Citation Nr: 1007654 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-32 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for diabetes mellitus, Type II (DM). ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the above claim. When this claim was originally before the Board in January 2008, it was remanded for further development. FINDING OF FACT The preponderance of the evidence shows that the Veteran's DM was not present in service and is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for DM have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in April 2004 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above. In light of the denial of the Veteran's claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the RO has obtained the Veteran's service and VA treatment records, provided him with a three VA examinations, and obtained a VA medical opinion. See 38 C.F.R. § 3.159(c). There is no indication from the claims file that the Veteran has sought private treatment for his DM, and accordingly, no such records could be obtained. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection The Veteran contends that his DM was incurred during, or caused by, his military service. Specifically, the Veteran contends that his currently diagnosed DM is related to his elevated blood sugar readings during service and his impaired glucose tolerance, which was diagnosed within a year of separation from service. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic disabilities, including DM, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as discussed below, because there is no competent evidence showing that the Veteran's DM was manifest to a degree of 10 percent or more during the first year following separation from service, service connection on a presumptive basis is not warranted in this case. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because it is undisputed that the Veteran had elevated fasting blood sugar (FBS) readings during service, and has subsequently been diagnosed with a DM, the Board will focus on the evidence that pertains to whether the Veteran's DM is related to his military service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In this case, the evidence of record does not show that the Veteran's DM had its onset during active service or is otherwise related to service. Service treatment records are negative for a finding of DM and the Veteran does not contend otherwise; rather, as noted above, the Veteran contends that his DM is related to the high glucose readings he had during service. In this regard, the Board notes that in January 1989, the Veteran's glucose reading was 132, which was noted to be high, as according to the treatment record, a normal reading would be between 75 and 110. In May 1991, the Veteran's FBS was 126. Additionally, in April 2002, the Veteran's FBS reading was 117, which the doctor noted was elevated. During follow-up treatment in May 2002, the doctor noted the Veteran's elevated reading the previous month, as well as his family history of DM, and recommended that the Veteran be placed on a diet. Later that month, the Veteran's FBS was 110, and in July 2002, his FBS reading was 104. In July 2002, a doctor reported that the Veteran had a history of borderline FBS readings, and indicated that although he was "currently ok," he had an increased risk of DM. Further, the evidence of record reveals that the Veteran was not diagnosed with DM until March 2004, 16 months following separation from service, and no competent medical opinion has linked this condition to his military service. In this regard, the Board notes that the Veteran was afforded a VA examination in February 2003 to assess whether he had DM, and if so, whether it was related to service. At the outset of the examination report, the examiner indicated that she had reviewed the Veteran's claims file, noting that he had elevated FBS readings in service, including a reading of 132 in February 1989, 126 in May 1991, and 117 in April 2002. Additionally, the Veteran reported that he had been found to have elevated blood sugar in April 2002, for which he was placed on the Atkins diet and which was attributed to him being overweight. The Veteran also reported a strong family history of DM. Based on diagnostic testing, which revealed a current blood sugar reading of 122, and the results of her examination, the examiner diagnosed the Veteran with impaired glucose tolerance. The examiner also indicated that, insofar as the Veteran did not have DM, no "date of onset" was applicable. In April 2003, the Veteran sought follow-up treatment for his elevated blood sugar reading at the February 2003 VA examination. The doctor assessed the Veteran as having glucose intolerance, and educated him on the lab results and his diet. Subsequently, in March 2004, the Veteran underwent a two-hour glucose tolerance test, which revealed a glucose reading of 230. The doctor reported that the test results revealed that the Veteran was glucose intolerant, and went on to diagnose the Veteran with DM (de novo). She also educated him on diet modification and referred him to the DM education program. The Veteran has since undergone regular VA treatment for his DM. In May 2004, the Veteran was afforded another VA examination by the same examiner that performed the February 2003 examination. The examiner reported that the Veteran had undergone a two-hour glucose tolerance test in March 2004, which had revealed an elevated glucose reading of 230. The examiner noted that, following the March 2003 glucose testing, the Veteran had been provided with a de novo diagnosis of DM and was referred to a nutritionist. At the time of the May 2004 examination, the Veteran's blood sugar reading was 116. Based on the results of her examination, the examiner diagnosed the Veteran with DM, de novo. In compliance with the Board's January 2008 remand, in July 2008, the Veteran was afforded a third VA examination. At the outset, the examiner noted that she had reviewed the Veteran's claims file, noting that the Veteran's service treatment records revealed multiple blood glucose test results demonstrating impaired fasting glucose, but that the Veteran was never started on treatment other than being advised to lose weight and change his diet. The examiner also noted that the Veteran's diagnosis of DM was first confirmed in 2004, after a two-hour glucose test revealed a FBS reading of over 200. The Veteran was then started on Metformin, and in 2005, Glyburide was added. The examiner noted that the doses for both medications had since been increased over the years, and insulin had recently been added. Based on her careful review of the claims folder and her examination of the Veteran, the examiner provided the opinion that the Veteran's DM did not begin during military service or within a year of separation from service, but rather, had its onset more than a year following separation from service. In this regard, the examiner reported that while the Veteran was diagnosed with impaired glucose tolerance during and after military service, he had not been diagnosed with DM during service. Moreover, the examiner noted that there was no clear evidence of DM until March 2004. Finally, in July 2009, an addendum opinion regarding the etiology of the Veteran's DM was obtained from the VA examiner that had conducted the February 2003 and May 2004 examinations. At the outset of the opinion, the VA examiner indicated that she had reviewed the Veteran's claim's file, noting that the Veteran had been diagnosed with impaired glucose tolerance during service, but was not diagnosed with DM until 2004, after he met the established criteria for a diagnosis of DM. In this regard, the examiner stated that a diagnosis of DM is determined by specific criteria established by medical literature, and is based on FBS results or a two-hour glucose blood test, rather than being clinically diagnosed. The examiner went on to state that "impaired glucose tolerance" and "DM" are different medical conditions, differentiated by specific criteria established by the medical literature. Finally, the examiner concluded that it was not at least as likely as not that the Veteran's DM had its onset during active service or within one year of the Veteran's November 2002 separation from service. The Board acknowledges that the Veteran had elevated FBS readings during service and was diagnosed with impaired glucose tolerance within a year of separation from service; however, there is no competent medical evidence of record showing a nexus between the elevated FBS readings and impaired glucose tolerance, and his currently diagnosed DM. Rather, after carefully reviewing the Veteran's claims file, including records indicating that he had been diagnosed with impaired glucose tolerance during and after military service, and examining the Veteran, the July 2008 VA examiner specifically found that his DM did not begin during military service or within a year of separation from service, but rather, had its onset more than a year following separation from service. Similarly, in July 2009, the February 2003/May 2004 VA examiner provided the opinion that it was not at least as likely as not that the Veteran's DM had its onset during active service or within one year of the Veteran's November 2002 separation from service, and provided a rationale for this opinion. Because the assessments of the VA examiners constitute the only competent medical evidence of record addressing the onset of the Veteran's DM, the Board finds that the preponderance of the evidence is against the claim, and thus, service connection for DM must be denied. In reaching this determination, the Board does not question the sincerity of the Veteran's belief that his DM is related to his elevated FBS readings during service. However, he has submitted no competent medical evidence or opinion to corroborate this contention, and as a lay person, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the claim. The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107. Therefore, the Veteran's claim for service connection for DM is denied. ORDER Service connection for diabetes mellitus is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs