Citation Nr: 1323100 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-22 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in July 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The case is now under the jurisdiction of the RO in Indianapolis, Indiana. FINDING OF FACT Diabetes mellitus was not affirmatively shown by competent evidence to have been present during service; diabetes mellitus, as a chronic disease, was not manifested to a compensable degree within one year from the date of separation from service; and diabetes (or diabetes mellitus), first diagnosed after service beyond the one-year presumptive period for a chronic disease, is not shown to otherwise be related to an injury, disease, or event in service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service; and diabetes mellitus, as a chronic disease may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1131, 5107(b) (West 2002 & 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified, as part of a February 2002 letter, as to how VA would assist in developing his claim, and his and VA's obligations in providing evidence for consideration. The Veteran was later notified of the complete contents of 38 C.F.R. § 3.159 as part of a May 2009 statement of the case (SOC). No pertinent evidence was associated with the record after this time. Nevertheless, the Board finds that no prejudice has resulted from any defective timing of this notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. The Veteran in this case did not receive notification pertaining to the findings of this case. However, as the Board herein concludes that the preponderance of the evidence is against the Veteran's service connection claim, any questions as to the assignment of disability ratings and effective dates are rendered moot. Therefore, the Board finds that the Veteran was provided with all necessary notice under notice afforded him prior to the initial adjudication of his claim. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records and providing an examination. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining his service treatment records and post-service VA medical treatment records. On the claim of service connection for diabetes mellitus, a VA examination or VA medical opinion is not needed to decide the claim because there is no competent or credible evidence that the claimed disability in associated with an in-service injury, disease, or event. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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 concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. As part of a VA Form 21-526, received in November 2001, the Veteran sought service connection for diabetes. He essentially contends that, in essence, his development of diabetes is related to his military service. He alleges that in the course of his service separation physical examination urine testing demonstrated the presence of albumin, which he asserted is a precursor to diabetes. Id. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of diabetes. Review of his July 1963 service separation examination shows no findings related to albumin. In fact, urine testing was specifically noted to be "Neg" (negative) for albumin and for sugar. After service, VA medical records show that a September 2002 VA general medical telephone triage record shows that the Veteran's blood sugar levels were being monitored. In November 2002 VA psychiatric assessment record reveals that diabetes was listed among the Veteran's current medical problems. Diabetes (and diabetes mellitus) was later diagnosed, shown as part of various VA outpatient medical records, in March 2003, February 2004, August 2004, September 2005, and October 2008. 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. § 1131. Generally, to establish entitlement (service connection) for VA disability compensation, 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. 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. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Diabetes mellitus is listed in 38 C.F.R. § 3.309(a). If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as diabetes mellitus, if the disease became manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Here, diabetes mellitus was not diagnosed during this presumptive period. Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan; Washington, at 368-69. The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); 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 Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. 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). 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). 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 provisions 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 weight and credibility, which is a factual determination 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 (Fed. Cir. 2007). Also the Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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). Analysis Based on the service treatment records alone, diabetes (or diabetes mellitus) was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. Also, the Veteran does not argue and there is no evidence either contemporaneous with or after service that diabetes was noted in service, that is, observed, and the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. On the question of whether service connection may be granted on the basis that the claimed disability was first diagnosed after service, considering all the evidence, including that during and after service, under 38 C.F.R. § 3.303(d), the Veteran does not argue in his pleadings, namely, his application, notice of disagreement, or substantive appeal and the record does not contain competent evidence, lay or medical, that links diabetes mellitus to an injury, disease, or event in service. While such belief might be inferred from his assertion that albumin was found in his urine at the time of his service separation, this, as noted above, is not true. In any event the Veteran does not indicate that he has any medical or chemical training that would make him competent to associate even a hypothetical finding of albumin with a later-diagnosed diabetes disorder. In the absence of competent evidence suggesting such an association, and in the absence of credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claim on the theory of direct service connection under 38 C.F.R. § 3.303(d), by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is the Veteran's general evidentiary burden to establish all elements of his claim, including the nexus requirement under 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 182, 1287 (2009). In the absence of any such competent evidence, the preponderance of the evidence is against the claim that diabetes was due to an injury, disease, or event in service under 38 C.F.R. § 3.303(d), or under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) and (b) as previously discussed. After service, diabetes was first diagnosed in 2002. This is 39 years after service, well beyond the one-year presumptive period following separation from service in 1963 for diabetes mellitus, as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307, 3.309. Accordingly, a preponderance of the evidence is against service connection for diabetes mellitus on the basis of any of the above theories. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs