Citation Nr: 0000114 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 99-04 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes, to include being secondary to the veteran's service-connected residuals of bilateral frostbite of the feet with peripheral neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran had active military service from April 1950 to April 1953. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. The issue of entitlement to a total disability rating based on individual unemployability due to the veteran's service- connected disabilities , raised by the appellant in his notice of disagreement, dated February 5, 1998, has not been adjudicated by the RO. Accordingly, this issue is not in appellate status, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran was not diagnosed as suffering from diabetes mellitus while he was in service. 3. The veteran now has diabetes mellitus. 4. Although the veteran now suffers from diabetes, medical evidence has not been submitted that etiologically links the veteran's diabetes with the residuals of bilateral frostbite with peripheral neuropathy. CONCLUSION OF LAW The claim for entitlement to service connection for diabetes mellitus, to include being secondary to the veteran's service-connected residuals of bilateral frostbite of the feet with peripheral neuropathy, is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999); Edenfield v. Brown, 8 Vet. App. 284 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that service connection should be established for diabetes mellitus, and that this disorder is the result of having suffered frostbite while he was in service. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). However, before the Board can make a determination as to whether service connection may be granted, the Board must determine whether the veteran has presented a well-grounded claim. A service connection claim must be well-grounded. A well-grounded claim requires more than mere allegations; it must be plausible and with merit. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990). For a claim to be well-grounded, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is "plausible" is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Where such evidence is not submitted, the claim is not well- grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, if a claim is not well-grounded, then the Secretary no longer has a duty to assist a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question of whether or not a claim is well-grounded is significant because if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In this regard, the United States Court of Appeals for Veterans Claims, hereinafter the Court, has observed that the statutory prerequisite of submitting a "well-grounded" claim "reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay claims which--as well-grounded-- require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones." Grivois v. Brown, 6 Vet. App. 136, 139 (1994). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, 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. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Furthermore, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Considering these criteria, the Board finds that the veteran has not met his statutory burden of submitting evidence of a well-grounded claim for service connection for diabetes mellitus, to include being secondary to the veteran's service-connected residuals of bilateral frostbite of the feet with peripheral neuropathy. The veteran's service medical records are negative for any findings of or treatment for diabetes mellitus. Moreover, they are silent as to any complaints, symptoms, manifestations, or prodromas of diabetes mellitus. Therefore, the Board may only conclude that this condition did not exist while the veteran was in service. In conjunction with his claim, the veteran has been seen by a VA physician for the purpose of determining whether the veteran now suffers diabetes mellitus and the etiology of said condition. See General Medical Exam, October 23, 1997; Cold Injury Protocol Examination, April 21, 1998, and May 7, 1998. On each occasion, while the veteran has been positively diagnosed as having diabetes mellitus, said disability has not been medically linked with the residuals of bilateral frostbitten feet (his service-connected disability). Specifically, the doctor has stated that the veteran's diabetes mellitus was not caused by or the result of the veteran's frostbitten feet or a residual thereof. Thus, there are only the veteran's contentions that his diabetes mellitus is the result of his service-connected disabilities. For a claim to be well-grounded, there must be competent medical evidence of a current disability, the occurrence of a condition or disability while in service, and a nexus between an inservice injury or disease and a present disability. Caluza v. Brown, 7 Vet. App. at 506. The only evidence to support his claim that his diabetes mellitus is related to his service-connected foot disability is the assertions made by the veteran himself. None of the medical evidence supports the veteran's contentions. Yet, the veteran has pointed to a newspaper article, that quotes a Dr. Susan Mather, Chief, Public Health and Environmental Hazards Officer, Veterans Health Administration, Department of Veterans Affairs, and a VA Information Letter generated by the Undersecretary for Health, Department of Veterans Affairs, to support his claim. , In the article, and per the unnamed author of the article, Dr. Mather reportedly stated that diabetes was a long-term complication of frostbite. The letter from the Undersecretary's letter mirrors Dr. Mather's statement. Although the veteran has submitted this evidence in good faith and on their face, they might be sufficient to well- ground the veteran's claim, the Court has said that medical evidence which establishes a nexis must demonstrate a casual relationship between the appellant's condition and the disability written about in the medical treatise or paper. See Sacks v. West, 11 Vet. App. 314 (1998). That is, the veteran's statements, taken together with published medical authorities, do not provide the requisite medical evidence to demonstrate a causal relationship between the veteran's diabetes and his service-connected disability. The medical articles as evidence must demonstrate a connection between the present condition and the service-connected disorder. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In other words, a medical article containing a generic statement regarding a possible link between a condition suffered from while in service and the veteran's present condition does not satisfy the medical nexus element of a well-grounded claim. See Sacks v. West, 11 Vet. App. 314 (1998) (a medical article that contained a generic statement regarding a possible link between a service- incurred mouth blister and a present pemphigus vulgaris condition, did not satisfy the nexus element of a well- grounded claim). Hence, given the lack of clinical evidence that etiologically links the veteran's diabetes mellitus with his other disabilities, or, for that matter, his military service, it is the decision of the Board that the veteran has not presented a well-grounded claim. Mere contentions of the veteran, no matter how well-meaning or sincere, without supporting evidence, do not constitute a well-grounded claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993) Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (Where the determinative issue involves medical causation or a medial diagnosis, competent medical evidence to the effect that claim is "plausible" or "possible" is required.). Therefore, the claim fails and service connection for diabetes mellitus, to include being secondary to the veteran's service-connected residuals of frostbite of the feet with peripheral neuropathy, is denied. ORDER Entitlement to service connection for diabetes, to include being secondary to the veteran's service-connected residuals of bilateral frostbite of the feet with peripheral neuropathy, is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals Pursuant to 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999), and subsequently Tirpak v. Derwinski, 2 Vet. App. 609 (1992), a well-grounded claim requires more than just a mere allegation. In Tirpak, the United States Court of Veterans Appeals (Court), held that the appellant in that case had not presented a well- grounded claim as a matter of law. The Court pointed out that ". . . unlike civil actions, the Department of Veterans Affairs (previously the Veterans Administration) (VA) benefits system requires more than an allegation; the claimant must submit supporting evidence." Tirpak, 2 Vet. App. at 611. Associated Press Wire Service, Veterans with Frostbite Get Paid, The Orlando Sentinal, April 7, 1997, at A-5. File No. IL 10-96-030, Under Secretary for Health's Information Letter, Recommendations for the Care and Examination of Veterans with Late Effects of Cold Injuries. See also Beausoleil v. Brown, 8 Vet. App. 459, at 463 (1996), in which the Court said that ". . . the letter contains only a generic statement about the possibility of a link between chest trauma and restrictive lung disease. Such a statement is too general and inconclusive to make the claim well grounded in the appellant's case."