Citation Nr: 1309664 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-16 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to January 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In a February 2009 rating decision, the RO denied entitlement to service connection for diabetes mellitus, type II (adult-onset). In a June 2011 decision, the Board denied the Veteran's claim for diabetes mellitus. In March 2012, the Board vacated the June 22, 2011 decision and remanded the issue for additional development. In a December 2011 rating decision, the RO denied entitlement to service connection for asthma and for COPD. The issues of entitlement to service connection for asthma and for COPD is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. A clear preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in September 2008, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claim and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the September 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Service treatment records and post-service medical records have been associated with the claims file. This issue was remanded in March 2012. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in order for the agency of original jurisdiction (AOJ) in order to obtain private medical records referred to in an earlier RO decision that were not part of the claims file and, if these records were not sufficient to decide the Veteran's claim, to provide him with a VA examination to determine whether he had a diagnosis of diabetes mellitus, type II. The relevant private medical records were added to the claims file. As these did not provide the evidence necessary to decide the claim, the Veteran was provided with a VA examination in December 2012. The Board finds that this VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection - Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See 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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In this context, "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Review of the Veteran's service treatment records shows that he was stationed in the Republic of Viet Nam and is presumed to have been exposed to herbicides. The Veteran contends that he has elevated blood sugars and diabetes mellitus, type II, as a result of exposure to Agent Orange during his active duty in Vietnam. Service treatment records are negative for treatment for diabetes, and the Veteran's urinalysis at his November 1968 discharge examination was normal. Post-service medical evidence includes findings of elevated blood glucose levels, or hyperglycemia. VA medical records indicate that the Veteran's blood glucose was elevated in years 2006-2009, although all blood glucose readings were under 126 mg/dL. According to VA medical records, the American Diabetes Association defines "impaired fasting glucose" as 100-125 mg/dL, and states that these individuals are "at increased risk for type 2 diabetes"; however, such individuals cannot be said to have diabetes. In January 2008, the Veteran reported that he had diabetes mellitus, which he controlled with diet. He indicated that he did not take medication and did not check his blood sugar. There is no medical evidence or opinions in the claims file reflecting this diagnosis. VA medical records beginning in March 2009 reflect that the Veteran had impaired fasting glucose, but do not show a diagnosis of diabetes mellitus, type II. An April 2010 statement from the Veteran private physician, F.H.R., M.D., reflects the finding that the Veteran "does not meet the criteria for Type 2 Diabetes Mellitus but he does have hyperglycemia." Medical records from this private physician reflecting treatment from April 1993 through April 2012 do, in fact, reflect elevated glucose levels and that the Veteran was told he was at risk for diabetes, but none of these records reflect a diagnosis of diabetes mellitus, type II. The Veteran was afforded a VA examination in December 2012. The examiner reported that the Veteran's most recent A1C, measured in March 2012, was 6.4 percent and his most recent fasting plasma glucose, measured in April 2012, was 112 mg/dL. The examiner reviewed the relevant medical records in the claims file and noted that the Veteran's record contained multiple bedside fingerstick glucose readings. Several of these were greater than 126; however, these were nonfasting values and the Veteran was on steroids for his breathing while he was hospitalized for shortness of breath. The Veteran received a discharge sheet from this hospitalization that did not include any instructions for blood sugar control. The examiner acknowledged that the Veteran's medical records were negative for a diagnosis of diabetes mellitus, except for several pulmonary consultation notes that listed diabetes under the Veteran supplied past medical history section. However, the examiner concluded that there was no objective evidence for a diagnosis of diabetes mellitus, and diagnosed impaired fasting glucose. Based on the evidence in the record, service connection is not warranted for diabetes mellitus, type II. While the medical evidence in the record shows that the Veteran has elevated blood glucose levels, or hyperglycemia, the Board notes that hyperglycemia represents a laboratory finding, and is not a disability for VA purposes. See e.g., 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities; they are, therefore, not disabling entities for which compensation is payable under VA's rating schedule). The record does not contain a diagnosis of diabetes mellitus, type II made by a medical provider. While the Veteran himself has reported that he has diabetes, there is nothing in the record to suggest the he possesses the requisite medical expertise to make such a complex determination. Even medical professionals require diagnostic aids, including fasting blood glucose tests, to identify diabetes mellitus; it is not a disease readily discernible by a lay person. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As there is no current diagnosis of diabetes mellitus, type II provided from a competent medical examiner, service connection cannot be granted. Brammer. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for diabetes mellitus, type II. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for diabetes mellitus is denied. REMAND In a December 2011 rating decision, the RO denied entitlement to service connection for asthma and COPD. In January 2012, the Veteran submitted a timely notice of disagreement with the decision. This matter must be returned to the RO for appropriate consideration and issuance of a statement of the case with regard to these issues. Manlincon v. West, 12, Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The AMC/RO should issue a statement of the case with respect to the issues of entitlement to service connection for asthma and COPD. The appellant should be apprised of his right to submit a substantive appeal and to have his claims reviewed by the Board. The AMC/RO should allow the appellant the requisite period of time for a response. If a timely substantive appeal is filed with respect to this issue, the case must be returned to the Board for further appellate consideration of this issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs