Citation Nr: 1321981	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  09-42 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for diabetes mellitus, type 2.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel









INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1967 to April 1968.  

This matter is before the Board of Veterans' Appeals on appeal of a rating decision in August 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

Diabetes mellitus, type 2, was not affirmatively shown to have been present during service; diabetes mellitus, type 2, was not manifested to a compensable degree within one year from the date of separation from service; diabetes mellitus, type 2, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. 


CONCLUSION OF LAW

The criteria to establish service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 303, 3.307, 3.309 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 





Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The RO provided pre-adjudication VCAA notice by letter, dated in May 2008.  The content and the timing of the VCAA notice complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374   (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Further VCAA notice is not required.








Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. 

Under VA's duty to assist, a VA examination or VA medical opinion is required when there is competent evidence of a disability or persistent or recurrent symptoms of a disability that may be possibly associated with an established in-service event, injury, or disease, but there is insufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

While there is evidence of current diabetes mellitus, type 2, the is no competent or credible evidence of an established in-service event, namely, exposure to Agent Orange, such that diabetes mellitus may be possibly associated with service.  For this reason, a VA examination or VA medical opinion is not required under the duty to assist. 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 









REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110 (wartime service). 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including diabetes mellitus, if manifest to a compensable degree within the year after active military service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).





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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116.

If a Veteran is presumably exposed to Agent Orange under 38 U.S.C.A. § 1116, there is a presumption of service connection for diabetes mellitus, type 2.  38 C.F.R. §§ 3.307(a) and 3.309(e). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof that Agent Orange actually causes the claimed disability.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).




Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).




Facts and Analysis

The Veteran does not argue and the evidence does not show that diabetes mellitus, type 2, was affirmatively shown to have had onset during service or that symptoms of diabetes mellitus, type 2, were noted in service.  For this reason, 38 C.F.R. §3.303(a) (service connection based on affirmatively showing onset in service) and 38 C.F.R. § 3.303(b) (service connection based on chronicity and continuity of symptomatology) do not apply. 

After service there is no medical evidence that diabetes mellitus, type 2, is related to an injury, disease, or event in service.  38 C.F.R. § 3.303(d).  And as diabetes mellitus was not diagnosed until 2004, presumptive service connection based on the one year presumption for diabetes mellitus following discharge from service in 1968 as a chronic disease is not established. 38 C.F.R. §§ 3.307 and 3.309(a). 

As for the argument advanced by the Veteran's representative, relating diabetes mellitus to the exposure to Agent Orange, the Defense Department Form 214 (DD-214) shows that the Veteran served on active duty from June 1967 to April 1968, during the Vietnam era.  But the DD-214 shows that the Veteran had no foreign or sea service during his period of active military service or any other indication of service in Vietnam by decorations, medals, commendations, citations, or campaign ribbons.  Therefore, the argument of exposure to Agent Orange has no factual merit and the presumption of exposure to Agent Orange and the presumption of service connection due to exposure to Agent Orange for diabetes mellitus, type 2, do not apply. 38 U.S.C.A. § 1116. 

As for the Veteran's lay evidence, the Veteran is competent to describe symptoms of an illness that can be observed and described by a lay person and do not require specialized education, training, or experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). 


The Veteran as lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

Competency is a question of fact, which is to be addressed by the Board. 

Diabetes mellitus, type 2, is not a simple medical condition the Veteran is competent to identify, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception.  And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify diabetes mellitus, type 2.

Where, as here, there is a question of a diagnosis, not capable of lay observation, that is, not a simple medication condition, the Veteran is not competent to state that the diabetes mellitus was present in service or before 2004, when diabetes was first identified by VA.  And the Veteran has not described a contemporaneous medical diagnosis before 2004, or described symptoms in service that later supported a diagnosis of diabetes mellitus, type 2, by a medical professional.  

Also, because diabetes mellitus, type 2, is an internal disease process, which extends beyond an immediately observable cause-and-effect relationship, diabetes mellitus, type 2, is not a type of condition under case law t
hat has been found to be capable of lay observation.  See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (it is generally the province of medical professionals to diagnose or label a mental condition); 



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).  Applying the guidance of current case law, diabetes mellitus, type 2, is more analogous to rheumatic fever or a form of cancer than a broken leg.  For this reason, diabetes mellitus, type 2, is not a type of condition under case law that is capable of lay observation. 

To this extent the Veteran's lay evidence is not competent evidence and the lay evidence is excluded, that is, not admissible as evidence favorable to claim.  

Also, to the extent that it is argued that there is an association between the current diabetes mellitus, type 2, and exposure to Agent Orange, as there is no credible evidence of exposure to Agent Orange, the Board rejects the argument as incredible.   

For the reasons stated, the preponderance of the evidence is against the claim of service connection for diabetes mellitus, type 2, and the benefit of the doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for diabetes mellitus, type 2, is denied.  



______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs