Citation Nr: 1015262 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 08-05 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for heart disease, to include as secondary to diabetes mellitus. 4. Entitlement to service connection for a liver disability, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for chronic renal insufficiency, to include as secondary to diabetes mellitus. 6. Entitlement to a permanent and total rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1993 to September 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for diabetes mellitus, hypertension, heart disease, a liver disability, and chronic renal insufficiency; and denied a permanent and total rating for pension purposes. In September 2009, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. At the hearing, appeals in the matters of service connection for a herniated lumbar disc and a disability manifested by high cholesterol were withdrawn by the Veteran. FINDINGS OF FACT 1. Diabetes mellitus was not manifested in service or in the Veteran's first postservice year; a preponderance of the evidence is against a finding that such disease is related to his military service. 2. Hypertension was not manifested in service or in the first postservice year; a preponderance of the evidence is against a finding that hypertension is related to the Veteran's military service. 3. Heart disease was not manifested in service or in the first postservice year; a preponderance of the evidence is against a finding that heart disease is related to the Veteran's military service. 4. Liver disease was not manifested in service, and a preponderance of the evidence is against a finding that the Veteran's liver disease is related to his military service. 5. Chronic renal insufficiency was not manifested in service or in the first postservice year; a preponderance of the evidence is against a finding that chronic renal insufficiency is related to the Veteran's military service. 6. The Veteran has not established service connection for any disability. 7. The Veteran served on active duty for more than 90 days during a period of war. 8. The Veteran's disabilities, including intervertebral disc disease, diabetes mellitus, hypertension, heart disease, a liver disability, and chronic renal insufficiency, are shown to be of such nature and severity as to preclude him from pursuing any substantially gainful employment consistent with his education and experience. CONCLUSIONS OF LAW 1. Service connection for a diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2009). 2. Service connection for hypertension is not warranted; the claim of secondary service connection for hypertension lacks legal merit. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 3. Service connection for heart disease is not warranted; the claim of secondary service connection for heart disease lacks legal merit. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 4. Service connection for a liver disability is not warranted; the claim of secondary service connection for liver disability lacks legal merit. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 5. Service connection for chronic renal insufficiency is not warranted; the claim of secondary service connection for renal insufficiency lacks legal merit. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 6. The criteria for establishing entitlement to non-service connected pension benefits are met. 38 U.S.C.A. §§ 1502, 1521 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.3, 3.314, 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the claim seeking a permanent and total disability rating for pension purposes, inasmuch as such benefit is being granted, there is no reason to belabor the impact of the VCAA in the matter; any notice defect or duty to assist failure is harmless. Regarding the further claims, the Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. A letter in February 2006 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond the record, and has not alleged that notice has been less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records considered by the Social Security Administration (SSA) in a decision awarding him SSA disability benefits have been secured. The RO arranged for a VA examination in June 2005. While the examiner at that time did not have all of the records of the Veteran's private treatment for review it is adequate for rating purposes and another examination is not considered necessary. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA 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. The low threshold standard of McLendon as to when a VA medical examination or opinion is necessary is met. There is no evidence that any claimed disease was manifested during service (or during an applicable ) presumptive period or any medical evidence that the diseases may be associated with service or another service-connected disability. Moreover, as the majority of the claims are based on service connection secondary to diabetes mellitus, for which service connection will not be established, another examination is not considered necessary for adequate disposition of the issues. The Veteran has not identified any evidence that remains outstanding. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including diabetes mellitus, hypertension, heart disease, and renal disease) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for each of these disabilities). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service- connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Diabetes Mellitus The Veteran alleges that his diabetes mellitus had its onset during service. He contends that it must have started years before it was finally first diagnosed in 2004, which would place onset while he was on active duty. His STRs do not show any complaints or manifestations of diabetes mellitus; there were no elevated blood sugar readings noted while he was on active duty. There is no examination for separation from service of record. Records of private treatment dated from 2002, show that the Veteran had elevated blood glucose levels from July 2004. Records dated in August 2004 note an assessment of hyperglycemia, with notations that if diabetes mellitus is confirmed on additional testing, medications should be started. By September 2004, records include a diagnosis of diabetes mellitus. The treatment records do not contain any mention of a relationship between the Veteran's development of diabetes mellitus and his service. On June 2005 VA examination, the impression was type 2 diabetes mellitus. It was noted that diabetes was first diagnosed in 2004. Diabetes mellitus was not manifested during service or within one year following the Veteran's discharge from active duty. There is no competent (medical opinion) evidence of record relating such disability to the Veteran's military service. His own statements relating his diabetes mellitus to service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology; the etiology of diabetes is a complex medical question. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Jandreau v. Nicholson, 492 F. 3d. 1372 (Fed. Cir. 2007). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim. Accordingly, it must be denied. Hypertension, Heart Disease, A Liver Disability, and Chronic Renal Insufficiency The Veteran's STRs do not show complaints or manifestations of hypertension, heart disease, a liver disability or chronic renal insufficiency. These disabilities were noted in post- service treatment records dated in 2004 and thereafter. Consequently service connection for these disabilities on the basis that they became manifest in service and persisted, or on a presumptive basis, as chronic diseases under 38 U.S.C.A. § 1112 is not warranted. On June 2005 VA examination, heart disease was not diagnosed. While a fatty liver, hypertension and chronic renal insufficiency were diagnosed, nothing in the record suggests that any such disability might be related to service. The Veteran underwent cardiac examination at a private facility in October 2004 at which time testing revealed a partially reversible perfusion defect of the antero-lateral wall of the heart. There is nothing in the medical evidence of record that suggests cardiac pathology might be related to the Veteran's active duty service. The Veteran's primary theory of entitlement to service connection for these four disabilities is that each is secondary to, diabetes mellitus. Inasmuch as diabetes mellitus is not service connected, these claims lack legal merit. Accordingly, these claims must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Permanent and Total Rating for Pension Purposes The Veteran contends that he is unable engage in gainful employment due to the combined effects of his diabetes mellitus, a back disability, hypertension, and heart disease. 38 U.S.C.A. § 1521 authorizes the payment of non-service- connected pension benefits to Veterans. To establish entitlement to such benefits, a Veteran generally must (1) have served on active duty during a period of war for 90 days or more, (2) be permanently and totally disabled, (3) does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23, and (4) meets the net worth requirements under 38 C.F.R. § 3.274. 38 C.F.R. § 3.3. The Veteran's active duty from August 1993 to September 1996 was during the Persian Gulf War Era. 38 C.F.R. § 3.2(i). He therefore meets the service requirement for entitlement to non-service-connected pension benefits. In determining whether a Veteran is permanently and totally disabled, both service-connected and non-service-connected disabilities are taken into account. 38 C.F.R. § 3.314(b)(2). Several different means exist to determine whether a Veteran is permanently and totally disabled. First, a Veteran is considered permanently and totally disabled if he is a patient in a nursing home for long-term care. 38 U.S.C.A. § 1502(a)(1). Second, this status also is given to a Veteran who is determined to be disabled by the Commissioner of Social Security (SSA). 38 U.S.C.A. § 1502(a)(2). Third, a Veteran is considered permanently and totally disabled when he is suffering from any disease or disorder determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. 38 U.S.C.A. § 1502(a)(4)(B). Fourth, a finding of permanent and total disability is made on an objective basis when a Veteran is suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person. 38 U.S.C.A. § 1502(a)(4)(A). Total disability is found where the Schedule for Rating Disabilities prescribes a 100 percent rating for the Veteran's disability or combination of disabilities. Id.; 38 C.F.R. § 3.340(a)(2). Further, even if the Veteran does not merit a 100 percent evaluation, he still may establish that he is permanently and totally disabled under 38 C.F.R. § 4.17. Grantham v. Brown, 8 Vet. App. 228, 234 (1995). 38 C.F.R. § 4.17 establishes two requirements that the Veteran must satisfy. First, the Veteran must meet the minimum percent evaluation requirements in 38 C.F.R. § 4.16. [Pursuant to 38 C.F.R. § 4.16, if the Veteran has one disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.] Second, the Veteran must be found to be unable to secure and follow substantially gainful employment by reason of his disability or disabilities. Marginal employment is not necessarily incompatible with such a determination. Further, prior employment or unemployment status is immaterial if in the judgment of the rating board the Veteran's disabilities render him or her unemployable. Finally, where a Veteran fails to meet these objective criteria, a finding of permanent and total disability may be made on a subjective basis when a Veteran is unemployable as a result of disability reasonably certain to continue throughout his life. 38 U.S.C.A. § 1502(a)(3). A determination of whether the Veteran is unemployable is based on extraschedular factors such as his disabilities, age, and occupational background. 38 C.F.R. § 3.321(b)(2). As an alternative to establishing that he is totally and permanently disabled, the Veteran may establish that he is entitled to a non-service-connected pension based on age. Provided that he satisfies the service, net worth, and income requirements, pension benefits will be paid to a Veteran who is 65 years old or older. 38 U.S.C.A. § 1513(a); 38 C.F.R. § 3.3. However, if a Veteran is entitled to non-service- connected pension benefits by reason both of age and permanent and total disability, pension shall be paid only on the basis of his permanent and total disability. 38 U.S.C.A. § 1513(b). The evidence of record indicates that the Veteran was born on July 18, 1971 (and is now 38 years old). Accordingly, he must be found permanently and totally disabled to be found entitled to non-service-connected pension benefits. The Board finds that the evidence of record shows that the Veteran is totally and permanently disabled. His non- service-connected disabilities include diabetes mellitus, heart disease, hypertension, renal disease and liver disease, all secondary to diabetes mellitus. In addition, he has back disability, and gastroesophageal reflux disease (GERD), and has testified that he suffers from dyslexia. The RO assigned a 20 percent rating for diabetes mellitus under 38 C.F.R. § 4.119, Code 7913. The Veteran is on oral medication for diabetes, without evidence of restriction of activity. He is also on medication for control of hypertension (which warrants a 10 percent rating). 38 C.F.R. § 4.104, Code 7101. Renal disease where there is hypertension that is rated at least 10 percent warrants a 30 percent rating (as renal dysfunction). 38 C.F.R. § 4.115b, Code 7541. The Veteran has an additional 10 percent rating for heart disease. 38 C.F.R. § 4.104, Code 7005. His liver disease is asymptomatic and is therefore properly rated 0 percent. 38 C.F.R. § 4.114, Code 7345. These disabilities of a common etiology combine to a 60 percent rating. (38 C.F.R. § 4.25). Other disabilities contributing to the Veteran's unemployability are his low back disorder (Code 5237), GERD (Code 7346), and dyslexia (Code 9326), each of which may be considered 10 percent disabling. Consequently, the schedular criteria for pension under 38 C.F.R. § 4.16 are met. The Board also finds that it is reasonably shown that the Veteran is unable to secure and follow substantially gainful employment by reason of his various disabilities. The June 2005 VA examiner opined that the Veteran's disabilities did not preclude sedentary employment. However, his educational background and employment experience appear to be inconsistent with such employment. The Veteran has a high school education, and his work experience includes laborer, security guard, and delivery helper. He testified at the hearing before the undersigned that he had worked briefly in retail, but was not retained due to his physical disabilities. He submitted September 2009 letters from prospective employees, (with waiver of RO consideration) stating that he was not hired due to his physical disabilities and medical history. In September 2009, he testified that he was unemployed. As he lacks any advanced training or qualifying experience, (given his recent employment history), the evidence of record reasonably shows that the Veteran is unemployable. In light of the foregoing the Board concludes that all the requirements for a permanent and total rating for pension purposes are met, and that the Veteran is entitled to such rating. ORDER Service connection for diabetes mellitus is denied. Service connection for hypertension, to include as secondary to diabetes mellitus, is denied. Service connection for heart disease, to include as secondary to diabetes mellitus, is denied. Service connection for a liver disability, to include as secondary to diabetes mellitus, is denied. Service connection for chronic renal insufficiency, to include as secondary to diabetes mellitus, is denied. A permanent and total disability rating for pension purposes is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs