Citation Nr: 1323827 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-49 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a heel spur. 2. Entitlement to service connection for anemia. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for Graves' disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active duty from November 1981 to October 1990 and from February to June 2003. She also had a period of reserve service, from December 1995 to August 2006, which included periods of active duty training (ACDUTRA) and/or inactive duty training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran testified before a decision review officer at the RO. A transcript of the hearing is associated with the claims file. The Veteran also requested a hearing before the Board, which was scheduled in May 2011. However, in a May 2011 written statement, the Veteran cancelled this hearing request and asked that her claim be forward to the Board. The Board finds that all due process has been met with regard to the Veteran's hearing request. A review of the Veteran's virtual claims file reveals that it contains only evidence that is duplicative of that already contained in the paper claims file or irrelevant to the matters on appeal. While the Veteran also perfected an appeal of entitlement to service connection for a psychiatric disorder, in an October 2010 rating decision, the RO granted entitlement to service connection for posttraumatic stress disorder with depression, representing a full grant of the benefit sought on appeal. Therefore, it is not before the Board. The issues of entitlement to service connection for a heel spur and Graves' disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Anemia did not manifest in service and is not attributable to service, ACDUTRA or INACDUTRA. 2. Diabetes mellitus did not manifest in service, is unrelated to service, ACDUTRA or INACDUTRA, and was not manifested within one year of separation from service. CONCLUSIONS OF LAW 1. Anemia was not incurred in or aggravated by service, ACDUTRA, or INADCUTRA. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Diabetes mellitus was not incurred in or aggravated by service, ACDUTRA, or INACDUTRA and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a January 2008 letter, prior to the initial adjudication of the claims in September 2008. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran relative to the claims decided herein have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor the representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has not been afforded a VA examination on the matters decided herein. However, the Board finds that one is not necessary. The service treatment records from the Veteran's periods of active duty or active duty for training contain no evidence of treatment or complaints related to anemia or diabetes mellitus. Furthermore, the Board finds, as is explained in more detail below, that the Veteran's statements asserting that she manifested such symptoms during service are not credible. There is no other evidence of record suggesting that there is an in-service event, injury, or disease that is related to anemia or diabetes mellitus. As such, the duty to assist does not include obtaining an opinion in this case. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). During the May 2010 RO hearing, the Hearing Officer informed the appellant that it was incumbent upon her to submit any potentially relevant evidence in her possession in support of her claim. The Veteran was informed of what the evidence needed to substantiate her claims. This action provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, supplemented VA's compliance with the VCAA, and complied with 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Applicable Law and Regulations As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that she engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities including diabetes mellitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 diabetes mellitus is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a), (d). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 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 Veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 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." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. As noted above, while certain chronic diseases may also be established on a presumptive basis by showing that the disease manifested itself to a compensable degree within one year from the date of separation from service, generally, this presumption does not apply to periods of ACDUTRA and INACDUTRA. See 38 U.S.C.A. § 1112. Therefore, with respect to whether any chronic disability manifested within one year of separation, this presumption does not apply to the Veteran's periods of ACDUTRA or INACDUTRA (unless the service became active service and the minimum duty time were met). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Anemia An April 1981 service entrance examination shows that the Veteran's relevant examination was normal, and she denied a history of all relevant symptomatology. A March 1990 examination was also normal for all relevant systems. A July 1990 report of medical history indicates that the Veteran denied a history of dizziness and fainting spells. A May 1995 report of medical history indicates that the Veteran denied a history of dizziness and fainting spells. On examination, all relevant systems were normal. A May 2000 report of medical history indicates that the Veteran denied a history of dizziness and fainting spells. On examination, all relevant systems were normal. A 2003 post-deployment medical assessment shows that the Veteran denied dizziness, fainting spells, weakness, or fatigue. An October 2005 service record shows that the Veteran had seen her private doctor last week and had been diagnosed as being anemic. A January 2006 private treatment record reveals an assessment of microcytic anemia. A November 2006 private treatment record shows a prior history of microcytic anemia. During her May 2010 RO hearing, the Veteran indicated that she was tired during service and went to sick call, but no lab tests were conducted. She related her anemia to tiredness and fatigue during service and thinks that it may have been diagnosed during service. The Veteran believes that her doctors failed in not diagnosing her earlier. After a review of the record, the Board finds that service connection for anemia is not warranted. A current diagnosis of this disability is of record. However, the Board finds that the competent evidence shows that anemia was not diagnosed, noted or identified during a period of active duty or ACDUTRA. The Veteran testified that she sought treatment during service for fatigue but was unsure whether anemia was diagnosed at that time. The service records show that she consistently denied a history of dizziness, fainting spells, and fatigue until 2003, when she returned from deployment. These contemporaneous records, in which the Veteran reports her medical history in a sworn, signed document are more probative than the Veteran's recent statements regarding what she remembers about the onset of fatigue during service. Therefore, as to whether anemia was manifested or had its onset during a period of active duty, the Board finds that the credible and most probative evidence of record shows that neither the diagnosis nor the symptomatology were manifested during that time period. Furthermore, the medical evidence of record shows that the Veteran reported on a service record in October 2005 that she had been diagnosed as having anemia the week before by her private physician. She does not contend that this occurred during a period of ACDUTRA, and there is no evidence in the record that the Veteran was serving a period of ACDUTRA when she was diagnosed as having anemia. Since anemia is a disease and not an injury, service connection is not warranted if it is manifested during a period of INACDUTRA, although there is no evidence suggesting that this is the case. The Veteran is certainly competent to provide evidence of that which she experiences, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In many cases, a layperson is also competent to provide an opinion regarding diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, in this case, the Board has found that the Veteran's report of fatigue during service, which she relates to a subsequent diagnosis of anemia, is not credible. Nevertheless, the determination of whether feelings of fatigue and tiredness amount to a diagnosis of anemia is one that requires some degree of medical training or testing. "Anemia" is defined as "a reduction below normal in the concentration of erythrocytes or hemoglobin in the blood." Dorland's Illustrated Medical Dictionary 79 (31st. Ed. 2007). See, the non-precedent decision of Johnson v. Shinseki, citing Dorland's. Therefore, it involves an internal process that is not observable to a layperson. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, even if the Board found that the Veteran's complaints of fatigue during service were credible, her opinion that this meant she had manifested anemia at that time is not competent. The most probative evidence of record, then, shows that the Veteran did not manifest anemia during a period of active duty or ACDUTRA. As such, the evidence preponderates against her claim, and it must be denied. Diabetes Mellitus An April 1981 service entrance examination shows that the Veteran's endocrine system was normal, and she denied a history of all relevant symptomatology. Service records dated in October 1987 and March 1989 show that the Veteran denied a history of diabetes mellitus. A March 1990 endocrine examination was also normal. A July 1990 report of medical history indicates that the Veteran denied a history of frequent urination and diabetes mellitus. A May 1995 report of medical history indicates that the Veteran denied a history of frequent urination. On examination, the endocrine system was normal. A May 1995 report of a blood test shows that the Veteran's glucose was 85, which was in the desirable range. A September 1997 service record shows that the Veteran was pregnant and needed to determine whether diabetes mellitus was pregnancy related or permanent. A November 1997 service record indicates that the Veteran was not diabetic. A May 2000 report of medical history indicates that the Veteran denied a history of frequent urination. On examination, the endocrine system was normal. A May 2000 service record of a blood test shows that the Veteran's hemoglobin was below the normal range. A January 2002 private treatment record shows that the Veteran was seeking information as to whether she had gestational diabetes. Following tests, it was determined that the assessment was gestational diabetes mellitus. A February 2003 service record shows that the Veteran reported having had gestational diabetes five years ago. A March 2004 service record indicates that a glucose test result was 101, and the normal range was 65-115. A January 2006 private medical record indicates that the Veteran called stating that her employer sent her to the emergency room for a blood sugar of 697. Uncontrolled diabetes mellitus type 2 was noted as the assessment. It was also noted that the Veteran had a history of gestational diabetes. A November 2006 private treatment record shows a prior diagnosis of diabetes mellitus. During her March 2010 RO hearing, the Veteran indicated that she did not recall whether she had high glucose during service. However, it was elevated when she sought treatment from her private doctor. Her diagnosis was three or four years ago. The Veteran believes that her doctors failed in not diagnosing her earlier. Based on a review of the record, the Board finds that service connection for diabetes mellitus is not warranted. First, with regard to whether this chronic disease warrants service connection under the provisions of 38 C.F.R. § 3.303(b) related to active service, the Board finds that diabetes mellitus was not shown or "noted" in service, and there is not a combination of manifestations sufficient to identify the disease entity during either of the Veteran's periods of active duty or within one year of separation. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. Since there is nothing in the service records attributable to diabetes mellitus, chronicity can be legitimately questioned. The record taken as a whole weighs against the finding of a showing of a resulting chronic disease during service. Importantly, glucose testing in March 2004 was in the normal range. In addition, the Veteran does not allege that symptoms associated with her diabetes mellitus began during service or within one year and continued since that time. Instead, she testified in March 2010 that she did not recall if she had high glucose during service, but it was elevated when she saw her private physician and was diagnosed three or four years ago. In the absence of notations during service that suggest manifestations sufficient to identify the disease entity, service connection under 38 C.F.R. § 3.303(b) may not be awarded. With regard to determining whether the claim may be granted under 38 C.F.R. § 3.303(a), none of the lay or medical evidence of record shows that diabetes mellitus was diagnosed during a period of active duty. As noted above, the Veteran indicates that it was not diagnosed until approximately 2006 or 2007, which is more than two years after separation from her second period of active duty. The Board notes that the Veteran is shown to have had gestational diabetes during pregnancies in September 1997 and January 2002. However, this is during the Veteran's period of reserve service, and she has not contended that either of these diagnoses occurred during a period of ACDUTRA. None of the other evidence of record suggests that this is the case. Furthermore, gestational diabetes is distinct from diabetes mellitus. See Dorland's Medical Dictionary, 506 (31st ed. 2007) (defining both type 2 diabetes mellitus and gestational diabetes). It is a disorder that occurs during pregnancy. Id. Nevertheless, there is no lay or medical evidence suggesting that diabetes mellitus began during active service or a period of ACDUTRA. Since diabetes mellitus is a disease and not an injury, it cannot be granted service connection based upon a period of INACDUTRA. To the extent that the Veteran opines that her diabetes mellitus began during or is due to service, she is competent to provide evidence regarding anything she observes, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As noted above, in many cases, a layperson is also competent to provide an opinion regarding diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, here, the Veteran does not give an opinion that her diabetes mellitus began during a period of active duty or within one year of separation. She testified in March 2010 that she did not know if she had elevated glucose during service and indicated that her diabetes was not diagnosed until 2004 or 2005. To the extent that the Veteran alleges that her diabetes mellitus should have been diagnosed earlier, she does not specify when she believes she first manifested this disability, and by indicating that she did not know if she had elevated glucose during service, she acknowledged that a diagnosis of diabetes mellitus depends on specific laboratory testing and is not the sort of diagnosis that a layperson without specific training can competently provide. Jandreau, 492 F.3d at 1377, n. 4. The Board finds that the Veteran's statements regarding her diabetes mellitus are credible. Nevertheless, she does not specifically allege that this disorder had its onset during a period of active duty or ACDUTRA. As such, there is no competent evidence supporting the Veteran's claim, the evidence against outweighs the evidence in favor, and it must be denied. ORDER Service connection for anemia is denied. Service connection for diabetes mellitus is denied. REMAND The Board finds that the claims remaining on appeal require further development. With regard to the claim of entitlement to service connection for a heel spur, the service records show that the Veteran was seen in January 1989 for a two-day history of pain and was diagnosed as having left foot plantar fasciitis. A September 2005 private report of an x-ray shows that the Veteran complained of left heel pain. The impression was that there was no fracture or dislocation but there was plantar calcaneal bony spurring that may be associated with plantar fasciitis. Clinical correlation was suggested. As such, the Board concludes that a remand is warranted to afford the Veteran a VA examination and opinion to determine whether the currently diagnosed heel spur is related to service. Regarding the claim of entitlement to service connection for Graves' disease, the service records show that the Veteran was seen for evidence of left thyroid nodule and enlargement. She underwent a thyroid uptake and scan in September 1983. The result was normal with no evidence of hot or cold nodules. Given this history, the Board finds that a remand is warranted to afford the Veteran a VA examination and opinion to determine whether the currently diagnosed Graves' disease is related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine whether her currently diagnosed heel spur is related to service, to include a finding in January 1989 of left foot plantar fasciitis. A rationale should be provided. 2. Schedule the Veteran for an examination to determine whether her currently diagnosed Graves' disease is related to service, to include complaints and testing in September 1983 for a left thyroid nodule and enlargement. A rationale should be provided. 3. Readjudicate the Veteran's claims. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs