Citation Nr: 1334535 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-11 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the Veteran indicated that he no longer wanted the Board hearing which he had requested in March 2010. The Board has recharacterized the psychiatric disorder claim on appeal to include all psychiatric disabilities in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era; and the evidence does not show that he was exposed to Agent Orange or other tactical herbicide agents during his active military service. 2. The Veteran's Type II diabetes mellitus is not related to service and there is no evidence of compensable Type II diabetes mellitus within one year of service separation. CONCLUSION OF LAW The criteria for service connection for Type II diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2008. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records and post-service VA treatment records. VA did not afford the Veteran an examination of his claimed Type II diabetes mellitus or obtain an etiological opinion. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, the Veteran's diabetes was first shown over 30 years after service and there is no competent evidence to show that the Veteran has Type II diabetes mellitus that is related to his service or that the Veteran was exposed to Agent Orange. As such, the evidence of record does not indicate that the claimed disability may be associated with an established event, injury, or disease in service or with another service-connected disability. Therefore, the standards requiring examination under McLendon have not been met and an examination is not necessary under 38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); See also 38 C.F.R. § 3.159(c)(4) (2009); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As for other evidence worth noting, the Virtual VA eFolder indicates that the Veteran receives compensation from the Social Security Administration (SSA). The file, however, does not show that VA has contacted SSA to obtain any additional SSA records. In some instances, VA has a duty to obtain such records. Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002). But in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit Court rejected the argument in Golz that SSA records are always relevant and that VA always is required to obtain them. Relevant records were defined under 38 U.S.C. § 5103A as those relating to the injury for which the claimant is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim. Golz, 590 F.3d at 1321. The Federal Circuit Court also pointed out that, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit Court thus concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id., at 1323. There is no such specific reason here to conclude that any SSA records are relevant to the pending claim. Thus, a remand for their procurement would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Diabetes Mellitus: Factual Background, Law and Analysis The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Some chronic diseases, including endocrinopathies to specifically include Type II diabetes mellitus, are presumed by law and regulation to have been incurred in service if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military service, certain diseases including Type II diabetes mellitus, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea in or near the DMZ between April 1, 1968, and August 31, 1971, then exposure is not presumed; and actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p). However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), to include diabetes mellitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A layperson is competent to report on the onset and continuity of current symptomatology that he or she can observe. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, 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). 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). 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). The Veteran has made no specific contentions with regard to his diabetes mellitus claim. The record does not reflect, and the Veteran has not asserted, that he had any service in the Republic of Vietnam during the Vietnam Era. Thus the Veteran's claim of service connection cannot rely on the presumption of exposure to herbicides based on service in Vietnam. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. The record does not reflect, and the Veteran has not asserted, that he was otherwise exposed to herbicides/Agent Orange during service. As such, the Board finds the evidence is insufficient to demonstrate the Veteran's exposure to herbicides during his military service. The Veteran is therefore not entitled to service connection for Type II diabetes mellitus on a presumptive basis as discussed in 38 C.F.R. § 3.309(e). This does not preclude the Veteran from establishing entitlement to service connection for Type II diabetes mellitus with proof of actual direct causation of Type II diabetes mellitus linked to service. Combee, 34 F.3d at 1043. The Veteran does not assert that he experienced symptoms of diabetes during service. In a May 2008 treatment record he reported he was diagnosed with Type II diabetes mellitus long after service, within the last two months, when he was incarcerated. The Veteran's service treatment records include no indication of complaints of, treatment for or diagnoses of diabetes in service, or within the one year presumptive period following his separation from service in July 1976. See 38 C.F.R. § 3.309(a). Thus, Type II diabetes mellitus was not affirmatively shown to have had onset in service, and service connection under 38 C.F.R. § 3.303(a) is not established. VA medical records reflect that the first diagnosis of diabetes shown on file is in 2008, over 30 years following his separation from service. The absence of medical treatment for the claimed condition for many years after service is strong evidence against the claim. Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000). Further, Type II diabetes mellitus is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, need to be addressed, but as Type II diabetes mellitus was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, the Veteran has not contended that he has had symptoms of diabetes mellitus continuously since service. The Veteran asserts that his Type II diabetes mellitus should be service-connected. However, the Board finds that the diagnosis of Type II diabetes mellitus may not be made by a lay person because special medical training and laboratory testing is required to diagnose it. See Davidson, infra. Therefore, the Board finds that the presence of the disorder is a determination "medical in nature" and not capable of lay observation. Id. Since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that the Veteran's opinion that his Type II diabetes mellitus is related to service is not competent evidence. Jandreau. Based on the foregoing, the Board finds that the record is negative for a competent and credible medical evidence finding a causal link between the Veteran's current Type II diabetes mellitus and an established injury, disease, or event of service origin including his claimed herbicide exposure. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). Therefore, the Board finds that service connection for Type II diabetes mellitus is not warranted. As there is no competent lay evidence on the material issue of whether there is a nexus to service, and there is no medical evidence in favor of the claim, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for diabetes mellitus is not warranted. REMAND The Veteran appeals the RO's September 2008 denial of service connection for schizophrenia. A March to April 1995 Memphis, Tennessee VA hospital discharge summary indicates that the Veteran reported auditory hallucinations ever since he was in service, off and on. He had been hospitalized 4 times before, with 3 hospitalizations being there at the Memphis, Tennessee VA hospital for suicidal attempts, auditory hallucinations, and alcohol and substance abuse. He had had past VA psychiatric admissions in November 1987, July 1994, and August 1994. A May 1999 VA psychiatric examination report indicates that the Veteran had been hospitalized for psychiatric problems numerous times in the past in a Veterans Hospital in Tennessee. Allegedly, his psychiatric problems started in the early 1980's. Based on these reports, it appears that there are relevant VA medical records of treatment outstanding, apparently from the Memphis, Tennessee VA hospital, and possibly another VA hospital in Tennessee, or from a private hospital, from 1987 (or perhaps even earlier) to 1995. VA medical records of treatment dated earlier than February 1995 are not of record. Such records are constructively of record and must be obtained, as should any private psychiatric hospital reports. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Afterwards, any additional action which may be necessary should be performed. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, to include adequate identification of psychiatric treatment providers since 1976, make arrangements to obtain all medical records of psychiatric treatment which the Veteran received from service discharge (1976) until February 1995, including all medical records of psychiatric treatment he received from the VAMC in Memphis, Tennessee and any other VA hospital, and any medical records of private psychiatric hospitalization. 2. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs