Citation Nr: 1714717 Decision Date: 05/04/17 Archive Date: 05/11/17 DOCKET NO. 14-15 936 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure. ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from October 1957 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Board notes that the Veteran's claim was originally denied in a rating decision issued in July 2009, but was reconsidered and the denial continued in the August 2012 rating decision on appeal. The Board notes that the Veteran has submitted additional evidence since the issuance of the March 2014 statement of the case. This new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in May 2014, which was after February 2, 2013, when the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105 (e)(1); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Furthermore, as the evidence submitted is unrelated to the issue on appeal, no prejudice will befall the Veteran by the Board moving forward with adjudication of his claim. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 C.F.R. § 20.900 (c)("advanced age" is defined as 75 or more years of age). FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current diagnosis of diabetes mellitus, and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103 (a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters issued in November 2007, December 2010, and February 2011, sent prior to the initial unfavorable decisions issued in July 2009 and August 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA has also satisfied its duty to assist the Veteran in the development of his claim. This duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the instant case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, service treatment records as well as post-service VA and private treatment records have been obtained and considered. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. In regard to his claim for service connection for diabetes mellitus, the Veteran was afforded a VA examination in February 2014. The Board finds that such VA examination is adequate to decide the issue as it was predicated on an interview with the Veteran, a review of the record, and an appropriate examination. In this regard, such examination failed to reveal a diagnosed disability pertaining to the Veteran's claimed diabetes mellitus. Furthermore, as discussed herein, there is no other competent evidence of record suggesting a current diagnosis of such disorder. Furthermore, even though the examiner found no diagnosis, he still provided a etiological opinion regarding the Veteran's claimed condition. The examiner proffered an opinion that considered all of the pertinent evidence of record, to include statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection The Veteran is seeking service connection for diabetes mellitus. He alleges that such began in service and is related to alleged exposure to Agent Orange while he was on active duty in the Navy. 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 (a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (a)(6). Diabetes mellitus is among the diseases for which presumptive service connection is available and must manifest to a degree of 10 percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309 (e); but see also 38 C.F.R. § 3.309(e), Note 2. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, including his service treatment records, post-service treatment records, VA examination report, and statements submitted in support of his claim. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claim for service connection for diabetes mellitus. As previously noted, the Veteran contends that he currently suffers from diabetes mellitus which was diagnosed in service. He further believes that such was caused by his alleged exposure to herbicides while serving in the Navy. Service treatment records reflect that the Veteran was confined in March 1971 due to a upper GI bleed secondary to an ulcer. An April 1971 Medical Board report confirmed the confinement with the primary diagnosis of Upper Gastrointestinal Hemorrhage and further noted "urinalysis, glucose, BUN, and electrolytes were normal." A Medical Board report dated October 1971 referenced the same March 1971 confinement but noted the following diagnoses "1) Upper Gastrointestinal Hemorrhage, questionable secondary to duodenal ulcer, resolved, and 2) Chemical diabetes mellitus on the basis of an abnormal glucose tolerance test with two-hour blood sugar of 130 (done on June 15, 1971)." The Veteran was not placed on medication for diabetes. A June 1977 separation Report of Medical Examination, revealed a normal endocrine system with no mention of diabetes. Post-service the Veteran's records are silent for any diagnosis or treatment for diabetes mellitus, however the Veteran was diagnosed with impaired fasting glucose in 2014. Treatment records reflect that the Veteran's A1C level was 5.2% in July 2013 and his fasting plasma glucose was 104.20 in February 2014. Despite the lack of evidence for a diagnosis post service, but in light of the possible diagnosis in service, the Veteran was afforded a VA diabetes mellitus examination in February 2014. The examiner found no official diagnosis for diabetes mellitus and only evidence for a diagnosis of impaired fasting glucose which did not meet the criteria for a diagnosis of diabetes. Furthermore, upon examination, the examiner found no elevations in fasting blood sugar. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that the laboratory tests did not show any elevations in fasting blood sugar. Furthermore, the examiner noted that while the Veteran claims he was told he had diabetes in service, the examiner found that such finding is classified as only impaired fasting glucose. He explained that diabetes mellitus is diagnosed based upon any one of four signs of abnormal glucose metabolism (according to the American Diabetic Association Standards of Medical Care in Diabetes-2011). These include fasting plasma glucose, random venous plasma glucose, plasma glucose, and hemoglobin A1C. The examiner found that the Veteran's in-service abnormal glucose tolerance test with two-hour fasting blood sugar of 130, which was used as a basis for the diabetes diagnosis, fell short of the criteria for the diagnosis of diabetes. The Board notes that there is no contrary opinion of record. The Veteran's documented elevated glucose, like hyperlipidemia and elevated cholesterol, is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.) The Board finds that service connection for diabetes mellitus cannot be established, as the Veteran does not have a current disability during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. See McClain, supra; Romanowsky, supra. Specifically, the evidence of record contains no diagnosis in this regard, and objective testing, was all normal. With respect to a possible diagnosis of chemical diabetes mellitus in service, the Board finds the VA examiner's February 2014 opinion to be probative, and that such opinion noted that the tests used to confirm such a diagnosis do not meet the criteria for a diagnosis of diabetes. Therefore, the Board finds that the Veteran did not have a credible diagnosis in service. The Board has considered the Veteran's allegations that he has experienced diabetes since service. In this regard, while he is competent to report having certain symptoms, the evidentiary record does not reflect his complaints. Furthermore, the Board finds that any determination as to the presence of the claimed disability is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a diagnosis with respect to diabetes mellitus as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires medical expertise and testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis in this regard. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran's claim must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran's claimed diabetes mellitus. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for diabetes mellitus is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs