Citation Nr: 1327114 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-42 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Service connection for diabetes mellitus, type II as secondary to service connected anemia or as a result of herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to November 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). By rating decision in July 2005, the RO denied service connection for diabetes mellitus to include as secondary to herbicide exposure. This decision was final. By rating decision in July 2008, the RO denied service connection for diabetes mellitus to include as secondary to service connected anemia. In August 2010, the Veteran testified before the undersigned at a Travel Board hearing. In June 2013, the Board reopened the issue of service connection for diabetes mellitus as secondary to herbicide exposure. The issue was recharacterized as shown on the title page and was remanded by the Board for additional development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran did not have service within the borders of Vietnam or the inland waterways, and is not presumed to have been exposed to herbicides such as Agent Orange. 2. The Veteran's period of service did not begin until April 1989, or 14 years after the presumptive period of exposure to herbicide during active military service in Vietnam ended. (The period beginning in January 1962 and ending in May 1975). 3. The Veteran first developed diabetes mellitus many years after discharge from service; the preponderance of the evidence is against a showing of continuity of symptomatology, and there is no competent opinion that relates this disability to service, or as secondary to a service connected disorder. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated due to service or a service connected disability, nor may it be presumed to have been incurred due to service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 and 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent letters in May 2005 ( prior to the July 2005 rating decision), and in July 2007 (prior to the July 2008 rating decision); and additional notice including a June 2013 letter (subsequent to a June 2013 Board Remand, and, subsequent to the initial adjudication of the claims). These letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. They also explained what type of information and evidence was needed to establish a disability rating and effective date. While complete VCAA notice was provided by the June 2013 letter after the initial adjudication of the claims, this timing deficiency was cured by the readjudication of the claim in a July 2013 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, the duty to notify has been satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the service treatment and personnel records, as well as all available post-service reports of VA and private treatment and examinations. The Board has carefully reviewed the evidence 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 pertinent to the Veteran's claim. Additionally, the Veteran was afforded VA examination in February 2012, with addendums issued including in April 2012 and March 2013. The Board finds that the examination and addendums are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the claimed disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The June 2013 Board Decision/Remand reopened and remanded the portion of the claim for diabetes mellitus due to herbicide exposure. This was combined with the claim of diabetes mellitus as secondary to service-connected anemia. In addition the Board sought an addendum dated in March 2013 to the VA examination in February 2012. This document was noted but not contained in the treatment records. The Board finds substantial compliance with the directives of the most recent Board Remand and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. 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) (2012) requires that the Acting Veterans Law Judge (AVLJ) who conducts a hearing fulfill two duties to comply with the above 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, during the August 2010 Board hearing, the Veteran was assisted at the hearing by an accredited representative from the VFW. As noted in the hearing transcript, the AVLJ explained to the Veteran what the evidence was required to show in a claim for service connection in a conference before the hearing. During the hearing, the representative and the AVLJ asked pertinent questions. 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. Therefore, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service Connection The Veteran contends that he has developed diabetes mellitus as a result of active service. He argues that the diabetes mellitus developed either as a result of exposure to herbicides during service, or on a direct basis to active service. In the alternative, the Veteran contends that his diabetes mellitus has either developed secondary to his service connected anemia, or has been aggravated by his anemia. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). If diabetes mellitus becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of diabetes mellitus during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) There is a second type of presumption that is potentially applicable for diabetes mellitus and which the Veteran contends applies in this instance. If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. These diseases include type 2 diabetes. 38 C.F.R. § 3.309(e). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions. These complex questions would include determining whether or not his symptoms constitute diabetes mellitus, or whether or not diabetes mellitus has developed due to service, due to a service connected disability, or due to herbicide exposure, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). After a review of the evidence and the Veteran's contentions, the Board must find that service connection for diabetes is not warranted under any theory. The Veteran gives no evidence to support his claim of exposure to herbicides in service. He does not allege that he set foot in Vietnam, Korea, or Thailand; nor, does he allege that he served aboard a naval vessel that was stationed in the waters off the shores of Vietnam. In fact his period of service was from April 1989 to November 1994 which was well over a decade after the presumptive period for the Vietnam era ended. He has submitted no evidence whatsoever which is sufficient to trigger the presumption to exposure to herbicides. As the Veteran may not be presumed to have been exposed to herbicides in service, it follows that service connection for diabetes mellitus may not be awarded on a presumptive basis based on herbicide exposure. The Veteran may still be considered for service connection for diabetes mellitus on a direct basis. However, there is no evidence of this disability during service or until many years after discharge from service. As for service connection on either a direct basis or on a presumptive basis as a chronic disease, the Veteran's service treatment records are completely negative for complaints, symptoms or a diagnosis of diabetes. The post service records show that the Veteran was afforded a VA examination in January 1996 which found that his endocrine system was normal. Urinalyses conducted in June 1998 and July 1998 were both negative for glucose. VA medical records do not show evidence of diabetes mellitus until approximately February 2003, which is approximately nine years after service. (November 1994). In a July 2007 note contained in the electronic record, the Veteran reported that he had been diagnosed with diabetes mellitus within the last year. The Board notes that in his August 2010 testimony the Veteran reported only a three month history of diabetes mellitus. The Veteran was afforded a VA examination in April 2012. The examiner noted that the Veteran had been diagnosed with diabetes mellitus in 2007. It was managed by restricted diet and prescribed oral hypoglycemic agents. The Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. The Veteran offered no medical opinion in support of his claim. In a September 2012 addendum to the examination the examiner noted that the Veteran had been diagnosed with diabetes mellitus and apparently iron deficiency anemia. However medically there would be no specific connection between his anemia and any definitive effect to a diagnosis of diabetes mellitus. He also noted that a March 2012 laboratory test showed the Veteran's hemoglobin was 13.3 which was in the normal range, and therefore the Veteran was not currently anemic. He noted that there would be no medical connection to his knowledge between the Veteran's anemia and any worsening of or a secondary diagnosis of diabetes. He opined that, "therefore, I feel that it is least as likely as not that the Veteran's diabetes mellitus is permanently aggravated by his service connected anemia diagnosis." Given that the reasons and bases provided by the examiner appeared to contrast with the opinion, the September 2012 addendum to the examination was considered inadequate. A March 2013 addendum to the examination was noted but was not in the claims file. An April 2013 addendum to the examination noted that the examiner had reviewed the claims file and his prior opinion remained unchanged. Subsequent to the Board's June 2013 Remand the March 2013 addendum was obtained and reviewed. The examiner noted that based on medical literature review, and his personal medical knowledge, there was no direct connection between a diagnosis of iron deficiency anemia and any negative effect on a concomitant diagnosis of diabetes mellitus. The examiner also stated that it should be noted, as he dictated in his previous reports (September 21, 2012 and April 13, 2012), that on March 23, 2013 the Veteran's hemoglobin was 13.3, so that the diagnosed iron deficiency anemia was not present at that time. The examiner stated that through available medical knowledge and literature review, he felt that it was ultimately less likely than not that the Veteran's service connected anemia diagnosis would have permanently aggravated the concomitant diabetes mellitus. The examiner stated, again, that he cannot see any definitive link between the two. The examiner opined that it is less likely than not that the diabetes mellitus was permanently aggravated by the service connected anemia diagnosis. He noted that his initial opinion had been transcribed incorrectly. The examiner also noted that he was asked "whether the Veteran's diabetes mellitus was directly related to military service or whether it was first manifested within one year after discharge from the military. He noted that from his understanding the Veteran had been diagnosed with diabetes mellitus in 2007. The Veteran's service was from 1986 through 1994. The examiner opined that it is less likely than not that the diabetes mellitus would be directly related to military service, as he can, again, see no obvious causative connection between the two and the Veteran was first diagnosed multiple years after being discharged from the military in 1994. The examiner noted the C-file was thoroughly reviewed. The Board concludes that entitlement to service connection for diabetes mellitus is not established. The evidence does not show that diabetes mellitus was diagnosed during service or within the first year following discharge from service, and there is no competent evidence of a relationship to active service or to service connected anemia. When the Veteran was asked when he was initially diagnosed at the August 2010 hearing, he indicated that this occurred shortly after his discharge from service. However, subsequent testimony suggests that the Veteran was actually referring to his anemia, which the medical evidence confirms was initially diagnosed during that period. The Veteran did testify that he was told he was pre-diabetic during service. Finally, the Veteran also testified earlier in the hearing that his diabetes had been diagnosed three months prior to this hearing. See Transcript. While the Veteran is competent to report when he was first diagnosed with diabetes mellitus, the Board is unable to find that his testimony as to when he was initially diagnosed with diabetes mellitus is credible. The Veteran contradicted himself at the hearing and in a July 2007 statement in the medical records. Furthermore, his testimony is not supported by the medical evidence. The Veteran has extensive VA medical records dating from shortly after discharge from service to the present. A January 1996 VA examination notes that the endocrine system was normal, and urinalyses conducted in June 1998 and July 1998 were both negative for glucose. VA treatment records from 2002 state that the Veteran has a family history of diabetes mellitus, but do not contain any reference to the Veteran himself having diabetes mellitus. The earliest medical evidence of a diagnosis of diabetes mellitus is found in the February 2003 VA records. In July 2007 the Veteran stated that his diabetes mellitus had been diagnosed about one year earlier. There is no competent medical opinion that relates diabetes mellitus to active service, including potential herbicide exposure in active service. The only competent medical opinion states that there is no relationship between the Veteran's diabetes mellitus and active service. Similarly, there is no competent medical opinion that finds there is a relationship between the Veteran's service connected anemia and diabetes mellitus. The only competent medical opinion says that diabetes mellitus was not caused or aggravated by anemia. In reaching this decision, the Board is mindful of the Veteran's sincere opinion that he developed diabetes as a result of service or his service connected anemia. However, the Veteran is not competent to provide evidence as to more complex medical questions such as causation, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board has also considered whether or not a relationship between the Veteran's diabetes mellitus and active service is established by continuity of symptomatology, but there is no evidence of a continuity of symptomatology between active service and the diabetes that was diagnosed in 2003. Other than the statements at the hearing that the Board does not find credible, the Veteran has not provided any statements or evidence pertaining to continuity of symptomatology. As previously noted, there is no medical evidence of diabetes in the record prior to 2003. Therefore, the Board must conclude that service connection for diabetes mellitus is not warranted. Entitlement to service connection for diabetes on any basis is not established. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus, type II to include as secondary to service connected anemia or as a result of herbicide exposure is denied. _________________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs