Citation Nr: 1333556 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-36 504 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1983. This appeal to the Board of Veterans' Appeals (Board) arises from a September 2008 rating decision in which the RO, inter alia, denied service connection for diabetes mellitus, type II. In October 2008, the Veteran filed a notice of disagreement (NOD) as to the denial of this issue. The RO issued a statement of the case (SOC) in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. In January 2012, the Board remanded this matter to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. The AMC continued to deny the appeal (as reflected in a June 2012 supplemental SOC (SSOC), and returned this matter to the Board. As a final, preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The probative evidence of record does not indicate that diabetes mellitus was present in service or for years thereafter, and there is no competent evidence or opinion that there exists a medical nexus between the Veteran's current diabetes mellitus, type II, and service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice 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-compliant 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.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a January 2008 pre-rating letter provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2008 rating decision reflects the RO's initial adjudication of the claim. Hence, the January 2008 letter meets the content of notice requirements of Pelegrini and Dingess/Hartman, as well as the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, his representative, a comrade and family members. The Veteran has not identified any additional records that are relevant to his claim on appeal, and the Board finds that no additional RO action to further develop the record in connection with the matter herein decided, prior to appellate consideration, is required. As noted, the Board sought further development of the claim on appeal in January 2012. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2012, the Board instructed the RO/AMC to obtain from the Decatur VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from 1997 to 2000, and to solicit from the Veteran any additional evidence pertinent to the claim on appeal that was not currently of record. The record reflects that the AMC completed these requests. Accordingly, the Board finds that the RO/AMC has substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim for service connection on appeal. However, as will be discussed below, given the pertinent facts, no such examination or medical opinion is required. The Board notes that a supplemental SOC, issued in June 2012, was returned as undeliverable, and the present whereabouts of the Veteran are unknown. The last record of contact from the Veteran to the RO appears to have occurred September 2009, when he filed his VA Form 9 in connection with this appeal. The address currently on file for the Veteran matches the address provided by the Veteran at that time, with previous correspondence having successfully been mailed to that address. It is the burden of the Veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board also notes that "[T]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has apparently moved and not provided VA with a current address. Consequently, no further RO action in this regard is required, and the Board will proceed with its decision on the current record. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006)(rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that he was diagnosed with diabetes mellitus in 1981 while serving on active duty in Fort Hood, Texas. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and diabetes mellitus becomes manifest to a degree of ten percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of 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. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Considering the pertinent evidence in light of the above, the Board finds that service connection for diabetes mellitus, type II, is not warranted. Service treatment records are negative for any mention of treatment for, history of, or complaints related to a diagnosis of diabetes mellitus. In particular, the Veteran's August 1983 separation examination reflects that he reported he was in good health, on no medication, and that he did not have any unreported medical conditions. The examining physician indicated no abnormities on clinical evaluation, and urinalysis testing for sugar was negative. Post service, the first available medical records are VA treatment notes, dated August 2003, which note that the Veteran has diabetes mellitus, type II. Subsequent VA treatment notes document the Veteran's reports of diabetes dating back to service, and note his family history of diabetes, but contain no clinician opinions regarding the likely date of onset/etiology of the Veteran's diabetes. In his October 2008 NOD, the Veteran indicated that he was placed on a restricted diet while stationed at Fort Hood and that he began taking medications for diabetes following service in approximately 1989 or 1990. He also submitted statements from his comrade, brother and father stating that he was diagnosed with diabetes while in service. As indicated, post service, the record establishes that the Veteran has a current diabetes mellitus diagnosis. However, there is no competent, credible and persuasive evidence to support a finding that diabetes had its onset within one year of service separation, or that there exists a medical nexus between current diabetes mellitus and service. The Board has considered the various lay statements of record alleging the Veteran was diagnosed with diabetes in service, as well as his statements that he has experienced continuity of symptomatology of diabetes since service, but finds the probative value of such statements is outweighed by the pertinently negative contemporaneous service department records. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Such records are more reliable, in the Board's view, than unsupported assertions as to events occurring over thirty years ago. See also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Although the lack of contemporaneous medical evidence does not, in and of itself, render the lay testimony incredible, the absence of such evidence may go to the credibility and weight of lay testimony. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the lay statements are unsupported by the Veteran's service records. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board notes that there are no objective documentations of diabetes until August 2003-approximately 20 years after service separation. The passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, as there was no evidence of diabetes within one year of discharge, the in-service incurrence of diabetes may not be presumed. With regard to VA's duty to assist veterans by obtaining a medical examination and/or opinion, the Board finds that this claim does not meet the fundamental requirements necessary to obtain such opinion. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has a current disability, but there is nothing to indicate that his diabetes may be associated with an event, injury, or disease in service. Additionally, there is no medical or other persuasive evidence which suggests his diabetes is related to service. Moreover, in the absence of evidence of an in-service disease or injury, a remand of this case for an examination or to obtain an opinion as to the etiology of the Veteran's diabetes mellitus would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's diabetes mellitus and his military service would necessarily be based solely on uncorroborated lay assertions regarding what occurred in service advanced in support of the Veteran's claim. The United States Court of Appeals for Veterans Claims has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Simply stated, referral of this claim for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2012). Therefore, VA has no obligation to obtain a medical opinion commenting upon the etiology of the Veteran's diabetes mellitus, type II. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. For all the foregoing reasons, the claim for service connection for diabetes mellitus, type II, must be denied. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus, type II, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs