Citation Nr: 1127800	
Decision Date: 07/26/11    Archive Date: 08/02/11

DOCKET NO.  08-03 873	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus.

2.  Entitlement to service connection for a sleep disorder.

2.  Entitlement to service connection for a heart disorder, to include as secondary to diabetes mellitus.

4. Entitlement to service connection for an eye disorder, to include as secondary to diabetes mellitus. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran served on active duty from October 1969 to September 1971. 

This appeal to the Board of Veterans' Appeals (Board) is from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.


FINDINGS OF FACT

1.  The probative and credible evidence of record does not confirm that the Veteran had service, or other duty or visitation, in the Republic of Vietnam.  Service personnel records and the DD Form 214 report no foreign or sea service and show that his orders to Vietnam were revoked.  As such, there is no presumption of exposure to Agent Orange or other herbicide agents during his military service, and there is otherwise insufficient evidence to show that the Veteran had exposure to Agent Orange or other herbicide agents during his military service.  

2.  A benign eyelid lesion was removed in July 1998, and there is no current medical evidence of an eye disorder or residuals of the benign eyelid lesion.   

3.  Diabetes mellitus, heart and sleep disorders, and an eyelid disorder are not shown during service or until many years after service, and are not shown by any competent medical evidence to be etiologically linked to the Veteran's military service.  The Veteran also has not made any specific lay assertions regarding continuity of symptomatology since service for any of these disorders.  

4.  With regard to secondary service connection for a heart and eye disorder, the veteran is not service-connected for the underlying diabetes mellitus, such that there is no service-connected disability to which his heart or eye disorder may be secondary to.    


CONCLUSION OF LAW

Diabetes mellitus, a heart disorder, a sleep disorder, and an eye disorder were not incurred in or aggravated by service; nor is secondary service connection warranted; nor may service incurrence be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.313 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

That is, by way of a letter dated in February 2007, the RO advised the Veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing.  38 U.S.C.A. § 5103(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claims.  See 73 FR 23353 (Apr. 30, 2008).  Consider, as well, the RO issued that February 2007 VCAA notice letter prior to initially adjudicating the Veteran's claims in April 2007, the preferred sequence.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II).

It equally deserves mentioning that that February 2007 VA letter also informed the Veteran of the downstream disability rating and effective date elements of his claims.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  And since providing that VCAA notice, the RO has gone back and readjudicated his claims in a statement of the case (SOC) issued in January 2008, considering any additional evidence received in response to that additional notice.  This is important to point out because if, as here, the notice provided prior to the initial adjudication of the claim was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Thus, the veteran has received all required notice in this case, such that there is no error in the content of VCAA notice.  In fact, the Board concludes prejudicial error in the content or timing of VCAA notice has not been established as any error was not outcome determinative.  See again Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims that is obtainable.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained his service treatment records (STRs), service personnel records, and private treatment records have been received from the Veteran or his representative.  However, as will be explained concerning service connection for his several disabilities, there is no credible or probative evidence suggesting he had diabetes mellitus, sleep disorder, heart disorder or eye disorders while in service, or even for many years after his service discharge.  There is not even a lay allegation of continuity of symptoms.  The claimed secondary relationship of his heart and eye disorders to diabetes mellitus is also not pertinent, absent service connection for the underlying diabetes mellitus.  So the Board also is not required to have him undergo a VA compensation examination for a medical nexus opinion concerning any of these claims.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  The Board emphasizes that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide a VA examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).  

Therefore, VA has provided all assistance required by the VCAA and appellate review may proceed without prejudicing the Veteran.

II.  Service Connection Laws and Regulations

The Veteran asserts that he was in the Republic of Vietnam and that he was exposed to Agent Orange.  He contends that as a result of his military service and exposure to Agent Orange, he has a sleep disorder and diabetes mellitus, and that his heart and eye disorders are associated with his diabetes mellitus.  See December 2006 claim and February 2009 Veteran's statement.  

Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.   Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).  

A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or was seen in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  In order to establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id.

In addition, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above.  38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  To establish continuity of symptomatology, the Court held a Veteran must show  "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr, 21 Vet. App. at 307.  Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation.  Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence.  Id. at 1337.

Certain diseases like cardiovascular disease and diabetes mellitus, are chronic, per se, and therefore may be presumed to have been incurred in service if manifest to a compensable degree (generally of at least 10-percent disabling) within one year of discharge from service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

In addition to these presumptive provisions, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he or she was not exposed to any such agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iii).

For the purpose of this section, "the term 'herbicide agent' means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram."

If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e).  This list of diseases includes: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (adult onset), ischemic heart disease, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, soft-tissue sarcoma, ischemic heart disease, Parkinson's disease, and B cell leukemias.  See 38 C.F.R. § 3.309(e).

These diseases, however, must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne (or other acneform disease consistent with chloracne) must become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service.  See 38 C.F.R. § 3.307(a)(6)(ii). Moreover, VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Health Effects Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 - 32,553 (Jun. 8, 2010); 72 Fed. Reg. 32,395 - 32,399 (June 12, 2007).  

Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements.  First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e).  Brock v. Brown, 10 Vet. App. 155, 162 (1997).  However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App. 164, 167 (1999).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2002).  In fact, the Federal Circuit Court recently held that medical evidence is not categorically required when the determinative issue involves either medical etiology or diagnosis but rather such issue may, depending on the facts of the case, be established by competent lay evidence under 38 U.S.C. § 1154(a).  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to").  Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  See id. at 1316.  

Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau, 492 F.3d at 1377 (footnote omitted).  For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer.  Id. at 1377 n.4.

In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307-09.  But "[t]he 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."  Id. at 308.  See also Savage, 10 Vet. App. at 498.  

Lastly, a disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b), effective October 10, 2006.  See 71 Fed. Reg. 52,744-52,747 (September 7, 2006).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998).  See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability).   

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

III.  An Eye Disorder Secondary to Diabetes Mellitus

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Here, the Veteran has neither provided nor identified any competent and credible medical or lay evidence showing a current diagnosis of an eye disorder, including at any point since filing the claim.  The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). 

Initially, the Veteran's STR's are absent for any complaints, findings, or treatment for an eye disorder.  The post-service record is absent for any medical evidence or probative lay evidence of an eye disorder other than a July 1998 report of benign left eyelid lesion.  Surgery was scheduled for that problem, and there are no further clinical findings on the matter.  While the Board is aware that it is well known that various eye disease, such as diabetic retinopathy are complications from diabetes, but here, the record is absent for any pertinent medical or lay evidence of any such complication. 

The Board realizes the Veteran is competent, even as a layman, to proclaim for example having experienced problems seeing or an eye condition.  Indeed, he is even competent to make this proclamation absent any supporting contemporaneous medical evidence such as treatment records.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records).  But his lay testimony concerning this also must be credible and probative.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  Here though, the Veteran has generally reported an eye disorder associated with his diabetes mellitus, but he has not provided any description of the eye problem or any other pertinent or probative lay evidence regarding an eye disorder for that matter.  

With regard to secondary service connection for an eye disorder, absent the award of service connection for the underlying diabetes mellitus as discussed more below, there is no basis to establish secondary service connection by way of causation or aggravation for an eye disorder.  See 38 C.F.R. § 3.310(a), (b).       

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an eye disorder, both on a direct basis as well on a secondary basis to diabetes mellitus.  Accordingly, there is no reasonable doubt to resolve in his favor, and this claim must be denied.  38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV.  Diabetes Mellitus, Heart and Sleep Disorders

There is no disputing the Veteran has the required current diagnoses of diabetes mellitus and a heart disorder (coronary artery disease requiring coronary artery bypass graft surgery in October 2001).  These disabilities are clearly shown in the record.  The medical evidence of record also shows long term medical prescriptions for Ambien, a medication generally known to assist with sleep or a sleep aid.  As a result, the Board concedes there is also current medical evidence of a sleep disorder. Boyer v. West, 210 F.3d. at 1353; Brammer, 3 Vet. App. at 225.  Consequently, the determinative issue is whether these disabilities, diabetes mellitus, heart, and sleep disorders are attributable to the Veteran's military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

With respect to exposure to Agent Orange and herbicides, there is no disputing the Veteran has coronary artery disease, necessitating coronary artery surgery in October 2001.  Coronary artery disease and/or ischemia has recently been included on the list of diseases presumptively associated with exposure to Agent Orange in Vietnam during the Vietnam era.  See 38 C.F.R. § 3.309(e) (to be codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53,202 - 53,205 (August 31, 2010).  However, the medical evidence also consistently shows the Veteran has been diagnosed with juvenile diabetes dating to 1991, rather than adult onset diabetes.  Juvenile diabetes is not among the presumptive diseases listed for Agent Orange exposure.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).

In any event, despite his assertion of serving in the Republic of Vietnam, no probative evidence of record demonstrates that the Veteran ever set foot in the Republic of Vietnam or on the inland waterways, for that matter, to entitle him to consideration of this presumption.  The Veteran's DD Form 214 shows that he had active service from October 1969 to September 1971 and no foreign or sea service.  The Veteran STR's show treatment and examinations at the U.S. Army Hospital, at Fort Campbell, Kentucky from 1969 through late 1971.  Most importantly, a February 1971 service personnel record shows that the Veteran's overseas assignment to the Republic of Vietnam was revoked, and he was reassigned to a component at Fort Campbell, Kentucky.  This especially provides very strong evidence against the claim.  The Veteran indicated in a February 2009 statement that he was in Vietnam, but he failed to provide any explanation of when precisely and under what circumstances he was there.  There is also no probative evidence of any kind describing how the Veteran would have been otherwise exposed to herbicides.  

In the absence of any probative or credible evidence that the Veteran served in the Republic of Vietnam at any time, or that he was exposed to herbicides in any way, he is not entitled to the presumption for listed diseases associated with exposure to herbicides, here coronary artery disease, since juvenile diabetes is not a presumptive disease under the regulation.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.

Even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis.  Combee, supra.  The Board must now turn to addressing these claims on both a direct-incurrence basis as well as a presumptive basis for chronic diseases. 

STR's are absent for any complaints, treatment, or findings, referable to diabetes mellitus, cardiovascular disease, or a sleep disorder.  There is a reported medical history juvenile diabetes to dating to 1991, and records in the claims folder show treatment in January 1994.  The post service clinical data reports an abnormal electrocardiogram sometime in 2000, with report of chest pain ion July 2001, with coronary artery by-pass graft times 3 in October 2001 for coronary artery disease. Regarding a sleep disorder, Ambien, a medication generally known to assist with sleep is first reported to have been prescribed in March 1996. 

Therefore it must be stated that the Veteran's diabetes mellitus, heart sleep disorders are not shown during service.  His service records provide highly probative evidence against the claim.  Struck v. Brown, 9 Vet. App. 145 (1996). Also, the diabetes mellitus (juvenile) and a heart disorder are not shown within one year after the Veteran's military service separation.  All of these disabilities are first shown many years after the Veteran's military service.  There is no record of any lay complaint, let alone treatment, for these conditions until many years after service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Further, there is absolutely no medical opinion of record linking any of these disorders to the Veteran's military service.  Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000).   

With regard to continuity of symptoms, the Veteran also has not made any specific lay assertions regarding continuity of symptomatology since service for any of these disorders.  

Since diabetes mellitus is not shown to be related to the Veteran's military service on any service connection basis, consideration of the claim for a heart disorder on a secondary basis is rendered moot.  See 38 C.F.R. § 3.310(a) & (b); Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 148, 158 (1998).

The Veteran has provided limited, if any, lay testimony concerning his claimed disabilities, with inferences remaining at best.  While he may well believe that his current disabilities, particularly diabetes mellitus and a sleep disorder is traceable back to service, he is not competent to render an opinion as to the medical etiology of his currently diagnosed sleep, diabetes mellitus, or heart disorders, absent evidence showing that he has medical training or expertise.  See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377.  The Board emphasizes that "[t]he 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."  Barr, 21 Vet. App. at 308.  Here, the specific medical diagnoses rendered for these disorders in the present case do not lend themselves to the Veteran competently establishing a nexus between these diagnoses and his military service, as there is insufficient medical and lay evidence of these disorders until decades after discharge from service.  The Veteran does not meet any of the three exceptions for competent lay evidence as listed under Jandreau.  

Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for diabetes mellitus, heart, and sleep disorders, on direct and secondary bases.   Accordingly, there is no reasonable doubt to resolve in the Veteran's favor, and his claims must be denied.  38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





	(CONTINUED ON NEXT PAGE)


ORDER

Service connection for diabetes mellitus is denied.

Service connection for a sleep disorder is denied.

Service connection for a heart disorder, to include as secondary to diabetes mellitus, is denied.

Service connection for an eye disorder, to include as secondary to diabetes mellitus, is denied. 


____________________________________________
PAUL S. RUBIN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs