Citation Nr: 0832629 Decision Date: 09/23/08 Archive Date: 09/30/08 DOCKET NO. 07-19 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The veteran had active service from August 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An unappealed November 2004 rating decision denied service connection for diabetes mellitus and hypertension. 2. The evidence associated with the claims file subsequent to the November 2004 decision-namely, the veteran's service personnel records-was not previously submitted for consideration, relates to an unestablished fact necessary to establish the claims, and raises a reasonable possibility of substantiating the claims. 3. The competent and probative medical evidence preponderates against a finding that the veteran's diabetes mellitus is due to any incident or event in military service or is a result of exposure to asbestos or other hazardous chemicals in service. 4. The competent and probative medical evidence preponderates against a finding that the veteran's hypertension is due to any incident or event in military service or is a result of exposure to asbestos or other hazardous chemicals in service. CONCLUSIONS OF LAW 1. The November 2004 rating decision, which denied service connection for diabetes mellitus and hypertension, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. § 20.302 (2007). 2. The evidence received subsequent to the November 2004 rating decision is new and material, and the claims for service connection for diabetes mellitus and hypertension are reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 (2007). 3. Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1154, 5103(a), 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 4. Hypertension was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1154, 5103(a), 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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, in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In May 2006, VA sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). The letter included a description of what evidence was lacking in the previously denied claim and what facts needed to be shown by the new and material evidence. Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The letter also described how VA calculates disability ratings and effective dates. The Board finds that the content of the May 2006 letter satisfied the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist, including the requirements set forth by the Court in Dingess and in Kent. In addition, the January 2007 rating decision and June 2007 SOC explained the basis for the RO's action, and the SOC provided him with an additional 60-day period to submit more evidence. Thus, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. New and Material Evidence to Reopen the Claim In September 2004, the veteran raised a claim of entitlement to service connection for diabetes mellitus and hypertension. This claim was denied in a November 2004 rating decision. Although he initiated an appeal by filing a Notice of Disagreement, the veteran did not file a timely Substantive Appeal. Consequently, the September 2004 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. However, the RO considered the veteran's untimely filed Substantive Appeal to be a request to reopen his claim. In June 2006, the RO determined there was no new and material evidence to reopen the claim. However, the RO subsequently received the veteran's service personnel records and reopened the claim on the basis that the records constituted new and material evidence, but continued the denial of service connection in the January 2007 rating decision now on appeal. Based on the procedural history outlined above, the first issue for consideration with respect to the veteran's claims is whether new and material evidence has been received to reopen the claims. It appears that the RO addressed the diabetes and hypertension claims on the merits. However, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board is whether new and material evidence has been presented. The evidence of record at the time of the last final rating action denying the veteran's claim of entitlement to service connection for diabetes and hypertension, in November 2004, contained in-service medical records including entry and separation examinations, and post-service evidence including outpatient records from the Milwaukee VAMC. Evidence added to the record since the time of the last final denial in September 2004 are copies of the veteran's service personnel records. These records confirm the veteran's description of his job duties while in active service. Specifically, the veteran served aboard the USS William V. Pratt from October 1969 to May 1971, when he separated from the Navy. 38 C.F.R. § 3.156(c) provides that if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Thus, the veteran's service personnel records constitute new and material evidence. Therefore, the Board finds that the criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim is reopened. Because the RO considered the merits of the underlying service connection claim in the January 2007 rating decision on appeal, the Board may proceed with appellate review at this time without prejudicing the veteran. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). III. Service Connection on the Merits Having determined above that new and material evidence has been presented, the Board will now consider the underlying service connection claim. In the present case, the veteran contends that he has diabetes mellitus and hypertension as a result of exposure to jet fuel, mustard gas, and asbestos during active service. A. Applicable Laws and Regulations Under the relevant laws and regulations, service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a 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). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as diabetes mellitus and hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21- 1"). Also, an opinion by the VA Office of General Counsel has discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The Board notes that the aforementioned provisions of Manual M21-1 have been rescinded and reissued, as amended, in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the veteran's claim of entitlement to service connection for asbestosis or other asbestos-related diseases under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. B. Facts and Analysis The Board will now consider whether a nexus has been shown between the veteran's diabetes mellitus and/or hypertension and active service. As discussed above, the veteran's personnel records indicate he served aboard the USS William V. Pratt, a U.S. Navy destroyer, from October 1969 to May 1971. The veteran asserts in his April 2006 letter that he was a fireman assigned to the boiler room, and thus, he was exposed to both asbestos and jet fuel. His duty assignment is confirmed by the veteran's service personnel records. In addition, in September 2006 correspondence, the veteran states he was exposed to mustard gas while in boot camp and on board the Pratt. Exposure to chemicals is consistent with the time, place, and circumstances of the veteran's service. See 38 U.S.C.A. § 1154. Thus, the Board concedes, for the purpose of the present decision, that exposure to chemicals may have occurred during active service while performing the duties of a fireman aboard a ship, and during boot camp. However, a history of exposure to chemicals, in and of itself, is not a disability for VA purposes. The veteran, in this case, must show a nexus between his current diabetes mellitus and hypertension and exposure to hazardous chemicals, including asbestos, in order to receive entitlement to service connection. In this regard, the veteran's service treatment records have been reviewed. Both the entry and separation examinations indicate good health. There is no mention of diabetes mellitus, hypertension, or high blood pressure in either examination. Additionally, there are no other service treatment records relating to treatment for diabetes mellitus or hypertension or for symptoms of those conditions. Following separation from service, the first indication of diabetes and hypertension is contained in a March 2003 outpatient VA clinic note, wherein it is reported that the veteran came in for an initial diabetes assessment in December 2002, and diagnoses of both diabetes and hypertension are listed. The veteran contends that he was diagnosed with diabetes in 1998, but there is no documentation of that in the evidence of record. In any case, the Board notes that evidence of a prolonged period without medical complaint, and the amount of time which intervened since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical records from the outpatient VA clinic indicate the veteran went in regularly for check-ups and monitoring of both his diabetes mellitus and hypertension from March 2003 to November 2004. Throughout the treatment notes, the doctors are shown to have advised the veteran to adhere to a strict diet and exercise regimen and to cease smoking cigarettes. In addition, the veteran was taking medication for his diabetes. There are no competent opinions contained in these records to the effect that the veteran's diabetes and hypertension are related to either his military service or to exposure to hazardous chemicals, including asbestos. Indeed, much of the veteran's treatment plan has been related to diet, exercise and weight-loss, which indicates his problems may be weight-related. Further, the Board notes that neither diabetes nor hypertension is typically considered to be an asbestos-related disease in the medical literature. There are no additional documents contained in the evidence of record indicating that the veteran sought further treatment for his diabetes and hypertension. With regard to the presumptive service connection provisions in the law for chronic diseases, the evidentiary record herein is negative for any manifestation of diabetes or hypertension within the veteran's first post-service year. Thus, because the evidence fails to establish any clinical manifestations of diabetes and hypertension within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease are not satisfied. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The veteran asserts he was first diagnosed with diabetes in 1998 and that his hypertension was caused by, or associated with, his diabetes. Even if his statements can be construed as alleging continuity of symptoms since active service, the history as provided by the veteran places the inception of diabetes and hypertension almost 30 years after he left the Navy. Moreover, the absence of documented complaints or treatment for almost 30 years following military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Therefore, continuity has not here been established, either through the competent medical evidence or through the veteran's statements. In this regard, the Board acknowledges the above-cited M21 provision that VA should consider that asbestos-related diseases can often appear 10 to 45 years after exposure. However, even taking this into consideration, given the lack of competent opinions anywhere in evidence relating the veteran's diabetes and hypertension to service or to asbestos exposure, the Board finds that there is no evidence that the veteran's diabetes mellitus and/or hypertension are related to asbestos exposure. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board finds that the weight of the competent evidence is against a grant of service connection. While the veteran may have been exposed to asbestos and other hazardous chemicals in service, diabetes mellitus and hypertension have not been identified as asbestos-related disorders. Furthermore, there is no competent evidence of a nexus between these disabilities and service, including exposure to asbestos or other chemicals. In view of the foregoing, the preponderance of the evidence is against the claim, and there is no doubt to resolve in the veteran's favor. ORDER The reopened claim of service connection for diabetes mellitus is denied. The reopened of service connection for hypertension is denied. _______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs