Citation Nr: 1604133	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  09-34 104	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel







INTRODUCTION

The Veteran had active military service from July 1990 to December 1993.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for diabetes mellitus.

This matter was before the Board in February 2014 at which time it was remanded for further development.  

In the February 2014 Board remand, it was noted that in the appellant's April 2009 notice of disagreement, he stated that, in addition to his diabetes mellitus, he had other symptoms to include fatigue, muscle and joint pain, memory lapse and intestinal problems, which he related to his service in the Persian Gulf.  The issue was referred to the RO for adjudication.  However, a review of the claims file does not demonstrate that action has been taken on the claim.  As previously noted in the February 2014 decision, the issue is not properly before the Board, therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).


FINDING OF FACT

The weight of the evidence is against a finding that the Veteran's diabetes mellitus had its onset during military service or is otherwise related to such service.  


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  VCAA requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.

The Veteran received notification prior to the unfavorable agency decision in a letter dated in June 2008.  Specifically, he was apprised of information and evidence necessary to substantiate his claim.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  He was also informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Service treatment records and available post-service private medical records have been associated with the claims file.  Pursuant to the Board's February 2014 remand directives, in April 2014, the RO sent correspondence to the Veteran requesting that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each health care provider so that private treatment records could be obtained.  The appellant was also informed that he could submit any available treatment records.  He did not provide the appropriate authorization forms and he did not submit any additional medical treatment records.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  

Additionally, as requested in the Board's remand directives, the Veteran was scheduled for a VA examination in April 2014.  However, the evidence of record indicates that the Veteran failed to report to the examination.  He did not provide a reason for his failure to attend the examination and has made no attempt to contact the VA to request that his examination be rescheduled.  Further, the Veteran has not argued that good cause exists for his failure to participate in the scheduled VA examination.  As he has not alleged good cause for his failure to appear, his claim shall be decided based on the evidence of record.  38 C.F.R. § 3.655(b) (2015).

Thereafter, the RO issued a supplemental statement of the case in August 2014.  The Board finds that there has been substantial compliance with the Board's previous remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).  

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Legal Criteria

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, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Factual Background

The Veteran contends that his diabetes mellitus is due to in-service exposure to a variety of substances to include nerve agents, depleted uranium, smoke from oil well fires, pesticides, pyridostigmine bromide (PB) pills, and an experimental anthrax vaccination.

A review of the appellant's service treatment records is negative for treatment for or a diagnosis of diabetes mellitus.  

Available private treatment records indicate a diagnosis of and treatment for diabetes mellitus.  Notably, in a May 2008 statement from the Veteran's private physician, it was reported that that the appellant was diagnosed with diabetes mellitus in January 2007.

Also of record are letters from the Department of Defense addressed to the Veteran, which indicated Gulf War veterans of units that were near Khamisiyah, Iraq, between March 10 and March 13, 1991 may have been exposed to very low level of chemical warfare agents released during demolition operations following the war.  However, in the accompanying responses to the frequently asked questions, it was stated that medical personnel and others who were stationed near Khamisiyah had been interviewed and reported no evidence of health problems related to chemical agent exposure during the time of the demolitions.  It was also determined that there had been no evidence of health problems related to nerve agent exposure.  Moreover, it was opined that long-term health care problems were unlikely.  

As noted, the Veteran was scheduled for an additional VA examination in April 2014; however, he failed to report for the examination.

Analysis

While the evidence demonstrates that the Veteran has diabetes mellitus, the weight of the evidence is against a finding that the condition is related to military service, to include exposure to chemicals.  

At the outset, the Board notes that presumptive service connection based on the finding of a chronic disease is not warranted because the evidence of record does not show that the Veteran's diabetes mellitus manifested to a compensable degree within one year after his discharge from service in December 1993.  38 C.F.R. §§ 3.307(a) and 3.309(a).  

Notwithstanding the foregoing, the Board will consider the claim on a direct basis.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d at 1042.

In this regard, service treatment records are negative for treatment for or a diagnosis of diabetes mellitus.  Moreover, there is no medical evidence suggesting that the condition is related to military service, to include due to exposure to chemicals identified by the Veteran.  The Board notes that the Veteran was first diagnosed with diabetes mellitus in 2007, approximately 14 years after service.  The passage of so many years between the Veteran's separation from active service and the diagnosis of diabetes mellitus, while not dispositive, is evidence against the claim.  Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board recognizes the letters provided by the appellant regarding exposure to chemical agents used for demolitions and nerve agents.  However, accompanying information indicated that long-term health problems due to the exposure were unlikely.  Further, the letters do not suggest that diabetes mellitus is related to such exposure.   As such, direct service connection for diabetes mellitus is not warranted.

Finally, the Board acknowledges the Veteran's assertion that his diabetes mellitus is related to military.  Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the current diabetes mellitus is a medical question not subject to lay expertise.  See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The condition involves a pathological process that is not readily observable to a layperson.  The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the diagnosed condition is a medical question requiring medical training, expertise and experience.  

In light of the foregoing, the Board finds that service connection is not warranted for the Veteran's diabetes mellitus.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service for diabetes mellitus must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Entitlement to service connection for diabetes mellitus is denied.



____________________________________________
ERIC. S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs