Citation Nr: 1036633 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 07-17 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty as a member of the Air National Guard from September 1972 to August 1976. He also served in the National Guard from December 1979 to December 2004, which included periods of active duty and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. FINDINGS OF FACT 1. The evidence preponderates against a finding that diabetes mellitus, type II, was manifested prior to September 2004. 2. During September and October 2004, the Veteran served on inactive duty for training. 3. There is no indication or suggestion that the Veteran's diabetes mellitus is due to an injury incurred during inactive duty for training. 4. The Veteran's service did not involve duty or visitation in the landmass of the Republic of Vietnam or in the inland waters of Vietnam, and he was not, otherwise, exposed to herbicides during military service. 5. The competent and probative evidence of record preponderates against a finding that the Veteran's diabetes mellitus was incurred as a result of exposure to pesticides during service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active military service; nor may it be presumed that diabetes mellitus was incurred during service, to include as a chronic disease or as a result of exposure to herbicides therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2009). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including diabetes mellitus, 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). The Court 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 incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis of a condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The Veteran has asserted that service connection is warranted because he was diagnosed with diabetes mellitus while he was a member of the Air National Guard. The service treatment records reflect that, in October 2004, the Veteran was noted to have been recently diagnosed with diabetes mellitus based on fasting blood glucose and glucose tolerance tests. The October 2004 treatment record noted that the Veteran was being treated by his private physician, Dr. P., who was contacted for additional information, which was received and included a pathology report, dated September 2004, that contained a glucose reading of 171. The September 2004 pathology report contains a notation of "diabetes," with an additional notation to contact the Veteran regarding this finding. The service treatment records contain several other glucose readings that were taken during the Veteran's 30 year period of military service; however, all of the glucose readings were within normal limits, providing evidence against this claim. See service treatment records dated November 1988, September 1992, August 1997, and June 2002. In this regard, the Board notes that the Veteran exhibited an elevated level of glucose (104) in November 1988. While this glucose reading represents an elevated level of sugar in the Veteran's body, this reading was within the range expected, which is reported as 70-110, and is not accompanied with a diagnosis of pre-diabetes or a notation or concern for developing diabetes at that time. See November 1988 pathology report and report of medical examination. The Veteran has also asserted that, if glucose readings were taken in 2003, evidence of diabetes may have been found at that time. While the Veteran's assertion may be true, there is no clinical evidence of diabetes in 2003 and the Veteran has not provided evidence that he manifested symptoms reasonably attributable to diabetes prior to September 2004. Therefore, the Board finds the evidence preponderates against a finding that diabetes mellitus was manifested prior to September 2004. The question is not whether a disability "may" have been found, but whether it would have, at least as likely as not, been found. As noted, the Veteran's military service included service from December 1979 to December 2004, which included periods of active duty and inactive duty for training. However, review of the record reveals that the Veteran only served on inactive duty for training in September and October 2004, the time during which he is shown to have been first diagnosed with diabetes mellitus. See February 2007 AF Form 526. In this regard, the Board notes that there is no indication or suggestion that the Veteran's diabetes mellitus was the result of an injury incurred during his period of inactive duty service. Therefore, service connection cannot be granted. See 38 C.F.R. §§ 3.6(a), 3.303. As also noted above, there is no indication that the Veteran was diagnosed with diabetes mellitus, or manifested symptoms reasonably associated with diabetes mellitus, prior to September 2004, including during a period of active duty service. Therefore, there is no basis on which to grant service connection for diabetes mellitus on a direct basis. The Board has considered whether service connection can be granted on a presumptive basis. In this regard, the Board notes that diabetes mellitus is a chronic disease for which presumptive service connection is available. See 38 C.F.R. § 3.307, 3.309(a). However, in order for that presumption to apply, the Veteran must have been diagnosed with diabetes mellitus within one year of service that included 90 days of continuous, active service. See 38 C.F.R. § 3.307(a)(1-3). In this case, the Veteran's only period of service that satisfies the service requirement of 38 C.F.R. § 3.307(a)(1) was from September 1972 to August 1976. Indeed, the Board notes that the Veteran's service from December 1979 to December 2004 did not include a period of 90 continuous days of active duty service but, instead, consisted of interspersed periods of active duty and inactive duty for training. See February 2007 AF Form 526. Therefore, because the Veteran's diagnosis of diabetes mellitus was rendered more than 20 years after his only period of qualifying active service, the presumption of service connection for chronic diseases is not for application in this case. The Veteran has also asserted that his current diagnosis of diabetes mellitus may be related to his exposure to pesticides while serving in Saudi Arabia. He has asserted that he was exposed to Malathion and other pesticides that were used to combat mosquito problems at the Khobar compound in Saudi Arabia. The Board notes there is no presumption available for diseases associated with exposure to pesticides. Instead, the law provides a presumption for veterans who served in Vietnam during the Vietnam War and developed diseases, including type II diabetes mellitus, that are associated with exposure to certain herbicides. See 38 C.F.R. § 3.307, 3.309(a). The Veteran testified that, while he served during the Vietnam War era, his service did not include in-country service in the Republic of Vietnam, which is required to give rise to the presumption. See 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Therefore, the presumption of service connection based upon herbicide exposure is not for application in this case. In this context, the Board also notes there is no evidence that herbicides were used in any location where the Veteran served during his period of military service; nor is there any medical evidence or opinion of record which relates the Veteran's diabetes mellitus to exposure to herbicides. Therefore, service connection for diabetes mellitus, as related to exposure to herbicides, is not warranted. Likewise, while the Veteran has asserted that his diabetes mellitus may be related to exposure to pesticides in service, the Board finds the most competent and probative evidence of record is against such a finding. Indeed, a VA physician examined the Veteran and reviewed his claims file in March 2007 and opined that it is less likely than not that the Veteran's diabetes is related to his exposure to pesticides. In making this determination, the VA examiner noted that there is no known association between pesticide exposure and the diabetes in the medical literature. It appears that the March 2007 VA examiner was aware of all relevant facts in this case and he provided a rationale in support of his conclusion. In addition, there is no opposing medical opinion of record that suggests that the Veteran's diabetes is related to his reported exposure to pesticides during service. Therefore, the Board finds the March 2007 VA opinion is the most competent and probative evidence of record that addresses the likelihood that the Veteran's diabetes is related to his exposure to pesticides during service. Because the most competent and probative evidence of record preponderates against a finding of a causal relationship between the Veteran's diabetes mellitus and any in-service exposure to pesticides, service connection cannot be granted on that basis. In sum, the Board finds the preponderance of the evidence is against the grant of service connection for diabetes mellitus. Diabetes mellitus was diagnosed in or around the time the Veteran served on inactive duty for training and there is no indication that the disability was due to an injury incurred therein. In addition, diabetes mellitus was diagnosed more than 20 years after his only period of continuous, active service. Moreover, there is no indication that the Veteran was exposed to herbicides during service and the competent and probative evidence preponderates against a finding that his diabetes is related to exposure to pesticides during service. Therefore, the Board finds there is no basis on which to award entitlement to service connection for diabetes mellitus and, thus, the Veteran's claim cannot be granted. Because the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties 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 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159, 3.326(a) (2009). 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2005 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The RO also sent the Veteran a letter in March 2006 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained the Veteran's service treatment records and all post-service treatment records identified by the Veteran. Indeed, 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. In addition, the Veteran was afforded a VA examination in conjunction with this claim in March 2007. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board finds 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. ORDER Entitlement to service connection for type II diabetes mellitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs