Citation Nr: 0814223 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-27 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure. 2. Entitlement to service connection for skin rash, to include as secondary to herbicide exposure. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from February 1971 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In connection with this appeal, by a July 2006 communication, the veteran requested a Travel Board hearing. However, by communication received in September 2006, the veteran withdrew his request for such hearing. See 38 C.F.R. §§ 20.702(d); 20.704(d). FINDINGS OF FACT 1. The veteran did not serve in Vietnam and the record does not otherwise establish that he was exposed to Agent Orange while serving in South Korea as he did not serve between April 1968 to July 1969, the dates confirmed by the Department of Defense (DOD) when there could have been exposure to Agent Orange. 2. Diabetes mellitus was not affirmatively shown to have had onset during service; diabetes mellitus was not manifested to a compensable degree within one year from the date of separation from service; diabetes mellitus, first diagnosed after service, is unrelated to an injury, disease, or event of service origin. 3. The veteran does not currently have a disability manifested by skin rash. CONCLUSIONS OF LAW 1. Diabetes mellitus was neither incurred in service, nor may it be presumed to have been incurred during service. The presumption of exposure to Agent Orange does not apply in this case. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. A skin disorder was neither incurred in service, nor may it be presumed to have been incurred during service. The presumption of exposure to Agent Orange does not apply in this case. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, letters dated in November 2004 and December 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters also informed the veteran that additional information and evidence was needed to support his claims and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claims for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, the RO provided him Dingess notice in the May 2006 statement of the case (SOC) and he did not provide any additional evidence in response to the SOC to warrant readjudicating his claim and providing another SSOC. See, e.g., Medrano v. Nicholson, 21 Vet. App. 165, 172 (2007) (where after VA provides a content-compliant VCAA notice (on all requisite notice elements) - albeit in an untimely manner - and a claimant subsequently informs VA there is no further evidence to submit, the failure by the RO to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication would be no different than the previous adjudication). The Board also concludes that VA's duty to assist has been satisfied. The veteran's VA treatment records are in the file and private medical records identified by the veteran have been obtained to the extent possible. The veteran has at no time referenced available outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. In this case, neither examination nor opinion is needed on the claim because there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131. Certain diseases, to include diabetes mellitus, 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. § 1116; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of (1) a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). 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, and has a disease listed in 38 C.F.R. § 3.309(e), 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations. Service connection for listed diseases will be presumed if they are manifest to a compensable degree within specified periods any time after service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313(a). Also during the Vietnam era, Agent Orange was used for a limited period of time in Korea. Specifically, according to information shared by the United States Department of Defense (DOD) with VA, Agent Orange was used along the demilitarized zone (DMZ) in Korea between April 1968 and July 1969. DOD data also indicates that fields of fire between the front line defensive positions and the south barrier fence were defoliated. The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line." Information received by VA from DOD does not indicate that herbicide was sprayed in the DMZ itself. While the presumption of exposure to Agent Orange only applies to veterans who served in Vietnam, a veteran's service in Korea and other areas outside of Vietnam in which DOD has confirmed the use of herbicide agents may be considered for purposes of establishing a claim for direct service connection. The Board notes that the veteran did not serve in the Republic of Vietnam, but in Korea. Diseases that are related to herbicide exposure include chloracne or other acneform diseases consistent with chloracne, type II 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). Furthermore, the United States Court of Appeals for the Federal Circuit has held that, even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). 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 claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the veteran's medical records include an October 2005 Agent Orange registry examination report which notes that he was diagnosed with type II diabetes mellitus about three years previously. A current diagnosis of diabetes mellitus, type II, is therefore established. Nevertheless, service connection for diabetes mellitus is denied for the reasons below. To afford the veteran every possible consideration, the Board first considers the veteran's claim of service connection for diabetes mellitus, type II, on a direct basis. The veteran's service medical records do not reflect any complaints, findings, treatment, or diagnoses of diabetes mellitus. As noted above, the first record of the veteran's diagnosis of diabetes mellitus comes from an October 2005 VA Agent Orange examination report which notes that he had been diagnosed with type II diabetes mellitus about three years previously. Thus, the initial clinical diagnosis of diabetes was not until 2002, approximately 30 years after discharge from active duty service. No medical evidence associates the veteran's diabetes mellitus to exposure to herbicides or to service in general. The lapse of so many years between the veteran's separation from military service and the first complaints or treatment for the claimed disorder is a factor for consideration in deciding his service connection claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Upon consideration of the foregoing, the Board finds that there is no competent medical evidence establishing that diabetes mellitus was manifest during service, within one year of separation, or is otherwise related to service. Accordingly, direct service connection for diabetes mellitus, type II; and service connection for diabetes as a chronic disorder under 38 C.F.R. §§ 3.307, 3.309 is not warranted. The Board also considers the veteran's claim of service connection for diabetes mellitus, type II, on a presumptive basis as secondary to Agent Orange exposure. The DOD has confirmed that Agent Orange was used in Korea along the DMZ from April 1968 to July 1969. The veteran had active duty service from February 1971 to September 1972, beyond the confirmed period for Agent Orange use; therefore, the veteran's exposure to Agent Orange has not been officially established by the DOD. Thus, there is no evidence to suggest that the veteran was ever exposed to herbicides in Korea. The veteran did not receive any decorations, medals, badges, commendations, citations, campaign ribbons, or any other recognition indicative of Vietnam service. See Haas v. Nicholson, 20 Vet. App. 257 (2006). Moreover, the veteran has not alleged service in Vietnam. Thus, there is no presumption that the veteran was exposed to herbicides as a result of his Vietnam service. As there is no evidence that the veteran was exposed to herbicides during service, there can be no presumption that the veteran's diabetes mellitus is the result of herbicide exposure. Accordingly, presumptive service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is also not warranted. With respect to the issue of entitlement to service connection for skin rash, to include as secondary to herbicide exposure; it is noted that the available service and post-service medical evidence is silent with respect to complaints of or treatment for a skin disorder. Thus service connection for skin rash, to include as secondary to herbicide exposure, is unwarranted because there is no current disability (i.e., no current diagnosis of this condition). Service connection presupposes there is a current diagnosis of the condition claimed; in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See, also, Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability). The Board acknowledges the veteran's contentions concerning the etiology of his type II diabetes mellitus and the manifestation of a skin rash; however, without any supporting probative medical experience, the Board must find that his allegations are not credible and, thus, have very limited probative value and are clearly outweighed by the medical evidence against his claim. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). See, also, 38 C.F.R. § 3.159(a)(1). For these reasons and bases, the preponderance of the evidence weighs against the veteran's claims for service connection. Thus, the benefit-of-the-doubt doctrine is not for application and his claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure, is denied. Service connection for skin rash, to include as secondary to herbicide exposure, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs