Citation Nr: 0715764 Decision Date: 05/25/07 Archive Date: 06/01/07 DOCKET NO. 05-00 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for diabetes mellitus. ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active service from March 1955 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The veteran's hypertension was not caused by his active military service from March 1955 to March 1958. 2. The veteran's diabetes mellitus was not caused by his active military service from March 1955 to March 1958. CONCLUSIONS OF LAW 1. Service connection for hypertension is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). 2. Service connection for diabetes mellitus is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). 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 Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). The first requirement for any service connection claim is competent evidence of existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has current diagnoses of hypertension and diabetes mellitus. Therefore, he has current disabilities for VA purposes. The Board acknowledges that attempts were made to secure service medical records (SMRs) from the National Personnel Records Center (NPRC). The NPRC responded that the records were not available and presumed destroyed in the St. Louis fire in 1973. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991) (where SMRs have been destroyed or are unavailable, the Board has a heightened duty to provide and explanation of reasons or bases for its findings). Furthermore, when a veteran's service medical records are not available, VA's duty to assist, and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (are heightened). See Moore (Howard) v. Derwinski, 1 Vet. App. 401, 404 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 480, 483 (1992). However, while the duty to assist is neither optional nor discretionary (See Littke v. Derwinski, 1 Vet. App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley." Olson, 3 Vet. App. at 483. "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted). In May 2005, the RO notified the veteran that his SMRs were not obtainable. Enclosed with the letter was a NA Form 13055, "Request for Information Needed to Reconstruct Medical Data." The veteran was asked to fill out and return the form so that VA could attempt to reconstruct his medical data from his period of service. The veteran did not return the form. The veteran submitted several release forms for his private physicians, and VA obtained records from those doctors. In an October 2003 letter, the veteran stated he was treated from 1967 to 1999 by Dr. D. D., a private physician who retired in 1999. The Board remanded this case in January 2006 so that the RO could send the veteran a release form for the records from this physician. The RO did so in a February 2006 letter. The veteran returned several release forms for other private doctors, but did not return one for Dr. D. D., even though the RO specifically asked for a release for this doctor's records. The veteran's post-service treatment records show that he was first diagnosed with hypertension in 1986, 28 years after leaving the military. He was diagnosed with diabetes mellitus in 1991, 33 years after leaving the military. The Board must note the lapse of many years between the veteran's separation from service and the first treatment for the claimed disorder. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the lapse of time in this case is so great that it provides very negative evidence against the veteran's claims. The veteran's VA and private post-service treatment records do not provide a link between the veteran's hypertension and diabetes and his period of active service. Instead, they show that he developed the claimed conditions decades after leaving military service. Presumptive periods do not apply to the veteran because the medical evidence shows that the claimed conditions did not manifest to a degree of 10 percent within one year of leaving military service. 38 C.F.R. § 3.303(b). While the service medical records are not available, the Board finds that the post-service medical record in this case provides overwhelming negative evidence against these claims, indicating disorders that did not begin until years after service. The Board finds that the preponderance of the evidence is against service connection for hypertension and diabetes mellitus. 38 U.S.C.A. § 5107(b). The appeal is denied. The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by a letter dated in July 2002, the RO advised the veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. Thus, the Board finds that the RO has provided all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that the RO issued the VCAA notice prior to the adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO did not specifically ask the veteran to provide any evidence in his possession that pertains to the claim. Id. at 120-21. However, the Board is satisfied that the July 2002 VCAA notice and the January 2006 VCAA follow-up letter otherwise fully notified the veteran of the need to give VA any evidence pertaining to his claim, such that there is no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Moreover, neither the veteran nor his representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (the appellant bears the initial burden of demonstrating VA's error in the adjudication of a claim and how that error was prejudicial). The Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case). The Board notes that in a January 2006 supplemental statement of the case, the veteran was informed that a disability rating and effective date would be assigned if his claim was granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the duty to assist, the RO has secured the veteran's VA medical records and private medical records that can be obtained. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board notes that an etiological opinion has not been obtained. However, the Board finds that the evidence, discussed above, indicates that there is no competent medical evidence showing or indicating a nexus between service and the disorders at issue, warrants the conclusion that a remand for an examination or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2006). As service and post-service medical records provide no basis to grant the claims, and provides evidence against the claims, the Board finds no basis for a VA examination to be obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. The veteran was not diagnosed with the claimed disabilities for decades after leaving military service, and none of the medical evidence of record provides any indication that the disabilities are related to service. As such, the second and third requirements set forth in McLendon are not met. The Board is also satisfied as to compliance with its instructions from the January 2006 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The RO attempted to comply with the remand instructions by sending the veteran a letter and release form for Dr. D. D. in February 2006. The veteran returned releases for other doctors, but not for the doctor specified in the letter. ORDER Service connection for hypertension is denied. Service connection for diabetes mellitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs