Citation Nr: 1342265 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-09 859A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1970, with active service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January and August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that continued the denial of service connection for diabetes mellitus. In November 2009, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge; a copy of the transcript is associated with the claims file. The Veteran's claim for whether new and material evidence had been received to reopen the claim for service connection for diabetes mellitus was previously before the Board in February 2010. The Board reopened the claim and remanded it for further development. As all directed development has been conducted, as will be discussed in greater detail below, the claim for service connection is properly before the Board at this time. The Board notes that it also remanded the claim for service connection for a left eye disability in February 2010. By rating decision dated February 2012, the RO granted service connection for left eye post operative retinal scar (claimed as left eye condition). As such, the claim is not before the Board at this time. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional VA treatment records. The RO indicated in the February 2012 Supplemental Statement of the Case that it had reviewed the records. Thus, there is no prejudice to the Veteran if the Board considers this evidence. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The remaining documents in the electronic files are either duplicative of the evidence in the paper claims file or are not relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran does not have diabetes mellitus, type II. 2. Diabetes mellitus did not manifest during service or within one year of separation. 3. Impaired fasting glucose is not a disease or disability within the applicable law and regulations. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a September 2006 letter, prior to the initial adjudication of the claim in January 2007. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records, post-service VA treatment records, and private treatment records. In addition, the Veteran was provided with VA examinations in July 2007 and June 2010. As the examinations included a review of the pertinent medical history, clinical findings, diagnoses, and were supported by medical rationale, the Board finds that the evidence is adequate to make a determination on this claim. As directed in the February 2010 Board remand, the RO associated all relevant VA treatment records with the claims file and scheduled the Veteran for an examination to determine whether he has diabetes mellitus. Therefore, the RO has complied with the directives contained in the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). When conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). Here, during the hearing, the type of evidence that was needed to substantiate the claim was addressed. Specifically, the Veterans Law Judge recommended that the Veteran have his private ophthalmologist explain why he found ocular changes to be indicative of diabetes mellitus and whether the ophthalmologist tested him for diabetes. The Veterans Law Judge held the file open for 60 days for the Veteran to submit such documentation. These actions supplement the VCAA and comply with 38 C.F.R. § 3.103. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for service connection are thus ready to be considered on the merits. Legal Principles and Analysis As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). VA laws and regulations also provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including type II diabetes mellitus, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). The Veteran served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, and is therefore is presumed to have been exposed to Agent Orange during service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran contends that he has type II diabetes mellitus that is due to his exposure to Agent Orange in service. The evidence of record, however, establishes that the Veteran does not meet the criteria for establishing a disease (diagnosis) of diabetes mellitus. The Veteran's service treatment records show that he had no complaints, treatments, or diagnoses for type II diabetes mellitus while in service. On separation, his endocrine system was reported as normal. The Veteran's April 1999 private treatment records from Tallahassee Memorial Hospital show a glucose level of 171 mg/dL. In November 2009 the Veteran testified that, after surgery in 1999, blood tests revealed that he "had some diabetes." He was subsequently referred to a dietitian who told him that he was on the verge of and "just before becoming a diabetic." The dietician also stated that the Veteran could correct it with restricting his diet. A review of the January 2002 treatment records show a non fasting glucose level of 147 mg/dL. The Veteran was afforded a VA diabetes mellitus examination in October 2002. Diagnostic and clinical tests revealed fasting glucose tolerance test (GTT) was 93 mg/dL, two hour GTT was 96 mg/dL, and HgbA1c was 6.1%. The examiner reported that there was no objective evidence for a diagnosis of diabetes mellitus. The Veteran's December 2006 private ophthalmology treatment records show a diagnosis of type II diabetes mellitus with ophthalmic manifestations. The treatment record indicates that the Veteran was diagnosed with diabetes mellitus two to three years prior to December 2006 examination. The Veteran was afforded a VA examination in July 2007. The Veteran reported that he was diagnosed with diabetes mellitus in 1999 or 2000. The examiner diagnosed the Veteran with impaired fasting glucose and reported that there was no objective evidence of diagnostic criteria for diabetes mellitus, type II. The examiner noted that the Veteran's glucose level was 108 mg/dL and he did not meet the American Diabetes Association (ADA) criteria for a diagnosis of diabetes mellitus. The Veteran was afforded a VA examination in June 2010. The Veteran reported he was told that he was "borderline diabetic" after surgery in 1999. He also stated that he was told to watch his diet, but he was not prescribed medication. The examiner reviewed the results of fasting blood glucose tests from July 2004 to March 2010. The results revealed a glucose level of 111 mg/dL in July 2004, 99 mg/dL in September 2004, 105 mg/dL in January 2005, 107 mg/dL in February 2006, 108 mg/dL in February 2007, 117 mg/dL in August 2007, and 110 mg/dL in March 2010. The examiner rendered a diagnosis of impaired fasting glucose and reported that the Veteran did meet the criteria for a diagnosis of diabetes mellitus. The Board notes that the Veteran was afforded VA ophthalmology examinations in June 2010 and February 2012. The medical history in the examination reports contain a diagnosis of diabetes mellitus with an onset in 1999. However, the June 2010 examination report also notes that the Veteran did not have diabetic retinopathy and that the compensation and pension examination for diabetes mellitus diagnosed the Veteran with impaired fasting glucose. The Veteran's post-service VA treatment records also showed glucose levels consistent with impaired fasting glucose, and not diabetes mellitus. The Veteran's reported glucose levels included 107 mg/dL in February 2008, 109 mg/dL in November 2008, 96 mg/dL in March 2011, and 89 mg/dL in February 2012. The Veteran also denied having diabetes mellitus in a March 2010 preventative health and patient education session. Under these circumstances, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192- 93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2013) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a diagnosis of diabetes mellitus. In this regard, the Board points out that all of the laboratory results, within one year of separation and during the appeal period, show that the Veteran's blood glucose level was less than 200 mg/dL and that his fasting blood glucose was less than 126 mg/dL. The Board acknowledges that the Veteran had a blood glucose level of 171 mg/dL in April 1999, 147 mg/dL in January 2002, and some treatment records report that the Veteran had diabetes mellitus. The April 1999 treatment record did not specify whether the 171 mg/dL was the Veteran's fasting or casual plasma blood glucose level. In addition, it is not clear whether the results from April 1999 or January 2002 were confirmed on a separate day. The ophthalmology treatment records also do not indicate whether the diagnosis of diabetes mellitus was per the Veteran's history or whether it was substantiated by clinical testing. Furthermore, the ophthalmologist did not provide a rationale why the ophthalmic manifestations were indicative of diabetes. The July 2007 and June 2010 VA examiners' opinions, as well as the VA treatment records from July 2004 to February 2012 are more probative because they are supported by laboratory results. The Board has considered the Veteran's statements that he has been diagnosed with diabetes mellitus. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he has been told, as with the diagnoses contained in the file, the lay evidence is remarkably lacking in detail to support the conclusions reached. The Veteran's lay assertions are therefore afforded less probative weight than the VA examination reports and treatment records that were based on clinical findings. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have diabetes mellitus. Impaired fasting glucose (pre-diabetes) has been noted; however, glucose intolerance is not equivalent to a diagnosis of diabetes mellitus. Waugerman v. Shinseki, No. 08-2685, slip op. at 4 (Ct. Vet. App. Feb. 4, 2011), citing Dorland's Medical Dictionary at 1960 (defining "impaired glucose tolerance" as "a term denoting values of fasting plasma glucose or results of an oral glucose tolerance test that are abnormal but not high enough to be diagnostic of diabetes mellitus"); and Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing Fed.R.Evid. 201(b))). The Board notes that Waugerman is referenced not as a precedent, but rather just a definition of a fact not subject to reasonable dispute. Impaired fasting glucose is simply a clinical laboratory finding and therefore not a disease or disability within the applicable law and regulations providing for service connection. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, he must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, there is no disability that resulted from a disease or injury. In sum, diabetes mellitus was not manifest, noted, or diagnosed during service or within one year of separation. In addition, the Veteran did not have characteristic manifestations sufficient to identify the disease entity during service or within one year of separation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Furthermore, the most probative evidence establishes that he has never had diabetes mellitus. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for diabetes mellitus under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, 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 type II diabetes mellitus, to include as due to exposure to herbicide is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs