Citation Nr: 0810365 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-02 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease, also claimed as secondary to Type II diabetes mellitus. 3. Entitlement to service connection for residuals of a stroke, also claimed as secondary to Type II diabetes mellitus. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the veteran's diabetes mellitus was incurred in or aggravated by his active service, or manifested to a compensable degree within one year following his separation from service, or is due to exposure to herbicides during his active service. 2. The competent medical evidence does not demonstrate that the veteran's coronary artery disease was incurred in or aggravated by his active service, or that coronary artery disease manifested to a compensable degree within one year following his separation from service. 3. The competent medical evidence does not demonstrate that the veteran's residuals from a stroke were incurred in or aggravated by his active service, or manifested to a compensable degree within one year following his separation from service. CONCLUSIONS OF LAW 1. Service connection for Type II diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 2. Service connection for coronary artery disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 , 3.310(a) (2007). 3. Service connection for residuals of a stroke is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 , 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice 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)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In October 2004 and February 2005, prior to the initial adjudication of the claims, the veteran was notified of the evidence not of record that was necessary to substantiate the claims. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claims. He was informed that VA would attempt to obtain his claims and determine what additional information was needed to process his claims, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. It was also requested that he provide evidence in his possession that pertained to the claims. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of these claims. The veteran was given notice of what type of information and evidence he needed to substantiate a claim for an increased rating in March 2006 and March 2007 should his service connection claims be granted. It is therefore inherent in the claims that the veteran had actual knowledge of the rating element of an increased rating claim. Therefore, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA- authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. VA has obtained the veteran's service medical records with the exception of records from the 125th Medical Detachment. VA requested these additional service medical records from the service department which indicated that the records could not be located. The Board is aware that in such a situation it has a heightened duty to assist a claimant in developing his or her claim. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit- of-the-doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board finds that VA is not obligated to obtain medical examinations in this case because the evidence does not establish that the veteran suffered an event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. A claimant with active service may be granted service connection for a disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The Board notes that a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g. Agent Orange), absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116 (a) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii) (2007). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The specified diseases include Type 2 diabetes. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, even if the veteran's disease is not subject to the presumption, he is not precluded from establishing direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). While the veteran does not assert that he served in Vietnam, he claims that he was exposed to herbicides in Korea. Specifically, he contends that as a wheel vehicle mechanic, he transported chemical drums to various locations for spraying in the DMZ. During transportation of the drums, one fell off the back of a truck and he had to recover it. He claims that he was nauseated and started coughing and was admitted to the 125th Medical Detachment at Camp Red Cloud in February 1967 where he was treated for two days. He stated that he was required to wash down the trucks after each of the transport operations and was never told what type of chemicals were in the drums. He alleges that the spraying of chemicals continued on his tour of duty in Korea which led to Type II diabetes mellitus and complications of the disease. In this case, the veteran did not serve on active duty in Vietnam, but rather in Korea. Thus, the veteran may not be presumed to have been exposed to Agent Orange in Vietnam, but he may nevertheless show that he was actually exposed to Agent Orange while in Korea. The Department of Defense has indicated that Agent Orange was used in Korea from April 1968 to July 1969, long after the veteran's release from active duty. VHA Directive 2000-027 (September 5, 2000). In this case the veteran's service personnel records show that he served in Korea from November 1966 to December 1967. While the veteran claims that he was exposed to herbicides during his service in Korea, there is no evidence that Agent Orange was used in Korea prior to April 1968. In addition, mere exposure to Agent Orange is not a compensable occurrence. The Board finds that there is no record of the veteran's exposure to herbicides in service, nor any record demonstrating that herbicides were tested, stored, transported, or sprayed in Korea during his period of service in Korea. The Board thus finds that the veteran was not presumptively exposed to herbicides during his military service, and is therefore not entitled to service connection for diabetes mellitus on a presumptive basis. The Board will therefore address the merits of the veteran's claim on alternate bases. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.304. Certain chronic diseases, including diabetes, arteriosclerosis, and organic diseases of the nervous system, may be presumed to have incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. For the showing of chronic disease in service, there is required a 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. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). 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 status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Secondary service connection may be found where a service connected disability aggravates another condition, that is, where there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Type II Diabetes Mellitus Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for Type II diabetes mellitus on a direct or presumptive basis. The service medical records are void of any findings, complaints, symptoms, or diagnoses attributable to Type II diabetes mellitus. Urinalysis tests performed at enlistment in February 1966, and at separation in June 1968 were negative for sugar. Private medical records show treatment of Type II diabetes mellitus. Records dated in January 1998 show a diagnosis of Type 2 diabetes mellitus. VA medical records dated in December 2002 show a diagnosis and treatment of Type II diabetes mellitus. Records dated in October 2005 indicate that he was provided with insulin a result of high glucose readings. Records dated in January 2007 show continued treatment of the disease. The veteran's post-service medical records are negative for any diagnosis of Type II diabetes mellitus within one year of separation from active duty. In fact, the post-service medical records are negative for a diagnosis of Type II diabetes mellitus until many years after separation from active service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the competent medical evidence shows that the veteran now suffers from Type II diabetes mellitus, the evidence does not show that the current Type II diabetes mellitus was incurred in or aggravated by service. Furthermore, there is no competent medical opinion that relates his Type II diabetes mellitus to active duty. In the absence of competent medical evidence linking any current Type II diabetes mellitus to service, service connection must be denied. While the veteran asserts that he was exposed to herbicides in Korea, service personnel records show that he served in Korea prior to April 1968. Therefore, the presumption of service connection based on herbicide agents does not apply. 38 U.S.C.A. § 1116 (a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.307 (a)(6)(iii)(2007). In the absence of competent medical evidence linking Type II diabetes mellitus to service or showing any Type II diabetes mellitus to a compensable degree within one year following separation from service, service connection must be denied. The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his current Type II diabetes mellitus began during, or is a result of, his service. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim. The evidence does not show that Type II diabetes mellitus was incurred in or aggravated by service; is presumed to be the result of exposure to herbicides since the veteran did not serve in Vietnam and served in Korea prior to April 1968; or manifested to a compensable degree within one year following the veteran's separation from service. Therefore, service connection for Type II diabetes mellitus, also claimed as due to herbicide exposure, is denied. Coronary Artery Disease Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for coronary artery disease (CAD) on a direct or presumptive basis. The veteran's service medical records are void of findings, complaints, symptoms, or diagnoses attributable to CAD. Reports of the February 1966 entrance examination and June 1968 separation examination reflect normal clinical evaluations of the heart and vascular system. Private medical records dated in January 1997 show that the veteran had a normal heart and vascular system. In February 1998, cardiac catheterization testing showed that his coronary arteries were normal. He had chest pain of an undetermined etiology. VA medical records dated in December 2002 reflect a diagnosis of CAD status post stent placement which was performed in 2001. An August 2006 report states that he had no symptoms of CHF (congestive heart failure). Records dated in January 2007 show continued treatment of CAD. The veteran's post-service medical records are negative for any diagnosis of CAD within one year of separation from active duty. In fact, the post-service medical records are negative for a diagnosis of CAD until many years after separation. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the competent medical evidence does show that the veteran now suffers from CAD the evidence does not show that the current CAD was incurred in or aggravated during service. Furthermore, there is no competent medical opinion that relates CAD to active duty. In the absence of competent medical evidence linking any current CAD to service, service connection must be denied. With respect to the veteran's claim for service connection for CAD as secondary to Type II diabetes mellitus, the Board notes that secondary service connection presupposes the existence of an established service-connected disability. In this case, the veteran is not service-connected for Type II diabetes mellitus. Thus, there can be no secondary service connection for any condition allegedly due to Type II diabetes mellitus. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. Sabonis v. Brown, 6 Vet. App. 426 (1994). As there is no legal basis for an award of secondary service connection for CAD, the claim for secondary service connection must be denied as a matter of law. The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his current CAD began during, or is a result of, his service. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim. The evidence does not show that coronary artery disease was were incurred in or aggravated by service, or manifested to a compensable degree within one year following the veteran's separation from service. Therefore, service connection for coronary artery disease, is denied. Residuals of a Stroke Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a stroke on a direct or presumptive basis. The veteran's service medical records are void of findings, complaints, symptoms, or diagnoses attributable to a stroke. VA medical records dated in December 2002 reflect that the veteran had a stroke with left hemiparesis five years ago. In August 2003, he complained of increased weakness of the left arm, decreased memory, and frontal headaches. The assessment was rule out intracranial mass lesion. Records dated in March 2005 note that he did not have another stroke or TIA (transient ischemic attack). Records dated in January 2007 indicate that the last carotid doppler was performed in January 2006 and that he had bilateral plaque disease with less than 50 percent ICA (internal carotid artery) stenoses. The veteran's post-service medical records are negative for any diagnosis of a stroke or residuals thereof within one year of separation from active duty. In fact, the post- service medical records are negative for a diagnosis of a stroke until many years after separation. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the competent medical evidence does show that the veteran now suffers from residuals of a stroke the evidence does not show that the current residuals were incurred in or aggravated during service. Furthermore, there is no competent medical opinion that relates a stroke or residuals of a stroke to active duty. In the absence of competent medical evidence linking any current residuals of a stroke to service, service connection must be denied. With respect to the veteran's claim for service connection for residuals of a stroke as secondary to Type II diabetes mellitus, the Board notes that secondary service connection presupposes the existence of an established service-connected disability. In this case, the veteran is not service- connected for Type II diabetes mellitus. Thus, there can be no secondary service connection for any condition allegedly due to Type II diabetes mellitus. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. Sabonis v. Brown, 6 Vet. App. 426 (1994). As there is no legal basis for an award of secondary-service connection for residuals of a stroke, the claim for secondary service connection must be denied as a matter of law. The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his current residuals of a stroke began during, or are a result of, his service. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim. The evidence does not show that a stroke or any residuals thereof were incurred in or aggravated by service, or manifested to a compensable degree within one year following the veteran's separation from service. Therefore, service connection for residuals of a stroke, is denied. ORDER Service connection for Type II diabetes mellitus, to include as due to herbicide exposure, is denied. Service connection for coronary artery disease, also claimed as secondary to Type II diabetes mellitus, is denied. Service connection for residuals of a stroke, also claimed as secondary to Type II diabetes mellitus, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs