Citation Nr: 1323080	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  09-22 511	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II.

2.  Entitlement to service connection for hepatitis.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The appellant is a Veteran who allegedly served on active duty from February 1968 to March 1976.  

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2013.  

In May 2013, the Veteran submitted additional evidence that was not reviewed by the RO.  However, he waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance.  See 38 C.F.R. § 20.1304(c) (2012).  Hence, the additional evidence is being considered.

The issue of entitlement to service connection for diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not currently have hepatitis.  


CONCLUSION OF LAW

The criteria for service connection for hepatitis have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

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, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). 

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). 

In this case, in a January 2007 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA.  The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. 

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his hepatitis claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs 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, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria for service connection, and sought to identify any pertinent evidence not currently associated with the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to this claim. 

The Board notes that the Veteran did not undergo a VA examination germane to his claim on appeal, but also finds that such examination is not required.  The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue.  38 U.S.C.A. § 5103A(d)(2).  If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  In this case, there is no competent indication that the Veteran's claimed disability could be related to service.  Without such an indication, the Board may consider the medical records already in the file without requiring VA examinations.  

The Board notes that the evidence already of record is adequate to allow resolution of the appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  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). 

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Criteria & Analysis

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303 (2012). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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.  Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2012).

The Veteran is seeking service connection for hepatitis.  Service treatment records dated in April 1973 show the Veteran was treated aboard his submarine for what was described as general flu symptoms.  Soon, he developed jaundice and was diagnosed to have infectious mononucleosis.  The next month, when seen by a medical doctor aboard the submarine tender, the Veteran's condition was described as most consistent with "mono with [secondary] icteric hepatitis, though there is no way to exclude infectious hepatitis."  When examined in connection with this discharge from service, no pertinent abnormalities were noted on clinical evaluation.  

There is no post-service diagnosis of hepatitis.  The Veteran has not identified or submitted any medical evidence which shows any current hepatitis.  A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As there is no evidence of a current disability, it is unnecessary for the Board to reach the question of etiology of the claimed hepatitis.  Simply put, service connection is not warranted in the absence of proof of current disability. 

As for the Veteran's statements attributing hepatitis to his period of service, he is competent to describe symptoms of hepatitis.  However, he is not competent to render a diagnosis, given the medical complexity involved with respect to the claimed disability.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

As such, the Board finds that entitlement to service connection for hepatitis is not warranted.  The evidence is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for hepatitis is denied.  


REMAND

In connection with the Veteran's diabetes claim, he completed a VA Form 21-4142, Authorization and Consent to Release Information in May 2013, in order to obtain private treatment records from Dr. Stone through May 7, 2013.  These records should be sought.  

Service treatment records dated in February 1975 reflect that the Veteran was assessed with preclinical diabetes.  Private treatment records from Dr. Crockett dated in October 2006 reflect that the Veteran has diabetes.  As service treatment records reflect preclinical diabetes, and the Veteran has a diagnosis of diabetes, the Board finds that a VA examination is necessary to determine whether his current disability is related to service.  38 C.F.R. § 3.159(c)(4).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following actions:

1.  The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service diabetes mellitus, type II, symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  Attempt to obtain any records of the care the Veteran received from Dr. John Stone, as indicated by the Veteran in May 2013.  In addition, relevant treatment records dating from August 2009 to the present from the Montgomery VA Medical Center should be obtained.

3.  After the above has been completed to the extent possible and any records received associated with the file, schedule the Veteran for a VA examination to determine the current nature of any diabetes mellitus, type II, and to obtain an opinion as to whether it is related to service.  The claims file should be reviewed by the examiner in conjunction with the examination. 

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that diabetes mellitus, type II, is related to service, to include exposure to ionizing radiation and the in-service findings of preclinical diabetes.  In this regard, the examiner should also address the significance of the clinically normal findings on the February 1976 Report of Medical Examination for separation purposes.  

The reasoning for the opinions expressed should be provided.

4.  After completion of the foregoing, readjudicate the claim for service connection for diabetes mellitus, type II.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board, if in order. 

The appellant has the right to submit additional evidence and argument on the matter 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).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs