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