Citation Nr: 1237661	
Decision Date: 11/02/12    Archive Date: 11/09/12

DOCKET NO.  06-26 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for type II diabetes mellitus.

2.  Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. C. Mackenzie, Senior Counsel


INTRODUCTION

The Veteran served on active duty from April to August of 1960 and was subsequently in the United States Army Reserve for a period including May 1971 through May 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  The case was remanded in January 2009 and January 2011.  

In prior remands, the claim for service connection for an acquired psychiatric disorder was characterized as an issue of whether new and material evidence had been received to reopen a claim for service connection for an acquired psychiatric disorder.  To this end, the Board notes that a claim for service connection for a "nervous condition" was denied in an unappealed February 1962 rating decision.  Since the issuance of that decision, however, VA has received copious service department documentation, including numerous service personnel records concurrent with the Veteran's period of active duty service in 1960.  These records include his application for enlistment and his record of discharge/release from active duty (on the basis of "unsuitability").  These records were not contained in the claims file as of the February 1962 rating decision.   Pursuant to 38 C.F.R. § 3.156(c), these service department records are "relevant, " and VA must reconsider the claim on its merits.  The claim has accordingly been recharacterized.

The Board's January 2011 remand included claims for service connection for bilateral hearing loss and tinnitus, both of which were granted in a May 2012 rating decision.  In August 2012, however, the Veteran applied for an increased evaluation for bilateral hearing loss.  This claim is accordingly referred to the Agency of Original Jurisdiction for appropriate action.

The claim for service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's currently diagnosed type II diabetes mellitus has not been shown to be etiologically related to his period of active duty service or to a period of active duty for training.


CONCLUSION OF LAW

Type II diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been.  38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 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).  

In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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.   Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a July 2004 letter, issued prior to the appealed August 2005 rating decision.  This letter pre-dated the Dingess/Hartman decision and did not address disability evaluation and effective date considerations, but this omission did not prejudice the Veteran; as the service connection claim is being denied, there is no possibility of a disability evaluation or an effective date for that evaluation being assigned.  The evidence needed to meet the criteria to support the Veteran's claim was further discussed during the September 2007 Travel Board hearing.  

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.   38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA has made all necessary efforts to obtain records of post-service treatment, and records obtained pursuant to these efforts have been associated with the claims file.  In light of the total dearth of competent evidence in support of this claim, as described below, the Board finds that a VA examination is not "necessary" in this case, as the evidence presently of record does not establish that there exists a reasonable possibility that a medical examination or etiology opinion would result in findings favorable to the Veteran.  38 C.F.R. § 3.159(c)(4).  

VA has gone to considerable lengths in this case to obtain all of the Veteran's U.S. Army Reserve records.  Entities contacted by the RO or the AMC include the National Personnel Record Center (NPRC), the Department of the Army, the U.S. Army Reserve Command, the Kansas Adjutant General's office, and the Surgeon General's Office (Department of the Army).  Pursuant to the January 2011 remand instructions, additional service records were received pursuant to inquiries to the service department entities.  Two separate inquiries, from February and April of 2011, were made to the U.S. Army Human Resources Command (Army Reserve), but no response was ever received.  Following a negative response from the NPRC in March 2011, the AMC issued a Formal Finding of Unavailability as to Surgeon General's Office records in April 2011.  The Veteran was also requested to provide additional service records, but an April 2011 Report of Contact reflects that the Veteran did not have any service treatment records in his possession.  

The Board notes that the January 2011 remand contained an instruction to contact the Adjutant General of the State (here, Kansas).  The RO, in fact, had previously made such contact in March 2005, and was informed in February 2006 that Army Reserve records are in St. Louis, Missouri.  The Board separately notes that, in a February 2010 letter from the NPRC in St. Louis, the AMC was notified that requests must be initiated through the Personnel Information Exchange System (PIES).  Subsequent to the Board's remand, it does not appear that direct contact was again made with the Kansas Adjutant General.  However, the AMC did obtain copious additional service department documentation in October 2011, with the PIES identification number indicated on that documentation.  Given the noted February 2006 and February 2010 correspondences, the Board finds that the AMC has, for all intents and purposes, accomplished the evidentiary development that would have been initiated had the Kansas Adjutant General again been contacted.  Thus, the Board concludes that while the AMC did not absolutely or strictly comply with the January 2011 remand, its compliance was entirely sufficient for the purposes of the pending claim, particularly in light of the previous request to the Kansas Adjutant General.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) ("substantial compliance" rather than "strict compliance" is required under Stegall v. West, 11 Vet. App. 268 (1998)).  

The Board also notes that the January 2011 remand included an instruction to contact the Veteran in furtherance of obtaining information and a release form for records of his Workman's Compensation claim(s).  This matter was fully addressed in a February 2011 letter sent by the AMC to the Veteran, but he never responded with either additional information or a signed release form, despite being reissued that letter in combination with a separate April 2011 letter.  Accordingly, the AMC was precluded from pursuing further action to obtain these records.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street,"  and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence).

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Also, certain chronic diseases, including type II diabetes mellitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

For service connection purposes, the term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  38 U.S.C.A. § 101(24) makes a clear distinction between those who have served on active duty for training, as well as those who have served on inactive duty for training.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

In the present case, the Veteran had no documented treatment for type II diabetes mellitus during his period of service in 1960 or at any time prior to 1990.  The Veteran was noted to have type II diabetes mellitus in November 1993 and to be on medication at that time.  A U.S. Army Reserve memorandum from November 1994 indicates that the Veteran had diabetes mellitus that was diagnosed in 1990.  Private treatment records beginning in 1998 confirm this diagnosis.  The claims file, however, contains no treatment report otherwise suggesting a different date of onset or a service-related etiology for this disease.  

The Board has reviewed the service department records to ascertain whether the initially documented treatment for type II diabetes mellitus, noted to be around 1990, was concurrent with a period of active duty for training.  An Army Military Pay Operations record from December 2001 confirms that Veteran had 17 active duty for training days from May 26, 1989 until May 25, 1990; 17 days from May 26, 1990 until May 25, 1991; 24 days from May 26, 1991 until May 25, 1992; 16 days from May 26, 1992 until May 25, 1993; 16 days from May 26, 1993 until May 25, 1994; and 14 days from May 26, 1994 until May 25, 1995.  The specific dates of active duty for training during this time frame, however, are not indicated in this record or otherwise in the service department records.  In other words, there is no evidence to suggest that the Veteran was disabled from a disease incurred or aggravated in the line of duty during active duty for training.

In terms of the Veteran's own contentions, he testified during his September 2007 hearing that he was diagnosed with diabetes mellitus in approximately 1980, during active duty for training.  The Veteran's own lay contentions, even if deemed credible, do not constitute competent evidence with regard to this particular disease.  Unlike varicose veins in Barr or tinnitus in Charles, type II diabetes mellitus is not a disease readily capable of lay observation.  Rather, it is a disease of the endocrine system that is subject to glucose tolerance testing.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  Therefore, the Veteran's claim more closely resembles the Woehlaert (rheumatic fever) scenario than that of the other cases involving manifestations capable of lay observation, and his lay contentions accordingly lack any probative value. 

Overall, the preponderance of the evidence is against the Veteran's claim for service connection for type II diabetes mellitus, and this claim must be denied.  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for type II diabetes mellitus is denied.


REMAND

The Board has reviewed the Veteran's service treatment records.  His April 1960 enlistment examination report was negative for any psychiatric disorders.  In July 1960, however, the Veteran was treated "arriving in a state of hyperventilation" on account of being away from his wife.  He was noted to have apparently had various episodes of depression while in the Navy and was diagnosed with an emotional instability reaction.  Later in the same month, he underwent a board examination, which revealed the same diagnosis.  This diagnosis was noted to have not been the result of the Veteran's own misconduct and was not incurred in the line of duty.  The examiner noted that the Veteran "suffers from an inherent, preexisting personality disorder which renders him unsuitable for any further service in the U.S. Navy," and he was discharged on this basis in the following month.

Subsequent to service, there are indications of record of continuing anxiety problems.  A U.S. Army Reserve memorandum from November 1994 reflects that the Veteran "has" current "medical conditions" including "[a]nxiety."  An August 1999 treatment record from J. W., M.D., indicates that the Veteran "has some chronic anxiety."  Given both these findings and the mental health treatment in service, the Board preliminarily concludes that a VA psychiatric examination is "necessary" to clarify the questions of etiology in this case.  No such examination, however, has been conducted to date.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (the threshold for determining whether there is an indication that the disability in question may be associated with a veteran's service or with another service-connected disability is low).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran must be afforded a VA psychiatric examination, with a psychiatrist or psychologist who has reviewed the claims file and all relevant Virtual VA records.  The examiner must consider the Veteran's reported history and render an multi-axial diagnosis.  For each diagnosed disorder, the examiner must first address whether the disorder clearly and unmistakably preexisted service.  For each disorder which is found to have clearly and unmistakably preexisted service, the examiner must provide an opinion as to whether the disorder clearly and unmistakably did not undergo an increase in severity during service.  For any disorders not found to have clearly and unmistakably preexisted service, the examiner must provide an opinion as to whether the disorder is at least as likely as not (a 50 percent or greater probability) etiologically related to service.  All opinions must be supported by a complete rationale in a typewritten report.

2.  Then, the claim for service connection for an acquired psychiatric disorder must be readjudicated.  If the determination of the claim is unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).


______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs