Citation Nr: 1338078 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-31 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus. 2. Entitlement to service connection for heavy metal poisoning. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1982. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was previously before the Board in April 2011, when it was remanded for further action by the originating agency. The issues of entitlement to service connection for bilateral hearing loss and tinnitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Type 2 diabetes mellitus was not present until more than one year following the Veteran's discharge from service and is not etiologically related to the Veteran's active service. 2. Neither heavy metal poisoning nor any residual of heavy metal poisoning has been present during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for service connection for type 2 diabetes mellitus are not met. 38 U.S.C.A. §§ 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for heavy metal poisoning are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in October 2006, prior to the initial adjudication of the claims. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records, as well as identified VA medical treatment records, have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims. The Board is aware that private medical evidence related to the claimed disabilities may exist. However, the Veteran was asked to provide the necessary information and release authority to obtain the private medical records in April 2011, but failed to respond to the request for information. As a result of the Veteran's failure to cooperate, the private records are not available. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges that the Veteran has not been provided a VA examination in response to either of these claims. VA is required to provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there is no competent evidence of the presence of diabetes mellitus until years following the Veteran's discharge from service or of a nexus between the Veteran's active service and his diabetes mellitus. There is also no competent evidence of the presence of heavy metal poisoning in service or thereafter. In addition, the Veteran has reported a history of heavy metal poisoning to his VA health care providers, but they have not diagnosed heavy metal poisoning or identified any residuals of such poisoning. Therefore, the medical evidence of record is sufficient to decide these claims and VA is not obliged to provide the Veteran with a VA examination. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Diabetes mellitus may be presumed to have been incurred or aggravated during active service if it is manifested to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also 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), citing Gilbert, 1 Vet. App. at 54 . III. Factual Background The evidence establishes that the Veteran served in the Navy from June 1976 to June 1982. He served aboard the USS JOHN F KENNEDY (CV 67) for 4 years and 10 months. His rate was IC1, Interior Communications Electrician First Class, with a primary specialty of being a closed circuit television technician. The Veteran claims service connection for diabetes mellitus and "heavy metal poisoning." On his original claim, he indicated that these disabilities began in 1978 without providing any amplifying information. In a March 2008, he submitted a statement on a VA form 21-4142 in which he asserted that his diabetes mellitus may have been caused by exposure to depleted uranium munitions aboard ship and that this also caused heavy metal poisoning. In a March 2009 statement the Veteran claimed that he had diabetes mellitus as a result of eating foods prepared with hydrogenated oils and trans-fats in cooking and that these were used while the Veteran was in the Navy. He also asserted that the service treatment records would show that he sought treatment for "sleep paralysis and the need to take naps at lunchtime" during service. Again he asserted that was exposed to depleted uranium munitions aboard ship. He claimed there was an incident during which the servos on a Phalanx weapons system malfunctioned and depleted uranium rounds were fired and "shot up the side of our ship right next to where I was at the time." The Veteran is not specific about whether the ship was hit by its own weapons system fire, or the fired rounds merely traveled up the side of the ship very close to the ship. The service treatment records are complete. They contain entrance and separation examination reports along with treatment records spanning the Veteran's period of service. The records do not reveal any complaints of, treatment for, or diagnosis of diabetes mellitus, memory loss, or heavy metal poisoning. The Veteran asserts that he sought treatment for "sleep paralysis" during service and that this is evidence of both diabetes mellitus and heavy metal poisoning. An October 1977 sick call record notes that the Veteran reported symptoms of, "body stiffness last PM. Patient states he was lying in bed last PM and closed his eyes and saw these red balls go from left to right and there was hum with each ball. The hum increased as the ball went to right patient states his body then went numb and his heart rate increased then he got stiff and couldn't talk or move." The assessment was unknown and he was referred to a Medical Officer for evaluation. A later notation indicates that the Veteran had consumed a wine cooler and that he now had almost complete resolution of symptoms. Subsequent service treatment records do not show any complaints of any such symptoms. In May 1982, a separation examination of the Veteran was conducted. Clinical evaluation revealed that the only noted abnormality was that the Veteran was circumcised. Specifically, evaluation of the endocrine system and neurologic system was normal. Laboratory testing for excess sugar was essentially negative. On the accompanying report of medical history the Veteran indicated no to questions asking if he had: sugar or albumin in urine, paralysis, epilepsy or fits, or memory loss. A September 2004 VA treatment record reveals that the Veteran was seen for the first time to establish medical care. He reported that he had type 2 diabetes mellitus which had been diagnosed "only last year." A March 2005 VA outpatient treatment record specifically indicates that the Veteran reported that he had been diabetic for approximately 2 to 3 years. VA treatment records dating from 2004 to 2008 confirm that the Veteran is diagnosed with type 2 diabetes mellitus. However, there is no indication in any of the VA records that the Veteran's current diabetes mellitus is linked to service; became manifest within the first year of separation from service; or is linked to any alleged heavy metal poisoning or exposure to depleted uranium during service. A November 2007 VA consultation report reveals that the Veteran sought treatment for complaints of memory loss. He reported that, "last year he had an episode of severe memory dysfunction and was confused for about a week. He is being followed by other doctors outside the VA system. He reported that he had been diagnosed heavy metal poisoning from exposure," the details of which were not clear to the consultant. He reported being treated with the prescription medication Hydergine. He described "his memory problems as loss of memory and confusion for days which he blames for the heavy metal poising he had." Magnetic resonance imaging (MRI) examination of the brain was unremarkable. The impression was "cognitive dysfunction, cause unclear." An April 2008 VA neurology outpatient treatment note indicates that the Veteran had complaints of "memory loss since heavy metal poisoning ? Late 70s. He says he was exposed to depleted uranium." However, a February 2008 VA cardiology note indicates that the Veteran had a history of syncopal episodes but had refused evaluation with tilt testing. III. Analysis There is no competent evidence of the presence of diabetes mellitus in service or until many years thereafter. Moreover, the examination for discharge was negative for evidence of diabetes mellitus. There also is no competent evidence suggesting that the Veteran's diabetes mellitus is related to heavy metal poisoning in service or that it is otherwise etiologically related to service. The evidence of the presence of diabetes mellitus in service or of a nexus between the Veteran's diabetes mellitus and his active service is limited to the Veteran's own statements. This is not competent evidence of the presence of diabetes mellitus in service or of the alleged nexus since the Veteran, as a lay person, does not have the expertise required to diagnose diabetes mellitus or to provide a competent opinion concerning its etiology. Similarly, there is no competent evidence of heavy metal poisoning in or subsequent to service. It appears from the service treatment records that the "sleep paralysis" the believes was due to heavy metal poisoning was related to alcohol use. Although the Veteran has been followed by VA on an outpatient basis for years and he has reported a history of heavy metal poisoning, on no occasion has any VA health care provider diagnosed him with heavy metal poisoning or residuals of heavy metal poisoning. The record does reflect that the Veteran has reported that one or more private health care providers have diagnosed him with heavy metal poisoning; however, as discussed above, due to the Veteran's failure to cooperate, no records of such private treatment are of record. In essence, the evidence of this claimed disability is limited to the Veteran's own statements. This is not competent evidence of the claimed disability since the Veteran, as a lay person, does not possess the expertise required to diagnose such a disorder. Accordingly, the Board must conclude that service connection is not warranted for either of these claimed disabilities. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Service connection for type 2 diabetes mellitus is denied. Service connection for heavy metal poisoning is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs