Citation Nr: 1338693 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-35 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. (The issue of entitlement to education assistance under Chapter 33 of Title 38, United States Code (Post 9/11 GI Bill) will be addressed in a separate Board decision.) WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran was a member of the Army Reserves and served on active duty for training from August 2004 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in July 2013. A transcript is included in the Virtual VA claims file. Additionally, the Veteran through her testimony demonstrated actual knowledge of the elements necessary to substantiate the claim for service connection. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDING OF FACT Diabetes mellitus was not present during active service and is not causally related to service. CONCLUSION OF LAW The criteria for service connection of diabetes mellitus have not been met. 38 U.S.C.A. §§ 101, 106, 1131(West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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 sent in October 2009, prior to the initial adjudication of the claim. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board and the RO. All known and available records relevant to the issue on appeal have been obtained, and the Veteran has not contended otherwise. The Board acknowledges that the Veteran was not provided a VA examination and that no VA medical opinion was obtained in response to the claim for service connection. No such examination or opinion is required, however, because although the record contains competent evidence of diabetes mellitus, the probative evidence does not suggest the existence of diabetes mellitus during service or indicate that the diabetes mellitus may be associated with service. 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted if it is shown that the Veteran suffers from a 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 active military service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Active military service includes active duty, any period of active duty for training (ACDUTRA, the performance of full- time reserve component duties) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA, weekend training) which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not warranted. 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 (2012); 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. Factual Background and Analysis The Veteran's service treatment records are negative for evidence of diabetes. July 2004 enlistment and September 2005 retention examination reports note negative results for sugar in the urine. The Veteran has reported that she was diagnosed with diabetes in early 2009, four years after her period of active duty for training. This is confirmed by a March 2009 private treatment record indicates the Veteran was recently diagnosed to be free diabetic on Metformin. During a July 2013 videoconference hearing, the Veteran asserted that she was medically discharged from the reserves in part due to her diabetes. She reported she was diagnosed in January 2009 at a periodic physical for the Reserves and no one has told her when her diabetes started. She testified that there is a history of diabetes in her family on her grandfather's side. The Veteran indicated that she first noticed feelings of lightheadedness about six months prior to her diagnosis of diabetes. Service connection is not warranted for diabetes because the preponderance of the evidence shows that it was not present in service and is not related to service. Initially, the Board finds the probative evidence does not suggest that diabetes was present during her period of active service. Her active service treatment records reflect no findings or histories suggestive of diabetes, and the medical records indicate the condition began more than two years after her period of ACDUTRA. Though the Veteran reported her diabetes was diagnosed during a periodic examination for the Reserves, there is no indication that the Veteran was on active duty during that time. The Veteran denied symptoms indicative of diabetes during her period of active service and reported the symptoms started six month prior to her diagnosis, which is at least two years after her separation from ACDUTRA. The probative evidence also does not suggest that the diabetes is related to service. The record includes no medical findings/studies or probative lay evidence suggesting such a link. Accordingly, service connection is not warranted for diabetes. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs