Citation Nr: 1018271 Decision Date: 05/17/10 Archive Date: 06/04/10 DOCKET NO. 07-22 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for congestive heart failure. 4. Entitlement to service connection for an acquired psychiatric disorder, to include chronic adjustment disorder and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1974 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas which denied entitlement to the benefits currently sought on appeal. This appeal was subject to prior remand by the Board in July and December 2008 to ensure compliance with due process requirements. The evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has been returned to the Board for further appellate review. In particular, each of the above remands was for the purpose of affording the Veteran additional opportunities to provide personal testimony at a requested hearing before the Board. The Veteran had been scheduled for videoconference hearings in June, July and October 2008, however the record reflects that he failed to appear for each. There was some lack of clarity as to the proper mailing address to which the hearing notices should have been sent, so upon Board determinations that this represented good cause for failure to report, the Veteran was scheduled for a fourth hearing opportunity by Travel Board in February 2009. See, e.g., Hearing notice mailed to confirmed address, January 2009; Ruling on motion for rescheduled hearing, December 2008. However, the Veteran again failed to appear for the scheduled Travel Board hearing in February 2009, without submitting a request for postponement. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702(d) (2009). Accordingly, this Veteran's request for a hearing is now considered withdrawn. Prior to analyzing the Veteran's claims, the Board acknowledges the court ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims, specifically to include those for psychiatric disorders. As emphasized in Clemons, though a Veteran may only seek service connection for a given condition such as PTSD, or here depression, the Veteran's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's overall psychiatric symptomatology. The Board will therefore broadly analyze the Veteran's current claim for service connection for a psychiatric disorder as recharacterized on the cover page of this appeal. FINDINGS OF FACT 1. The service treatment records do not reflect in-service complaint, diagnosis, or treatment for diabetes, hypertension, heart disease or injury, or any psychological disorder. 2. There is no evidence of diabetes or hypertension manifested to a compensable degree within an applicable presumptive period following discharge from service. 3. None of the claimed disabilities are shown to be causally or etiologically related to military service. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. Hypertension was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. Congestive heart failure was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 4. An acquired psychiatric disorder, to include chronic adjustment disorder and depression, was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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, 3.159, 3.326 (2009). In correspondence dated in June 2006, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims of service connection for congestive heart failure, hypertension, diabetes, and depression, to include descriptions of information and evidence that VA would seek to provide and that which the Veteran was expected to provide in support of his claim. This pre-adjudicatory notice letter also described the process by which initial disability ratings and effective dates are established. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice fully complies with the applicable regulations and case law. VA has also assisted the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. Notably, although records from Dr. M. Kelly were requested but not received from the physician, the Veteran stated in writing that Dr. Kelly did not possess any additional records separate from those already received and of record from Jefferson Regional Hospital. Statement in support of claim, October 2006. The Veteran has also been medically evaluated in conjunction with his claim for benefits, to include for the purpose of nonservice-connected pension already granted by the RO. VA examinations, August 2006; see also Rating decision, November 2006. Although neither examiner provided a medical nexus opinion with regard to service connection, or was asked to do so, the Board is only required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, as described below, there is no credible and competent evidence to establish that the Veteran suffered an event, injury or disease during military service to which the currently claimed conditions may be associated. As such, no medical opinion is required and the duty to assist is fulfilled. Service Connection The Veteran seeks service connection for diabetes, hypertension, congestive heart failure, and a psychiatric condition. In order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (holding that the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed). Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, diabetes mellitus or hypertension) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309. As an aside, the Board also notes that although diabetes mellitus is a disease subject to presumptive service connection for veterans exposed to certain herbicide agents in Vietnam, there is no evidence that shows, nor does the Veteran contend, that he ever served inside the Republic of Vietnam during his military service. See 38 C.F.R. § 3.309. Here, the medical evidence of record clearly demonstrates diagnoses and treatment for the claimed disabilities. An August 2006 VA general medical examination confirmed diagnoses of essential hypertension, stable congestive heart failure, and diabetes mellitus. A contemporaneous VA mental disorders examination reflects diagnosis of adjustment disorder with depressed mood. See The Diagnostic and Statistical Manual of Mental Disorders § 309.0 (Am. Psychiatric Ass'n 4th ed.) (1994). As such, current disabilities are established for the purposes of the service connection claims herein. However, the evidence of record does not show that any of the claimed disabilities are medically related to the Veteran's military service in any way. Initially, the Board carefully reviewed the Veteran's service treatment records. Upon enlistment examination in November 1974, a systolic heart murmur was identified. However, upon clinical evaluation, the examining medical doctor found that chest x-ray, electrocardiogram, and cardiac contour were all within normal limits. The examiner concluded that there was a functional heart murmur, but no evidence of any organic heart disease, and the Veteran was found fit for military duty. Service treatment records, November 1974. The Veteran reported experiencing sharp chest pains after eating in the mess hall in April 1975, however, he was determined to have only indigestion, commonly called heartburn. He was prescribed Mylanta and returned to duty. There are no other complaints, diagnosis, or treatments for any heart impairment during service. The heart was clinically evaluated to be within normal limits prior to discharge in March 1976. Furthermore, the post-service treatment records do not show that a medical professional has related the Veteran's currently diagnosed heart disease with his military service. As such, service connection for congestive heart failure is not warranted. 38 C.F.R. § 3.303. Similarly, the service treatment records reflect no complaint, diagnosis, or treatment for diabetes mellitus, hypertension, or a psychiatric disorder during military service. Upon military separation examination in March 1976, the endocrine system and psychiatric condition were determined to be clinically normal. Urinalysis for sugar in the blood was reported as negative, and blood pressure was reported as 120/80. Service treatment records. As described above, a specific medical nexus opinion has not been requested and is not required given the circumstances of this case as there is no evidence of in-service onset or any other causal association with military service for any of the claimed disabilities. Instead, the Board notes that the Veteran has reported a family medical history significant for hypertension, a brother with diabetes, and mother with congestive heart failure. Private hospital examination report, January 2006. In the absence of evidence of relevant disease or injury during service, or any medical relationship between the claimed disabilities and military service, direct service connection for diabetes mellitus, hypertension, and a psychiatric disability is not warranted. 38 C.F.R. § 3.303. Furthermore, the Veteran indicates that his diabetes disability began in September 2004, and his hypertension disability began in March 2006, approximately three decades after his discharge from service. Veteran's Application for Compensation & Pension, March 2006. Even though the Veteran reported an earlier onset of hypertension in 1996 at the time of his VA general medical examination, this is still approximately twenty years after the conclusion of his active military service. VA examination, August 2006. In accord with the history reported by the Veteran, there is no medical or lay evidence of diabetes or hypertension manifested to a compensable degree within the one year presumptive period following discharge from service. As such, presumptive service connection for diabetes mellitus or hypertension is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Board has considered applicability of the benefit of the doubt doctrine in this case. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for diabetes, hypertension, congestive heart failure, and a psychiatric disability. As such, that doctrine is not applicable in the instant appeal and his claims must be denied. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for hypertension is denied. Service connection for congestive heart failure is denied. Service connection for an acquired psychiatric disorder, to include chronic adjustment disorder and depression, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs