problems at an April 1979 private medical examination. In 
fact, the first post-service competent medical evidence of 
hypertension is not until a VA treatment record from December 
1987 and the first evidence of heart disease, in the form of 
coronary artery disease (CAD), is not until a March 2004 VA 
treatment note which shows a history of CAD starting in 2001. 
Finally, there is no competent medical evidence relating any 
current hypertension or heart disease to the veteran's active 
duty service period. As such, service connection for 
hypertension and heart disease is not warranted on a direct 
service connection basis or under the presumptive provisions 
of 38 C.F.R. §§ 3.307, 3.309.

Cervical Spine Disability

The veteran's service medical records are negative for any 
complaints or diagnoses related to the cervical spine. The 
veteran's March 1975 discharge examination report shows that 
the veteran's neck was found to be within normal limits on 
clinical examination. The first post-service medical evidence 
of a cervical disability is an April 2004 VA treatment note 
which shows that the veteran reported neck pain which started 
after a January 2004 motor vehicle accident. Lastly, there is 
no competent medical evidence relating any current cervical 
spine disability to the veteran's active duty service period. 
As such, service connection for a cervical spine disability 
is not warranted.

Conclusion

In making these determinations, the Board has considered the 
provisions of 38 U.S.C.A. § 5107(b), but there is not such a 
state of approximate balance of the positive evidence with 
the negative evidence to otherwise warrant a favorable 
decision.

ORDER

Service connection for diabetes mellitus, to include as due 
to exposure to herbicides is denied.

Service connection for hypertension is denied.

Service connection for heart disease is denied.

Service connection for a cervical spine disability is denied.


REMAND

As noted above, 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 
3.159 impose upon VA a duty to notify and assist a veteran 
with the development of his or her claim. 

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the veteran 
that, to substantiate a claim, the veteran must provide, or 
ask the Secretary to obtain, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on the veteran's 
employment and daily life. Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008). Further, if the Diagnostic Code under which 
the veteran is rated contains criteria necessary for 
entitlement to a higher disability rating that would not be 
satisfied by the veteran demonstrating a noticeable worsening 
or increase in severity of the disability and the effect that 
worsening has on the veteran's employment and daily life 
(such as a specific measurement or test result), the 
Secretary must provide at least general notice of that 
requirement to the veteran. Additionally, the veteran must be 
notified that, should an increase in disability be found, a 
disability rating will be determined by applying relevant 
Diagnostic Codes, which typically provide for a range in 
severity of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability involved), 
based on the nature of the symptoms of the condition for 
which disability compensation is being sought, their severity 
and duration, and their impact upon employment and daily 
life. As with proper notice for an initial disability rating 
and consistent with the statutory and regulatory history, the 
notice must also provide examples of the types of medical and 
lay evidence that the veteran may submit (or ask the 
Secretary to obtain) that are relevant to establishing 
entitlement to increased compensation-e.g., competent lay 
statements describing symptoms, medical and hospitalization 
records, medical statements, employer statements, job 
application rejections, and any other evidence showing an 
increase in the disability or exceptional circumstances 
relating to the disability. 

With respect the veteran's increased ratings claims for his 
service-connected headache and feet disabilities, the record 
does not reflect that VA has complied with the notification 
requirements of Vazquez. A remand is therefore required in 
this case to allow VA to provide appropriate notice. 

Accordingly, the case is REMANDED for the following action:

1. The AMC/RO should provide proper VCAA 
notice pursuant to 38 U.S.C.A. §§ 5103, 
5103(A), 38 C.F.R. 
§ 3.159 and Vazquez-Flores v. Peake, 22 
Vet. App. 37 (2008). Specifically, the 
AMC/RO should send the veteran a VCAA 
notice letter which notifies the veteran 
1) that he must provide, or ask the 
Secretary to obtain, medical or lay 
evidence demonstrating a worsening or 
increase in severity of the disability and 
the effect that worsening has on the 
veteran's employment and daily life, 2) 
the rating criteria under the appropriate 
Diagnostic Codes for rating the veteran's 
service-connected disabilities, 3) should 
an increase in disability be found, a 
disability rating will be determined by 
applying relevant Diagnostic Codes, which 
typically provide for a range in severity 
of a particular disability from 
noncompensable to as much as 100 percent 
(depending on the disability involved), 
based on the nature of the symptoms of the 
condition for which disability 
compensation is being sought, their 
severity and duration, and their impact 
upon employment and daily life and, 4) the 
types of medical and lay evidence that the 
veteran may submit (or ask the Secretary 
to obtain) that are relevant to 
establishing entitlement to increased 
compensation-e.g., competent lay 
statements describing symptoms, medical 
and hospitalization records, medical 
statements, employer statements, job 
application rejections, and any other 
evidence showing an increase in the 
disability or exceptional circumstances 
relating to the disability. 

2. After allowing sufficient 
time for the veteran to 
respond to the VCAA letter, 
and after any additional 
development of the evidence 
that the agency of original 
jurisdiction may deem 
necessary, the AMC/RO should 
review the record, and 
readjudicate the increased 
ratings claims. If any benefit 
sought remains denied, the 
veteran and his should be 
issued an appropriate 
supplemental statement of the 
case, and afforded the 
opportunity to respond. The 
case should then be returned 
to the Board for further 
appellate review, if otherwise 
in order. 

The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded. 
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner. 
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs