Citation Nr: 1338120	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  09-45 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for pancreatitis, to include as secondary to service-connected diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel 

INTRODUCTION

The Veteran served on active duty in the United States Army from January 1992 to June 1999. 

This case comes before the Board of Veteran's Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, in which pertanent part, the RO denied service connection for pancreatitis. 

In July 2012, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge.  A copy of the transcript has been associated with the claims folder.  The Travel Board hearing was sufficient to fulfill his right to a hearing under 38 C.F.R. § 20.700(a) (2013).  

In October 2012, the Board remanded the claim to the RO (via the Appeals Management Center (AMC)) for additional development, to include providing the Veteran with a VA examination to determine the nature and etiology of his claimed pancreas disorder.  A March 2013 VA examination report has been associated with the claims folder.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
 
The Board notes that in a March 2013 rating decision, the AMC awarded service connection for right knee disorder and assigned a 10 percent rating effective from November 20, 2007, and awarded service connection for diabetes mellitus and assigned a 20 percent rating effective from January 23, 2009.  The Veteran has not appealed the assigned rating or effective date for either award. 

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.



FINDING OF FACT

The competent evidence of record does not show that the Veteran has a current diagnosed disorder involving his pancreas.


CONCLUSION OF LAW

The criteria for entitlement to service connection for pancreatitis have not been met.  38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

1.  VA's Duty to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). 

Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). 

VA sent a letter to the Veteran in March 2009 that addressed the notice elements concerning his claim.  The letters informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence.  VA also informed the Veteran how it determined the disability rating and the effective date for the award of benefits if service connection was to be awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In this case, the available record includes service treatment records, service personnel records and post-service VA medical treatment reports.  To the extent that any more recent records may remain outstanding, there is no indication that they are necessary for a fully informed adjudication of the Veteran's claims.  The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained.  There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged.

In addition, the Veteran was provided with a March 2013 VA examination to determine the nature and etiology of his claimed pancreas disorder.  In the examination report, the examiner noted a review of the claims folder, and recorded the Veteran's reported medical history and findings from clinical examination.  The examiner provided a medical conclusion support by rationale.  The Board finds that VA examination report is adequate for VA adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to VCAA.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002).

2.  Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  Id. 

In order to show a 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."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b).

Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension and arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

To prevail on the issue of service connection, a claimant must show: "(1) the existence of a present disability; (2) 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

The Veteran seeks entitlement to service connection for pancreatitis.  The Veteran contends that he was seen on multiple occasions during service for various issues, including fever, chills, and diarrhea, which he believes were actually related to pancreatitis.  He also indicated that had his service-connected diabetes mellitus been diagnosed in service that he would not have had damage to his pancreas.  During his October 2012 hearing, the Veteran testified at his hearing that he has not been diagnosed with a pancreatic disorder but that such a problem would have resulted due to his diabetes mellitus.  

The service treatment records do show that the Veteran complained of various symptoms and illnesses during his period of service, to include: fever, congestion, chills, digestion problems, and diverticulitis.  However, none of the service treatment records shows that he was diagnosed with pancreatitis or a pancreas-related disorder.  

The Veteran underwent a VA examination in March 2013 to determine the nature and etiology of his claimed pancreas disorder.  At that time, the Veteran informed the VA examiner that he had never been told that he had pancreatitis.  Rather, the Veteran stated that it was an assumption he had made after doing some research on diabetes mellitus.  Based on a review of the medical records and the findings from clinical examination, the VA examiner concluded that there was no evidence of pancreatitis.  

In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's belief in his claim, the most competent medical evidence of record does not show that the Veteran has a current diagnosed disorder involving his pancreas.  Indeed, the March 2013 VA examination report also shows no subjective or objective findings of pancreas-related disorder and the VA examiner noted that the Veteran denied being told he had never been diagnosed with pancreatitis.  

There has been no diagnosis of pancreatitis or pancreas-related disorder during the pendency of this claim.  The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted.  38 U.S.C.A. § 1110; see also Shedden, 381 F.3d at 1167, and Brammer, 3 Vet. App. At 225.  Here, the record unequivocally shows that the Veteran has not been diagnosed with any disability involving pancreas at any time during the course of the appeal.  

Thus, the evidence does not demonstrate that the Veteran has a current diagnosed disorder involving his pancreas at any time during the course of the appeal.  In the absence of any diagnosed pancreas disorder, service connection may not be granted.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist].  Accordingly, the benefits sought on appeal are denied.


ORDER

Entitlement to service connection for pancreatitis is denied. 




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs