Citation Nr: 0814213 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-35 595A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for upper and lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2005 RO decision, which denied a claim for service connection for diabetes mellitus, type II associated with herbicide exposure, a claim for service connection for hypertension as a result of exposure to herbicides, and a claim for service connection for upper and lower extremity peripheral neuropathy, secondary to diabetes mellitus, type II. The Board notes that the RO characterized the veteran's claim for service connection for hypertension in both the July 2005 rating decision and the November 2005 statement of the case (SOC) as a claim for service connection for hypertension as a result of exposure to herbicides. However, in both the rating decision and the SOC, the RO adjudicated the claim as a claim for service connection for hypertension, secondary to diabetes mellitus, type II. Therefore, the Board will adjudicate this claim as it was adjudicated by the RO, as a claim for service connection on a secondary basis. In October 2007, a video hearing was held before the undersigned Veterans Law Judge at the Houston, Texas RO. A transcript of that proceeding has been associated with the claims folder. In April 2008, the veteran's motion to advance his claims on the Board's docket was granted. See 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the veteran, the evidence of record establishes that the veteran did travel to the Republic of Vietnam while on active duty during the Vietnam era; thus, exposure to herbicides while serving on active duty is presumed. 2. The competent medical evidence of record establishes that the veteran has a current diagnosis of diabetes mellitus, type II. 3. The veteran's hypertension is shown by competent medical evidence to be etiologically related to the veteran's service-connected diabetes mellitus, type II. 4. The veteran's upper and lower extremity peripheral neuropathy is shown by competent medical evidence to be etiologically related to the veteran's service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). 2. Service connection for hypertension is warranted. See 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 3. Service connection for upper and lower extremity peripheral neuropathy is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) In regards to the veteran's claims for service connection, the benefits sought on appeal have been granted, as discussed below. As such, the Board finds that any error related to the VCAA on these claims is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a) (2007). The United States Court of Appeals for Veterans Claims (Court) has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection was recently amended. The intended effect of this amendment is to conform VA regulations to the Allen decision. 71 Fed. Reg. 52, 744 (Sept 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Absent a causal relationship, these provisions do not apply. Certain diseases, to include diabetes mellitus and hypertension, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2007). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2007). The diseases alluded to above include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2007). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). 1. Entitlement to service connection for diabetes mellitus, type II, as a result of in-service exposure to herbicides. The veteran contends that he has diabetes mellitus, type II as a result of in-service exposure to agent orange. See Claim, November 2004. Specifically, the veteran alleges that, while serving in Thailand, he visited his brother, who was stationed in Vietnam, for 3 days on Rest and Recuperation Leave (R&R). See hearing transcript, October 2007. The veteran claims, that during this time, he was exposed to herbicides or agent orange. Id. The veteran's personnel records indicate that he served in Thailand for 13 months, from October 1968 to November 1969. There is no affirmative indication in these records that the veteran stepped foot onto Vietnam for any period of time. Significantly, however, the evidence of record also includes his brother's DD-214 Form, reflecting that he served in Vietnam from October 1968 to October 1969. The Board acknowledges that the claims folder contains no evidence confirming the veteran's presence in Vietnam. However, the veteran has never asserted to the RO or the Board that he had any actual tour of duty in Vietnam; rather, he asserts that he visited his brother while on R&R, and that his brother was serving in Vietnam. In this regard, the veteran is competent to report such matters as where and with whom he spent his Rest and Recuperation Leave, and there is nothing in his personnel records contradicting him. Furthermore, his brother's DD-214 Form does indicate that he served in Vietnam at the precise time that the veteran was stationed in Thailand. Therefore, as there is no reason to doubt the veteran's credibility, and, in fact, his reports appears entirely possible given the nature and circumstances of both his and his brother's service, the Board concedes that the veteran was present while on active duty in the Republic of Vietnam during the Vietnam Era. The Board notes in passing that the length of time spent in Vietnam is not significant under the regulations governing presumptive service connection; rather, it need only be established that the veteran was present at some point while on active duty in the Republic of Vietnam during the Vietnam Era. A review of the claims folder reflects that the veteran has a current diagnosis of diabetes mellitus, type II. In a January 2005 VA examination report, an examiner diagnosed the veteran with diabetes mellitus, type II, and acknowledged that the veteran has been treated for diabetes mellitus, type II since November 2004. Therefore, as in-service exposure to herbicides has been conceded, and the veteran clearly has a current a diagnosis of diabetes mellitus, type II, the Board concludes that the veteran is entitled to a grant of service connection for his diabetes mellitus, type II on a presumptive basis. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. The veteran alleges that he currently has hypertension as the result of his active duty service. See veteran's statement, October 2005. The Board notes that the veteran has a current diagnosis of hypertension. See VA examination report, January 2005. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). The Board notes that the evidence of record remains silent for any complaints, treatment, or diagnosis of hypertension during service or within one year of discharge from active duty. In addition, no competent medical opinion has related the veteran's hypertension directly to his active duty service. The claims folder does, however, contain a VA opinion, based on examination of the veteran and review of certain medical records, which specifically states that the veteran's hypertension is at least as likely as not associated with diabetes mellitus. See VA examination report, January 2005. The claims folder contains no other contradictory opinions or evidence. The Board is cognizant that there is a temporal discrepancy noted in that report in that the examiner indicated that the hypertension was found in 1998, but the diabetes was not discovered until 2004. The presence of hypertension for six years prior to diabetes could certainly call into question the subsequent opinion indicating that there was an association between the two. The Board is also cognizant that when a disease or injury for which service connection has not been granted is aggravated by a service-connected condition, the veteran shall be compensated for the disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). It is conceivable that the examiner's opinion that there was an "association" between the disabilities was intended to suggest a relationship of aggravation, rather than causation. However, the examiner also noted that the hypertension and diabetes mellitus were incidental findings made on routine examination, apparently suggesting that it would be difficult to opine as to the precise date of onset of either disability. Therefore, having resolved doubt in favor of the veteran, the Board will interpret the examiner's opinion as being one of either causation rather than aggravation, or of the examiner being unwilling to opine as to the precise degree of aggravation present. Therefore, the veteran's claim of service connection for hypertension may be granted on a secondary basis. 3. Entitlement to service connection for upper and lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II. The veteran alleges that he currently has upper and lower extremity peripheral neuropathy as the result of his active duty. See veteran's statement, October 2005. The Board notes that the veteran has been diagnosed with mild sensory peripheral neuropathy of the upper and lower extremities. See VA examination report, February 2005. As mentioned above, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). The Board notes that the veteran's service medical records remain silent for any complaints, treatment, or diagnosis of peripheral neuropathy during active duty. In addition, no competent medical opinion has related his upper and lower extremity peripheral neuropathy directly to his active duty service. The claims folder does, however, contain a VA opinion, based on examination of the veteran and review of certain medical records, which specifically states that the history and findings are consistent with a mild sensory peripheral neuropathy of the upper and lower extremities most likely due to diabetes mellitus. See VA examination report, February 2005. The claims folder contains no other contradictory opinions or evidence. Therefore, as the competent medical evidence of record reflects that the veteran's peripheral neuropathy of the upper and lower extremities is related to his service- connected diabetes mellitus, type II, service connection may be granted on a secondary basis. ORDER Entitlement to service connection for diabetes mellitus, type II, as a result of in-service exposure to herbicides is granted. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II is granted. Entitlement to service connection for upper and lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, type II is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs