Citation Nr: 0420754 Decision Date: 07/29/04 Archive Date: 08/05/04 DOCKET NO. 03-02 814A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for diabetes mellitus type II, to include as secondary to exposure to Agent Orange. ATTORNEY FOR THE BOARD Benjamin Tuite, Law Clerk INTRODUCTION The veteran had active service from November 1961 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2001 by the Department of Veteran Affairs Boise, Idaho Regional Office (RO), which denied service connection for diabetes mellitus type II. FINDINGS OF FACT The veteran's diabetes mellitus did not originate during active service or within one year thereof, and is not otherwise related to service; the veteran did not serve in Vietnam or in the waters offshore of Vietnam. CONCLUSION OF LAW The veteran does not have diabetes mellitus which is the result of disease or injury incurred in or aggravated by active duty, nor may the incurrence in service of such disability be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Requirements A VCAA notice letter consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." The Board finds that the notice requirements of the VCAA have been satisfied in the instant case. In an October 2001 letter, VA informed the veteran of what the evidence must show to establish service connection for diabetes mellitus. In that letter, the veteran was informed by VA that VA was responsible for getting his service medical records, employment records, and records from other Federal agencies. VA told the veteran that it was his responsibility to inform VA of any other relevant records that he knew of that would help adjudicate his claim. Additionally, in May 2003, the RO informed the veteran of the action they had taken on the case and requested that he submit evidence to support his claim that he served in Vietnam. In light of the foregoing, the Board finds that the RO's letter in October 2001 and May 2003 complies with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); and Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. June 24, 2004). In the instant case, this was done. The veteran has been provided every opportunity to submit evidence and argument in support of his claim, and to respond to the October 2001 VA notice. Throughout the appeal process, VA has made reasonable efforts to obtain relevant records identified by the veteran. Specifically, VA has associated with the claims file the veteran's service medical records and VA treatment records. The veteran has not identified any other evidence pertinent to this claim that is not already of record. Given the foregoing, the Board concludes that VA has satisfied the notice and assistance provisions as found in the VCAA. As such, the veteran is not prejudiced by an adjudication of his claims at this juncture. II. Background The veteran's service medical records are negative for a diagnosis of diabetes mellitus type II. Service personnel records show that the veteran had active military service from November 1961 to November 1965. He had 8 months and 28 days of foreign and/or sea service. In January 1964 he had 170 days of temporary duty and in April 1965 he had 98 days of temporary duty. The locations of these duties were not reported. The section of his DD 214 pertaining to his decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized listed AFGCM and small arms expert marksman ribbon. A service medical record dated in June 1965 (which was during one of the veteran's temporary duty assignments), shows that the veteran was located at the George Air Force Base in California.. VA outpatient treatment report notes show that from 1998 to 2001 the veteran was treated for diabetes mellitus. The veteran, in August 2001, filed a claim of service connection for diabetes mellitus, as secondary to exposure to Agent Orange. He stated that he developed the disease in 1997. In February 2002, the National Personnel Records Center reported that there was no Vietnam service found on file for the veteran. The veteran submitted a statement in May 2002 in which he claimed that he was sent on temporary duty to Da Nang Air Base in Vietnam to work on airframes and sheet metal. He stated that he was there from June 1965 to the first of November 1965. He stated that he did not have any copies of any orders to Vietnam but that he knew that he was in country in Vietnam. In April 2003, the veteran stated that he was sent on temporary duty twice: once in Madrid, Spain for 170 days and the second temporary assignment was in Vietnam for 98 days. The veteran, in May 2003, submitted an Internet report regarding the service duties of a Major General. III. Analysis The veteran claims that service connection is warranted for diabetes mellitus type II. In this regard, he asserts that his current diabetes mellitus type II is related to exposure to herbicides while serving in Vietnam. 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). Certain chronic diseases, such as diabetes mellitus, which become manifest to a compensable degree within the year after service, will be rebuttably presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Veterans who served in the Republic of Vietnam from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to an herbicide unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Diabetes mellitus type II shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). The veteran does not allege, and service records do not show, that diabetes mellitus was manifested during active service. Service medical records are completely negative for any complaints, finding, or diagnosis of diabetes mellitus. The veteran claims that he was first diagnosed as having diabetes mellitus in 1997, several years following his November 1965 service discharge. He argues that his diabetes mellitus, type II is the result of exposure to herbicides in service. He claims that during a temporary duty assignment in April 1965, he was sent to Vietnam and as a result he is presumed to have been exposed to herbicides . The competent medical evidence of record currently reflects a diagnosis of diabetes mellitus which was first diagnosed years after service discharge. Since diabetes mellitus was not diagnosed within one year of the veteran's service discharge, presumptive service connection in not warranted under the provisions of 38 C.F.R. § 3.307, 30309(a). Moreover, there is no competent medical evidence even suggesting a link between the currently diagnosed diabetes mellitus and the veteran's active service from November 1961 to November 1965. As such, service connection on a direct basis is not warranted for the disability. The Board acknowledges that diabetes mellitus is a disease presumptively associated with exposure to certain herbicide agents. However, in this case, there is no competent evidence that the veteran was actually exposed to herbicide agents, to include Agent Orange, while in service. Although the veteran contends that he was assigned to temporary duty in Vietnam, his DD 214 does not show Vietnam service and the NPRC was unable to confirm any Vietnam service. The Board finds that the negative response from the NPRC constitutes the most probative evidence concerning the veteran's duty locations. As such, there is no competent evidence of service actually in Vietnam. Therefore, it is not presumed that he was exposed to herbicides while in service. Consequently, presumptive service connection for diabetes mellitus, type II, based on exposure to herbicides is not warranted. For the foregoing reasons, the Board finds that the claim for service connection for diabetes mellitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for diabetes mellitus type II is denied. ____________________________________________ K. Osborne Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2