Citation Nr: 1322043	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  07-34 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The Veteran had active service from June 1983 to October 1993 and October 1, 2001 to October 5, 2001, with additional service in the National Guard.  

This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim of entitlement to service connection for diabetes mellitus.  He perfected a timely appeal to that decision.  

The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in November 2008.  A written transcript of this hearing was prepared and incorporated into the evidence of record.  

In January 2009, the Board remanded the case for additional development.  Following the requested development, a supplemental statement of the case (SSOC) was issued in September 2009.  In July 2011, the Board again remanded the case for further evidentiary development.  The Appeals Management Center (AMC) completed the requested development and issued another SSOC in May 2012.  Review of the record reflects substantial compliance with the Board's Remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

A review of the Virtual VA paperless claims processing system reveals that an informal hearing presentation from the Veteran's service representative, dated June 19, 2013 has been associated with his paperless claims file.  


FINDING OF FACT

The Veteran's type II diabetes mellitus did not have its onset in service or within a year of service and there is no causal link between his current condition and any incident of active service.  

CONCLUSION OF LAW

The Veteran does not have diabetes mellitus that is the result of disease or injury incurred in or aggravated by active military service; nor may it be presumed to have been incurred during active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1153, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  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, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  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 held that VCAA notice should be provided to a claimant before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In this case, VA satisfied its duty to notify by means of a letter dated in January 2006 from the RO to the Veteran, which was issued prior to the RO decision in September 2006.  Additional letters were issued in February 2009, August 2011, and October 2011.  Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  

The Board finds that the content of the above-noted letters provided to the Veteran 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.  

Furthermore, the matter has been remanded back to the RO for additional development of the record four times in order to attempt to obtain evidence to support the Veteran's claim.  In those remands, the Veteran was further advised of why his claim had not yet been substantiated, and what evidence was necessary to support his claim.  VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and obtained personnel records.  In addition, the Veteran had the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran claims file; and the Veteran has not contended otherwise.  

Although the Veteran was not afforded a VA examination to determine the likely etiology of the diabetes, no such examination is necessary in this case because there is no evidence that the Veteran developed diabetes mellitus during active service, within the one year presumptive period following active duty, or during a period of ACDUTRA.  In disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The standard set forth in McLendon is not met in this case; thus, a VA examination is not required.   

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.  

II.  Factual background.

The Veteran's service treatment records (STRs) for his period of active duty service that ended in October 1993 include an August 1982 enlistment examination report that shows that clinical evaluation of the endocrine system was normal.  At the time of his separation examination in August 1993, clinical evaluation of the endocrine system was normal.  The records from the Veteran's first period of active duty were entirely negative for any complaints, findings or diagnosis relating to diabetes mellitus.  

In a statement in support of claim (VA Form 21-4138), received in January 2006, the Veteran indicated that he was diagnosed with type II diabetes while on active duty with the United States Air Force.  The Veteran reported that he was diagnosed with diabetes in May 2001 while assigned to the 125th Fighter wing, stationed at Jacksonville, Florida; he was subsequently discharged via medical evaluation board in July 2005.  

Submitted in support of the Veteran's claim were private treatment reports from several providers, dated from October 2001 through December 2005, reflecting ongoing treatment for type II diabetes.  Among these records is a statement from Dr. Paul Abram Graham, dated October 11, 2001, indicating that the Veteran was recently diagnosed with type II diabetes.  Dr. Graham stated that the Veteran's diabetic control was very stable on oral medications; he had no obvious complications of the diabetes.  On examination in December 2003, the Veteran was diagnosed with diabetes, well-controlled.  A narrative summary from the Florida Air National Guard, dated in June 2005, reflects that the Veteran was found to be disqualified for worldwide duty due to type II diabetes with hypoglycemic.  

At his personal hearing in November 2008, the Veteran reported that the first time he was diagnosed with diabetes was in May 2001, during a routine physical in the National Guard; he was subsequently referred to a private doctor.  The Veteran indicated that he was reactivated into active duty in October 2001; however, he was medically discharged on October 5, 2001 because of the diabetes.  

Received in August 2011 were documents from Florida Air National Guard, showing that the Veteran served with the Air National Guard from September 1996 through November 2005, with a period of active duty from October 1, 2001 to October 5, 2001.  A special order, dated in November 2005, indicates that the Veteran was honorably discharged from the Florida Air National Guard and as a Reserve of the Air Force effective November 15, 2005.  The records indicate that the Veteran was determined to be medically disqualified for worldwide duty.  

Received in August 2011 were additional treatment records from the Indian River Medical Center.  During a clinical visit in April 2011, the Veteran was informed that his examination showed that he had diabetes.  The examiner stated that the cause of diabetes was unknown, but the tendency toward having it is partly inherited.  

III.  Legal Analysis.

Service connection may be established 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.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay 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).  

Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  In other words, with respect to Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training. Service connection is generally not legally merited when a disability incurred on inactive duty training results from a disease process.  See Brooks v. Brown, 5 Vet. App. 484, 487 (1993).  

ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23) (A).  Reserves include the National Guard.  38 U.S.C.A. § 101(26), (27).  

Certain evidentiary presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities.  38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309.  However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70  , for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.").  

Initially, the Board acknowledges that the competent medical evidence does indicate the Veteran has been diagnosed with diabetes mellitus.  Nevertheless, this claim must be denied as the preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed diabetes mellitus as a result of his military service.  

The Board acknowledges that the Veteran, as a lay person, is competent to describe his visible symptomatology.  However, competent medical evidence is required to determine the specific cause of the claimed disability as it involves complex medical issue.  Consequently, the claimed disability is not subject to lay diagnosis and/or etiology pursuant to Jandreau, supra.  Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions concerning the etiology of his diabetes mellitus cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a) (1).  

As previously noted, to warrant service connection for a disease incurred during service in the National Guard, that disease must have been incurred during a period of ACDUTRA.  According to the documentation in the claims file, there is no indication that the Veteran's diabetes was incurred during a period of ACDUTRA. As noted above, the records obtained pursuant to the most recent remand show that the Veteran served with the Florida Air National Guard from September 1996 through November 2005, but was only on active duty during the period from October 1, 2001 to October 5, 2001.  The medical records indicate that the Veteran's diabetes mellitus was likely discovered in May 2001.  As such, this did not occur on a period of ACDUTRA. 

Likewise, diabetes mellitus was not incurred during a period of active duty and diabetes was not diagnosed within one year after his discharge from active duty.  In addition, the evidence does not show that diabetes was incurred or aggravated during a period of ACDUTRA.  Moreover, no competent medical opinion is of record which relates the Veteran's diabetes mellitus to active service.  Furthermore, the Board reiterates that the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 generally do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training.  

For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to this claim must be denied.  

ORDER

Service connection for type 2 diabetes is denied.  


____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs