Citation Nr: 1301119 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-02 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant enlisted in the National Guard in April 1964, and was discharged by reason of physical disability in November 1964; the discharge was based on an injury to his eardrums. He subsequently had active service in the United States Army from June 1972 to May 1974, when he was discharged for unsuitability. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas, that denied service connection for diabetes mellitus claimed as due to exposure to herbicides in the Republic of Vietnam. On November 2, 1999, the RO received correspondence from the appellant stating that he was appealing the denial of his diabetes mellitus claim; however, the RO did not issue him a Statement of the Case. When the appellant submitted another written statement in which he disagreed with the denial of his diabetes claim in June 2001, the RO informed the appellant that his notice of disagreement was untimely and that new and material evidence was required to reopen his claim. The appellant submitted additional evidence relating to his diabetes claim in July 2002, but the RO did not take any action. The appellant has continued to submit evidence since that time. The RO subsequently issued another rating decision, in July 2005, in which the appellant's claim for service connection for diabetes mellitus was denied on the merits. The RO did not make any reference to the October 1999 rating or the appellant's November 1999 notice of disagreement. The Board notes that new and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). However, a claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b). Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). The Board, therefore, finds that because no Statement of the Case was issued after the appellant submitted his notice of disagreement to the October 1999 rating action, the appellant's claim has been pending since the original claim was submitted in 1999. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The appellant did not have service in the Republic of Vietnam during the Vietnam era, and exposure to Agent Orange or other herbicidal agents is not presumed. 2. The appellant's diabetes mellitus was not shown during service, or within a year following discharge from service. 3. The appellant has not submitted competent evidence to establish a nexus between any in-service incident and the claimed diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as presumptively due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA's Duty 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case or a Supplemental Statement of the Case. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant with a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, the unfavorable October 1999 rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current 38 U.S.C.A. § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the 38 U.S.C.A. § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, a Veteran has the right to a content-complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the appellant was provided with VCAA notice letters in January 2005, and March 2005. While these letters were issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the January and March 2005 VCAA letters were issued, the Veteran's claim was readjudicated in the July 2005, in the November 2005 Statement of the Case and in the February 2007 Supplemental Statement of the Case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. In addition, neither the appellant nor his representative has alleged any prejudicial or harmful error in the notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VA notice has been demonstrated in this case. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the July 2005 rating decision, the November 2005 Statement of the Case and the February 2007 Supplemental Statement of the Case explained the basis for the RO's actions, and provided him with opportunities to submit more evidence. It appears that all obtainable evidence identified by the appellant relative to the service connection claims has been obtained and associated with the claims file. In addition, neither he nor his representative has identified any other available pertinent evidence relating to his claim, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his service connection claim, and to respond to VA notices. With respect to the Dingess requirements, the appellant was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the diabetes claim on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, relevant service treatment records have been associated with the claims file. In addition, the appellant's service personnel records have been included in the evidence of record. Private and VA medical treatment records have also been associated with the claims file. VA also has a duty to provide a medical examination and/or seek a medical opinion when such examination or opinion is necessary to make a decision on the claim. VA considers an examination or opinion necessary to make a decision on the claim if the evidence of record (1) contains competent evidence that the claimant had a disability, or persistent recurring symptoms of disability; (2) indicates the disability or symptoms may have been associated with his military service; and (3) contains insufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the appellant was not afforded an examination in connection with his diabetes claim. Here, however, there is no evidence of record that establishes that the appellant was treated for any diabetes during service and there is no competent medical evidence that indicates that any diabetes-related disorder may be associated with his military service. In fact, the evidence of record does not support the appellant's contention that he served in Vietnam where he was allegedly contaminated by tactical herbicides. The appellant maintains that he currently has diabetes mellitus that is linked to his service, but there is no evidence of record to establish that the appellant has the medical expertise that would render competent his statements as to the proper etiology of any current disorder. The record does not establish that the appellant or his representative has the medical knowledge or expertise to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). These lay statements are insufficient to trigger VA's duty to provide an examination; VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed to service connect a condition, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Merits of the Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain and hearing loss are the sorts of conditions that are observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); see McClain v. Nicholson, 21 Vet. App. 319 (2007). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for chronic disorders when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include Type 2 diabetes. 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. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Secretary of VA, however, has reiterated on several occasions that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See, e.g., 72 Fed. Reg. 32,395 (Jun. 12, 2007). The Board notes that the appellant is currently diagnosed with Type II diabetes mellitus which is one of the diseases noted under 38 C.F.R. § 3.309 as a disease having a positive association with herbicide exposure. The appellant underwent a service separation (Chapter 13) examination in March 1974. In the associated report of medical history, the appellant claimed a host of symptoms and diseases, but denied ever having sugar in his urine. The report of the physical examination indicates that the appellant's endocrine system was found to be clinically normal. In addition, no sugar was found when the appellant's urine was tested. Review of the appellant's post-service medical records reflect that he was documented in VA treatment records as having been assigned a diagnosis of diabetes mellitus in 1999. The appellant alleges that his development of diabetes mellitus resulted from his exposure to herbicidal agents in Vietnam. He has stated that he was stationed in Vietnam between January 1970 and January 1972. He has submitted copies of certificates that reflect the award of the Vietnam Service Medal, the Bronze Star Medal with 'V' device, the Purple Heart Medal, and the Presidential Unit Citation Award. However, these are not signed and he has not explained why, if he were a combat Veteran, he underwent basic training beginning in June 1972. He has also submitted photographs allegedly showing him and his unit in Vietnam, as well as photocopies of Vietnamese currency. In addition, the evidence of record contains third party statements averring that the appellant served in Vietnam. For example, a letter from the appellant's mother (dated in May 1999) states that the appellant was in Vietnam from 1969 to 1972, and that he had been wounded in action. However, review of the appellant's service personnel records reveals a June 1972 DD Form 1584 which delineates the appellant's residences and places of employment for the period from February 1968 to June 1972. This record reflects that the appellant was living and working at various places in Texas until entry into the Army in June 1972. His Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) also does not reflect any service in Vietnam. In addition, the evidence of record includes an August 1999 decision of the Army Board for the Correction of Military Records. The appellant had requested correction of his DD Form 214 to show his dates of service in Vietnam and his award of the Bronze Star Medal with 'V' device and the Purple Heart Medal. The Board for the Correction of Military Records found that there was no evidence that the appellant ever served in Vietnam and that there was no evidence found in his personnel records to support his request which was denied. The Board likewise finds that there is no indication that the appellant served in Vietnam, see 38 C.F.R. § 3.307(a)(6)(iii); therefore, exposure to herbicides is not presumed. As such, the appellant's diabetes mellitus is not presumed to be the result of in-service disease or injury. Review of the appellant's service medical treatment records includes no mention of any diagnosis of an endocrine problem and no mention of any treatment for diabetes during his active service. No endocrine pathology was noted at the time of the appellant's service separation examination in March 1974. Further, the record does not contain medical evidence linking the appellant's diabetes to herbicide exposure. He has only contended that he was exposed to tactical herbicides in Vietnam but, as discussed above, he never was in Vietnam. As noted, direct service connection can be established by showing that a claimed disorder was incurred or aggravated during service, which includes the burden of tracing causation to a condition or event during service. Combee, supra. In order to prevail on direct service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson, 12 Vet. App. at 253; see also Pond v. West, 12 Vet App. 341, 346 (1999). A Veteran may still be entitled to a grant of service connection on a direct basis if it can be shown that a condition had its onset during his military service, or became manifest to a compensable degree within one year of separation from such service. See Combee, supra. As to his claim for diabetes, there is no medical evidence of record to establish that he complained of, or was treated for, any diabetes or other endocrine problem(s) while he was on active duty. There is no evidence of record that the appellant experienced any such diabetes to a compensable degree within one year of his separation from service in May 1974. The claimed diabetes is not documented in the clinical evidence of record until approximately 1999, more than 25 years after the appellant's discharge from service in May 1974. There is no evidence of record that the appellant was clinically noted to have any endocrine condition until many years after service; the diagnosis of diabetes was first documented in approximately 1999. Furthermore, there is no competent medical opinion that etiologically links the diabetes or any current symptoms associated with diabetes to any aspect of the appellant's active military duty. The Board notes that chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology. McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam). Furthermore, there is no medical evidence of record in this case to establish a nexus between any in-service incident and any claimed diabetes-related symptom. Thus, the evidence preponderates against the claim of direct service connection for diabetes mellitus. The evidence does not support a finding of diabetes mellitus to a compensable degree within the first post-service year, and no medical nexus evidence supports a finding of service connection for any such pathology on a presumptive basis. In addition, no probative medical nexus evidence supports a finding of direct service connection for any such pathology. Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for diabetes mellitus. As such, the evidence is insufficient to support a grant of service connection. The Board has considered the appellant's written statements and those of his representative and other third parties submitted in support of his argument that he has diabetes mellitus as a result of his service. To the extent that his statements represent evidence of continuity of symptomatology, without more, the appellant's statements are not competent evidence of a diagnosis of said disorder, nor do they establish a nexus between a medical condition and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board recognizes the arguments advanced by the appellant that he has diabetes mellitus that is related to his military service. It is true that a Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331. However, the appellant does not have the expertise to state that his current pathology is etiologically related to service and a medical opinion would be required. See Davidson, 581 F.3d at 1313. Thus, the Board cannot give decisive probative weight to the opinions of the appellant as to the etiology of any current pathology because he is not qualified to offer such opinions. In addition, the Board notes that the appellant is currently service-connected for a psychiatric disorder, and that his service personnel records document that he exhibited delusions about his service record while on active duty between 1972 and 1974. The appellant reports service in Vietnam, but Army records indicate no such service; this has been found to be the case by the Army Board for the Correction of Military Records. Such inconsistency undermines the veracity of his statements. Regarding issues of credibility, such can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Board finds the appellant's statements about his service in Vietnam to be facially implausible, biased and inconsistent with other evidence of record. In analyzing credibility, the Board is justified in taking into account multiple factors, including possible bias and inconsistencies within the record. Buchanan, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Accordingly, the Board finds the appellant's statements asserting herbicide exposure in Vietnam lack credibility, and those statements are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (Board is entitled to discount credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim of service connection for diabetes mellitus in that the probative medical evidence of record indicates there is no causative or etiologic link between service and said current pathology. As such, the evidence is insufficient to support a grant of service connection for diabetes mellitus. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus, to include as due to exposure to herbicides, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs