Citation Nr: 1325580	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  07-28 001	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina



THE ISSUE

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.



REPRESENTATION

Appellant represented by:	South Carolina Office of Veterans Affairs



ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1965 to September 1967, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

This case was previously before the Board in March 2011, when the Board granted service connection for a psychiatric disability, to include posttraumatic stress disorder, denied service connection for bilateral hearing loss, and remanded the issue of entitlement to service connection for diabetes mellitus. 

The issue of entitlement to service connection for peripheral neuropathy, to include as a result of herbicide exposure, has been raised by the record, but has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.  


FINDING OF FACT

Diabetes mellitus, type II, is not currently shown.


CONCLUSION OF LAW

The criteria for service connection of diabetes mellitus, type II, to include as due to herbicide exposure have not been met.  38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA requires VA 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Duty to Notify

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).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, 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.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent letters in February 2007 and May 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further notice is required.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

This case turns on whether the Veteran has current diabetes mellitus.  The record shows that the Veteran has received extensive testing and monitoring to determine whether he has that disease, but it has never been found.  Inasmuch as the pertinent testing has already been accomplished, there is sufficient medical evidence to make a decision on the claim.  Since the evidence does not indicate that the Veteran has a recognizable disability that may be related to active duty service, no examination is indicated, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's March 2011 remand, VA obtained updated treatment records with respect to the Veteran's claimed diabetes mellitus, type II.  Thus VA has complied with the March 2011 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

For the above reasons, 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).

Principles of Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Generally, to establish service connection the evidence 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).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any 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).  38 U.S.C.A. § 1116(f).  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus, type II, among other diseases, shall be service-connected even though there is no record of such disease during service.  38 C.F.R. § 3.309(e).

In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

Facts and Analysis

The record shows that the Veteran had service in the Republic of Vietnam and is thus presumed to have been exposed to herbicides, including Agent Orange.  

VA treatment records show that the Veteran has shown elevated levels of blood glucose since at least June 2006, when lab tests recorded readings of 116.  At that time, he was counseled as to his diet and referred to a dietitian; he was provided with a Glucometer to check his blood sugar.  

In October 2006, he was shown to have impaired fasting glucose.  There are indications that he had previously exhibited sporadic elevated blood glucose readings.  A follow-up appointment in November 2006 showed normal blood glucose readings, but he was counseled on his diet and provided information on controlling diabetes.

In his formal appeal filed in July 2007, the Veteran said that his doctor had him checking his blood sugar daily because of elevated levels.

In an August 2010 treatment note his eye doctor indicated that the Veteran was "likely diabetic with multiple elevated fasting glucose" readings.  A November 2010 treatment note from his primary care physician showed that the Veteran was still being monitored for impaired fasting glucose, but his A1C level was still at goal.  His prescription list showed blood glucose testing supplies for twice weekly testing.  No diagnosis of diabetes mellitus is shown.

The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides.  As such, if the Veteran has diabetes mellitus, type II, service connection would be warranted under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309.  The question before the Board is whether the Veteran has diabetes mellitus, type II.  In this instance, the record shows that he does not.

The Veteran asserts, and the record supports, that he has elevated fasting glucose levels and must monitor his blood sugar on a regular basis of twice per week.  The findings of elevated blood glucose, however, are different from a diagnosis of diabetes mellitus and there is no evidence in the record that such a diagnosis has been made to date.  The Veteran's eye doctor noted that he likely had diabetes based on his elevated glucose levels, but did not make a formal diagnosis of diabetes.  Moreover, the Veteran's treating physicians, who are closely monitoring his blood glucose readings and A1C tests, have not diagnosed diabetes.

Despite the need for the Veteran to check his blood sugar levels twice a week, the Veteran is not shown to have diabetes mellitus, type II, at this time.  Rather, the record shows that he is considered to be at risk of developing the condition and his doctors are monitoring his glucose readings.  The evidence of record demonstrates that the Veteran has not met the criteria for current diagnosis of diabetes at any time since submitting his claim.  Should a diagnosis of this condition be given in the future, service connection would be appropriate.  However, at present, the Veteran is not shown to have a current disability, and his claim of service connection must therefore be denied.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b).



ORDER

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs