Citation Nr: 1318558 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-26 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for hypertensive heart disease. 4. Entitlement to service connection for urinary tract infection. WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and an interpreter ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran had active service from June 1946 to April 1949. These matters come before the Board of Veterans' Appeal (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In April 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The case was previously remanded for further development by the Board in July 2011 for further development. For the reasons discussed below, the Board finds that its directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has diabetes mellitus, casually related to, or aggravated by, service. 2. The Veteran is less than credible with regard to the reported onset of diabetes mellitus since service. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has hypertension casually related to active service. 4. The Veteran is less than credible with regard to the reported onset of hypertension since service. 5. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has hypertensive heart disease, casually related to, or aggravated by, service. 6. The Veteran is less than credible with regard to the reported onset of hypertensive heart disease since service. 7. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has urinary tract infection, casually related to, or aggravated by, service. 8. The Veteran is less than credible with regard to the reported onset of urinary tract infection since service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 3. Hypertensive heart disease was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 4. Urinary tract infection was not incurred in or aggravated by active service. 38 U.S.C.A. §§1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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 his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in April 2009, April 2011 and December 2011, VA informed the Veteran of what evidence was required to substantiate his claims for service connection, and his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. In this regard, the Board notes that although the April 2009 VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claims, it incorrectly addressed the letter to the Veteran's spouse and requested evidence relating the Veteran's death to his service. However, corrected VCAA letter was provided in December 2011, and the matters were thereafter readjudicated in a March 2013 supplemental statement of the case (SSOC). The content of this notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. Consequently, any earlier notice defect is cured, and the Veteran is not prejudiced by such defect. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (a VCAA timing defect is cured by the issuance of fully compliant notification followed by readjudication of the claim). Additionally, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). As such, the Board finds that the VCAA notice requirements have been met in this case. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. In addition, the duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records are determined to be unavailable in this case. As such, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing a claim, and to explain its decision when the Veteran's medical records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In April 2009, the RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC). The NPRC responded that the record was fire-related and there were no service treatment records or Surgeon General's Office (SGO) records. In April 2009, the RO requested the Veteran to complete and return NA Form 13055, Request for Information Needed to Reconstruct Medical Data, which he submitted in the same month. In the NA Form 13055, the Veteran indicated that he was treated for hypertension from January to February 1947 while he was assigned to the 156th Ord TR. Co. in Okinawa, Japan. The RO sent this information to the NPRC in June 2009. In July 2009, the NPRC reported that the allegation had been investigated but that "[a] search of the M/R from the 156th TR Co Dispensary failed to locate the [Veteran]. Sick reports from the 156th Ord TR Co. skipped from December 1945 to September 1947." Consequently, in August 2009, the RO made a formal finding that the Veteran's service treatment records were unavailable. In an August 2009 letter, the Veteran was properly notified that the records could not be located and any service treatment records in his possession was requested. The Veteran was also informed of the types of evidence that could substitute for service treatment records. See 38 C.F.R. § 3.159(e). However, no additional information was submitted by the Veteran. Pursuant to the Board's July 2011 remand, the RO also attempted to obtain the Veteran's treatment records from Dr. Alfredo Bisnar of Capiz Emmanuel Hospital in Roxas City, the Republic of the Philippines, dated January 1990 and February 1998. In December 2011, the RO requested the Veteran to provide the copies of these records or complete a VA Form 21-4142, Authorization for Release of Information, for Dr. A.B. so that the RO can request these records from the said facility or Dr. B. However, the record reflects that to date, the Veteran has not responded to such request. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board concludes that there has been substantial compliance with its July 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Although no VA examination has been obtained in conjunction with the Veteran's service connection claims, the Board finds that it was not required. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, as will be discussed in more details below, there is no competent clinical evidence that the Veteran currently has diabetes mellitus, hypertension, hypertensive heart disease or urinary tract infection. Affording him every possible consideration, the Board could accept his statements and medical certificates regarding treatments for the claimed conditions as indicative of current disability. However, there is no medical, or credible lay, evidence of record, that the claimed conditions were incurred or caused by active service. Hence, in the absence of any evidence of an in-service disease or injury, the Board is not obligated to provide the Veteran with an examination or obtain an opinion on these matters. Here, the Veteran has merely filed claims for service connection, without any supporting allegation or explanation. The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) focused on the elements necessary to substantiate the claims. The Veteran was assisted at the hearing by an interpreter, and he was asked questions to ascertain the onset of symptoms, and any nexus between service and a current disability. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran. Additional records were identified by the record and the RO attempted to obtain private treatment records from 1990 and 1998 pursuant to the Board's July 2011 remand. The Veteran also indicated that prior to this time, he had been treated for the claimed disabilities, but the records were no longer available. Thus, to the extent it was possible, the submission of overlooked evidence was suggested by the Board. Furthermore, the Veteran did not suggest any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Law and Analysis 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. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including arthritis, and malignant tumors, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 would also include 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 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 rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") The Veteran claims that he has non-insulin-dependent diabetes mellitus, hypertension, hypertensive heart disease and urinary tract infection as a result of active service. As noted above, an essential element of a claim for service connection is evidence of a current disability. Concerning this, the Veteran is competent to report observable symptoms associated with the claimed conditions; however, he has not been shown to possess the experience, training, or education necessary to diagnose these disabilities. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr, 21 Vet App at 309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board acknowledges that the claims file includes a January 2009 Medical Certificate from Dr. A.B. indicating that Veteran was treated and/or hospitalized for hypertensive cardiovascular disease from January 20, 1990 to January 21, 1990. Another January 2009 Medical Certificate from the same physician indicates that Veteran was treated and/or hospitalized for urinary tract infection, diabetes mellitus, and hypertensive cardiovascular disease from February 25, 1998 to February 28, 1998. However, Dr. A.B. did not provide any clinical records from the Veteran's treatment. Further, the claims file does not include more contemporaneous medical records. As such, the Board finds it questionable whether current disabilities of diabetes, hypertension, hypertensive heart disease and urinary tract infection have been established. Even assuming that the Veteran currently has diabetes, hypertension, hypertensive heart disease and urinary tract infection, the evidence does not support a finding that any of these disabilities is causally related to active service. The earliest evidence of these disabilities is in 1990 or 1998, approximately 40 to 50 years after the Veteran separated from active service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds that the Veteran is less than credible with regard to any statements as to continuity of symptomatology since service. The Veteran testified at the April 2011 Board hearing that while in service, he was seen at the dispensary for treatment of diabetes, high blood pressure and urinary tract infection. He specifically indicated that he was treated for urinary tract infection while stationed in Okinawa, Japan. However, in his VA Form 21-526, Application for Compensation and/or Pension, which the Veteran submitted in March 2009, he indicated that his hypertension and hypertensive cardiovascular disease began in 1990, and that his diabetes, type 2, began in 1951, which is approximately two years after service separation. In the NA Form 13055, dated April 2009, the Veteran indicated that he was treated for hypertension from January to February 1947 while he was assigned to the 156th Ord TR. Co. in Okinawa, Japan. Additionally, in August 2011, the Veteran submitted a duplicate VA Form 21-526, Application for Compensation and/or Pension, in which he indicated that his hypertensive cardiovascular disease began in January 1990, and that his urinary tract infection, diabetes, and hypertensive cardiovascular disease began in February 1998, which coincides with the times when he was treated for these condition at the Capiz Emmanuel Hospital. The Board acknowledges that the absence of any corroborating medical evidence supporting his assertions, in and of itself, does not render his statements incredible, but that such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). Significantly, the Veteran's statements regarding the onset of the claimed disabilities, are inconsistent with his other statements throughout the record, and therefore they are not credible. The Board has also considered that it has been more than 60 years since the Veteran's service and that memories may fade over time. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The Board notes that continuity of symptoms, as an avenue to achieve service connection, is warranted for chronic diseases listed in 38 C.F.R. § 3.309, such as diabetes mellitus, hypertension, and cardiovascular-renal disease. Also see Walker, 708 F.3d at 1331. However, presumption of service incurrence does not apply in this case, because the evidence of record fails to establish that the Veteran's diabetes mellitus, hypertension, or cardiovascular-renal disease became manifest to a compensable degree within the first year from date of termination of such service. 38 C.F.R. § 3.307. In reaching this decision, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The preponderance of the evidence is against the claims. ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for hypertensive heart disease is denied. Entitlement to service connection for urinary tract infection is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs