Citation Nr: 1138378 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 09-41 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include due to herbicide exposure. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for a thyroid disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service in the United States Air Force from October 1972 to February 1974. These matters come before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas, which denied service connection for diabetes mellitus and hepatitis C, and from a June 2010 rating decision which denied service connection for a thyroid disability. In February 2010 a local hearing was held. In May 2011 a Board hearing was held at the RO before the undersigned; the transcripts are of record. The issue of service connection for a thyroid disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Personnel records show that the Veteran served in the U.S. Air Force with no foreign service. 2. The Veteran was not exposed to herbicides in service. 3. Diabetes mellitus was not first manifest during service, or within a year after discharge from service. 4. The evidence of record does not show that the Veteran's diabetes mellitus is related to any disease or injury incurred in or aggravated by service. 5. Hepatitis C was not first manifest during service. 6. The evidence of record does not show that the Veteran's hepatitis C is related to any disease or injury incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011). 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). May 2008, August 2008 and March 2010 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran was not examined by VA in conjunction with the claim of service connection for diabetes mellitus or hepatitis C; however, no such examination is necessary in this case because the evidence of record does not indicate that either disability or symptoms of the disability "may be" associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Assistance Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Diabetes Mellitus The Veteran is currently diagnosed with diabetes mellitus, type II. The Veteran does not contend, nor does the record show, any evidence of a direct relationship between diabetes mellitus and service. There is no evidence of diabetes mellitus, or symptoms of diabetes mellitus, in service or upon exit. The Veteran does not contend, nor is there any evidence of continuity of symptomatology of diabetes mellitus from service or during the 36 years before the disability was shown. See Savage v. Gober, 10 Vet. App. 488 (1997). As such there is no basis for direct service connection. Diabetes mellitus is a chronic disease which may be presumed to have been incurred in service, if it becomes manifest to a degree of ten percent or more within one year of termination from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The Veteran does not contend, nor does the record reflect, that the Veteran's diabetes mellitus developed to degree of 10 percent within one year from the date of termination, February 1974, therefore 38 C.F.R §3.309(a) is not for application. Diabetes mellitus will be presumptively service connected if there was exposure to herbicides, i.e. Agent Orange, and the disease manifests to a degree of 10 percent or more at any time. 38 C.F.R. §3.309(e). Regulations establish that veterans who served in certain identified locations, for example the Republic of Vietnam, are presumed to have been exposed to herbicides in service. 38 C.F.R. § 3.307(a)(6). As the Veteran did not serve in any of these locations he is not presumed to have been exposed to herbicides in service. However, if the Veteran shows that he was actually exposed to Agent Orange during service, then he is eligible for service connection for diabetes mellitus as a presumptive disease. 38 C.F.R. § 3.309(e). The Veteran contends that he was exposed to Agent Orange in service. At the Board hearing the Veteran testified that while stationed at Fort McChord in Washington State he was at a meeting at a remote edge of the base. Near the meeting location there were large 55 gallon blue drums with a chain link fence surrounding them. The Veteran testified that he did not know what was in the drums, "what is in those drums I can't honestly tell you", but he contends that it was Agent Orange. He reported that he didn't think it was diesel as they were allowed to smoke. The Veteran testified that he was never told that Agent Orange was in the drums. At the February 2010 local hearing the Veteran also testified that during the meeting he was near blue and white or green and white drums and that he did not know the contents of the drums, nor even whether they were empty or full. The Veteran's contentions that the blue or green 55 gallon drums which he was in proximity to contain Agent Orange are unfounded. The Veteran was never told what was in those specific drums, nor was he told that Agent Orange was stored anywhere on base. The Department of Defense has acknowledged that Agent Orange and other herbicides used in Vietnam were tested or stored elsewhere, including some military bases in the United States. However there is no record of any herbicide storage at Fort McChord, Washington. The only recorded storage or use of any herbicides in the state of Washington was in 1950 to 1951 when Agent 2, 4-D was used in water studies in Prosser, Washington. Even assuming arguendo that Agent Orange was in the drums near the Veteran during the meeting, he has not argued that he was actually exposed to Agent Orange. He does not contend that he touched any liquid or inhaled any fumes. The Veteran did not report touching the drums, or touching any liquid near the drums, or that the drums were opened and he breathed in fumes. He does not even contend that areas of the base were being actively sprayed or that the contents of the drums were actively used, never mind that he was present in areas where any sort of spraying had occurred. There is no competent evidence that the Veteran was exposed to Agent Orange or any other herbicide in service. Therefore he is not eligible for service connection on a presumptive basis for diabetes mellitus. The preponderance of the evidence is against the claim for diabetes mellitus, to include as secondary to herbicide exposure; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. Hepatitis C The record reflects a current hepatitis C diagnosis. The Veteran contends that he contracted hepatitis C in service due to air gun vaccinations. He has denied any other risk factors; to include blood transfusion, IV drug use, exposure to blood/blood products, multiple sexual partners, hemodialysis, tattoo or body piercing, cocaine use, unexplained liver disease or history of alcohol abuse; either during service or post-service. The service treatment records contain no evidence of the Veteran being diagnosed with or treated for hepatitis C in service. A copy of a Board decision for another veteran who was granted service connection for hepatitis C secondary to air gun injection was submitted by the Veteran; however Board decisions are only binding as to the case decided and are nonprecedential. 38 C.F.R. § 20.1303. In this case, the Veteran has submitted a February 2005 article regarding alleged statements by a VA doctor regarding the risk of infection from air guns and the VA response. In Fast Letter 04-13 (June 29, 2004), VA noted that the doctor had not in fact made the statement attributed to him. The Fast Letter concluded that "[d]espite the lack of any scientific evidence to document transmission of HCV with airgun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the airgun was the source of the veteran's hepatitis C." In a March 2010 letter the Veteran's VA primary physician, Dr. OZ, reported that the Veteran was recently diagnosed with hepatitis C. He also reported reviewing the Veteran's risk factors for hepatitis C and stated that his best opinion was that it is "highly plausible" that the Veteran ha[s] contracted hepatitis C from an air gun injection while in the military. He also excluded a dog bite as a source of infection. Although Dr. OZ provided a positive opinion, the rationale is inadequate to support the conclusion as it only states that the risk factors were reviewed. He failed to detail what risk factors the Veteran had identified, and did not provide any basis for the identification of air gun injections as a risk factor. For example, in testimony the Veteran has reported exposure to injections when seeking treatment for a knee problem, as well as when seeing a dentist. These were not mentioned by Dr. OZ, and it is unknown if these were reported to him. There is no "full discussion" of risk factors, and the rationale behind identifying air gun injection as the source of infection, as opposed to the dog bite mentioned in passing without rationale, is inadequate. An opinion without an adequate rationale is of no probative value. Furthermore, Dr. OZ's opinion that it is "highly plausible" that the Veteran contracted hepatitis C from an air gun does not meet the required evidentiary standard that the Veteran's hepatitis C was "more likely than not" due to an air gun injection in service; the opinion merely states that it is plausible. That it is "highly" so does not indicate that it is at least as likely as not. As such, there is no probative opinion of record relating the Veteran's hepatitis C to air gun injections in service. It is unclear if the Veteran is contending that he sustained a dog bite in service which caused his hepatitis C. However, even assuming arguendo that the Veteran was bitten by a dog in service, Dr. OZ opined that the dog bite the Veteran sustained would not have caused hepatitis C. The lack of any rationale again renders this opinion nonprobative. The Veteran's own expressed opinion, that his hepatitis C was caused by an air gun injection is not competent. While the Veteran is competent to report his symptoms of hepatitis C, and could report a continuity of symptoms since service -which he has never reported - he lacks the specialized knowledge and training required to offer an opinion on a nexus in this case where the relationship cannot be observed through the five senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Hepatitis C was not shown in service or manifested to a compensable degree within one year of service discharge. There is no competent and probative evidence of record relating the current diagnosis to service. The preponderance of the evidence is against the claim; there is no doubt to be resolved. The absence of evidence is not a finding of equipoise in the evidence. Service connection for a hepatitis C is not warranted. ORDER Service connection for diabetes mellitus, type II, to include due to herbicide exposure, is denied. Service connection for hepatitis C is denied. REMAND At the May 2011 Board hearing, the Veteran expressed his disagreement with the denial of service connection for a thyroid disability in a June 2010 rating decision. When the hearing was transcribed the Veteran's verbal disagreement became a written communication of a notice of disagreement with the issue of service connection for a thyroid disability. See 38 C.F.R. §§ 20.201 , 20.302(a). A statement of the case addressing this issue has not yet been issued, therefore a remand is necessary. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case, and notify the Veteran of his appellate rights, with respect to the issue of entitlement to service connection for a thyroid disability. 38 C.F.R. § 19.29. In the notice and statement of the case, remind the Veteran that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the June 2010 rating decision denying service connection must be filed. 38 C.F.R. § 20.202. If the Veteran perfects an appeal as to this issue, return the case to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs