Citation Nr: 9920471 Decision Date: 07/23/99 Archive Date: 07/28/99 DOCKET NO. 95-24 062 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from July 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision by the RO that denied, in part, a claim of entitlement to service connection for diabetes mellitus. In April 1997, the veteran testified at a hearing before a member of the Board. In May 1997, the Board decided two claims on appeal, and remanded the claim of service connection for diabetes mellitus for further development. In May 1999, the Board notified the veteran that, because the Board no longer employed the Board member who had conducted the April 1997 hearing, he was entitled to another hearing. That same month, the veteran replied and stated that he did not want an additional hearing. FINDINGS OF FACT 1. No competent medical evidence has bee presented to link diabetes mellitus, which was first clinically shown more than a year after military service, to the veteran's period of military service. 2. No competent medical evidence has been presented to show that diabetes mellitus has been caused or made worse by any service-connected disability. CONCLUSION OF LAW The claim for service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1998). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. For certain chronic diseases, such as diabetes mellitus, service incurrence or aggravation will be presumed when the disability is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). However, this presumption is a rebuttable one. Id. In the veteran's case, his service medical records are negative for complaints of, treatment for, or diagnoses suggesting diabetes mellitus. From the time of the veteran's separation from service in August 1977 until 1993, an interval of 16 years, there was no suggestion by competent medical evidence that he had diabetes mellitus. Private treatment records, dated in February 1985, and voluminous VA treatment records, dated from to November 1987 to October 1998, show that, in March 1993, the veteran was hospitalized for complaints of polyuria, polydipsia, and increased blood sugar level. It was noted that the veteran was begun on and instructed in insulin administration, and that his anti-hypertensive medications were changed to improve insulin sensitivity and secretion. "Uncontrolled diabetes mellitus, type II, insulin" was diagnosed. In April 1993 and November 1995, adult onset diabetes mellitus (AODM) was assessed. In June 1994 and July 1996, type II diabetes mellitus was diagnosed. In August 1996, non-insulin dependent diabetes mellitus (NIDDM) was diagnosed. In April 1997, AODM was diagnosed. At a January 1998 VA examination, it was noted that he had NIDDM. At a February 1998 VA examination, it was noted that he had longstanding diabetes that was controlled with diet. In April 1998, NIDDM was diagnosed. None of the examiners, VA or private, provided an opinion regarding the onset of the veteran's diabetes. The Board has considered the veteran's written statements and testimony regarding the onset of diabetes mellitus. While he is competent to provide information regarding the symptoms he currently experiences and has experienced since his separation from military service, there is no indication that he is competent to comment upon its etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Consequently, absent the presentation of competent medical evidence showing a link between post- service diagnosis and service, the veteran's claim may not be considered well grounded and must be denied. Additionally, there is no basis in the evidence for finding that diabetes mellitus was found during the one-year presumptive period following the veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309. There remains for consideration the matter of secondary service connection. In claims of secondary service connection, the provisions of 38 C.F.R. § 3.310 specifically allow for a grant of service connection where the evidence shows that a chronic disability or disorder has been caused or aggravated by already service-connected disability. 38 C.F.R. § 3.310 (1998). The Court has indicated that, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran will be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). For a claim of service connection on a secondary basis to be well grounded, competent medical evidence showing a causal relationship or aggravation must be presented. Jones v. Brown, 7 Vet. App. 134 (1994).38 C.F.R. § 3.310 (1998). While the record now contains evidence that the veteran has diabetes mellitus, there is no competent medical evidence tending to show that any diabetes is proximately due to or the result of his service-connected hypertension with chronic renal insufficiency or cardiovascular disease, or is in any way made worse by any such disabilities. The only linkage between the veteran's diabetes and service-connected disability is in his own vigorous contentions that his diabetes is a result of a service-connected disability. Although the veteran testified at a Board hearing in April 1997 that physicians had informed him of the relationship of diabetes mellitus to service-connected disabilities, he did not provide any evidence of these statements after being informed that they were pertinent to his claim. Absent the presentation of competent medical evidence which tends to provide some link between service- connected disability and the onset or worsening of the veteran's diabetes, the veteran's claim of secondary service connection may not be considered well grounded. Jones, 7 Vet. App. at 134. The veteran's own opinion regarding such a relationship does not suffice. Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at 494-95. The Board has also considered that certain VA medical evidence was received by the RO after the last supplemental statement of the case (SSOC) was issued in October 1998. The veteran has not submitted a waiver of RO consideration of that evidence. See, e.g., 38 C.F.R. § 20.1304(c) (1998). However, in such circumstances, a SSOC is only required where the evidence in question is "pertinent." 38 C.F.R. §§ 19.31, 20.1304(c) (1998). Here, the Board finds that the evidence received after October 1998 is either duplicative of evidence previously submitted, or is not pertinent to the veteran's claim. Although it mentions various diagnoses, including NIDDM, it does not address the etiology of the veteran's diabetes mellitus. Thus, the evidence is not pertinent to the question of etiology. Accordingly, further action with respect to this evidence is not necessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.37 (1998). It has also been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. See Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999). As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. This is what was done in the Board's May 1997 remand. ORDER Service connection for diabetes mellitus is denied. MARK F. HALSEY Member, Board of Veterans' Appeals