Citation Nr: 0906681 Decision Date: 02/24/09 Archive Date: 03/03/09 DOCKET NO. 03-37 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus as due exposure to Agent Orange. 2. Entitlement to service connection for bilateral hydrocele/chronic testicular cysts. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active duty from January 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2006, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Following the decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), the Board stayed certain claims which theorized entitlement to service connection based on herbicide exposure that were filed by personnel who served in the territorial waters, but not on the land mass, of the Republic of Vietnam. See Chairman's Memorandum No. 01-06-24. Haas was subsequently reversed by the United States Court of Appeals for the Federal Circuit, and in January 2009, the United States Supreme Court denied a petition for further review. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Hence, the claim of entitlement to service connection for type II diabetes mellitus based on in-service exposure to herbicides may now be addressed. FINDINGS OF FACT 1. The Veteran's active military service, which included duty on board naval vessels off the coast of Vietnam during 1966 and 1968, did not include duty in, or visitation to, the Republic of Vietnam. 2. The Veteran was first diagnosed with diabetes mellitus in approximately 2000. 3. The competent and probative medical evidence of record preponderates against a finding that the Veteran's type II diabetes mellitus is etiologically related to his active service. 4. The competent and probative medical evidence of record preponderates against a finding that bilateral hydrocele/chronic testicular cysts are related to the Veteran's active duty. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred or aggravated in-service, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). 2. Bilateral hydrocele/chronic testicular cysts were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in February 2002 and August 2005 of the information and evidenced needed to substantive and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The RO provided notice of how disability ratings and effective dates are determined in March 2006. VA fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Veteran's service treatment records are unavailable. According to February and March 2003 reports from the National Personnel Records Center extensive efforts to locate them were unsuccessful. A March 2003 RO file memorandum concluded that further efforts to locate the service treatment records would be futile. The Board agrees. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of his claim, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases. Russo v. Brown, 9 Vet. App. 46 (1996). II. Factual Background and Legal Analysis The Board has reviewed all the evidence in the Veteran's claims files, that includes service personnel records, his written contentions, private and VA medical records and examination reports, dated from 1990 to 2006, Board hearing testimony, lay statements, and records considered by the Social Security Administration (SSA) in its January 1998 administrative decision that found the Veteran totally disabled and unable to work due to depression and back disorders. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and diabetes mellitus becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309. As noted above, given that the Veteran's service treatment records are unavailable, judicial case law increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant; however, it does not lower the legal standard for proving a claim for service connection. Russo. It is unfortunate that the Veteran's service treatment records are currently unavailable, however, a grant of service connection for type II diabetes mellitus and bilateral hydrocele/testicular cysts requires an etiological link between the claimed in-service disorders and the currently claimed disabilities. A. Type II Diabetes Mellitus In this case, the appellant contends, in pertinent part, that he was exposed to Agent Orange in service, and that such exposure caused his claimed type II diabetes mellitus. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 Vietnam era. "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). The VA General Counsel has determined that the regulatory definition requires that an individual actually have been present on the land mass of the Republic of Vietnam. VAOPGCPREC 27-97; 62 Fed.Reg. 63604 (1997). Specifically, the General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to a herbicide agent during active military, naval, or air service, specified diseases, including diabetes mellitus, shall be service connected if the requirements of 38 U.S.C.A. § 1116; 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). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. at 162. The first determination to be clarified is whether the Veteran was exposed to Agent Orange. The above-described presumptions apply only to veterans who actually served on the land mass of the Republic of Vietnam. The available evidence of record reflects that the Veteran served on active duty from January 1965 to March 1969. His service personnel records and Report of Transfer or Discharge (DD Form 214) show that he served aboard the USS RANGER (CVA 61). The National Personnel Records Center has verified that he was aboard the RANGER during multiple periods when the ship served off the coast of the Republic of Vietnam from January to December 1966 and from January to May 1968. The Veteran's DD Form 214 shows that he received the Vietnam Service and Campaign Medals, but does not show that he had actual service on the land mass of the Republic of Vietnam. As noted above, the Veteran's service treatment records are unavailable but he has not asserted that he was diagnosed with diabetes mellitus in service. The post service medical evidence of record does not reflect a diagnosis of type II diabetes within a year of his discharge from active service. Recent treatment records, dated since many years after service discharge, note the Veteran's ongoing treatment for diabetes mellitus, apparently diagnosed in 2000. During his October 2002 Agent Orange Registry Examination, it was noted that type II diabetes was found in 2000, and that the Veteran had a history of being in or near Vietnam in the South China Sea in the Gulf of Tonkin on an aircraft carrier during 1966, 1967, and 1968, working in aviation supply and laundry. He said that he was involved in unloading aircraft carriers, when he believed he was exposed to herbicides. Diagnoses included type II diabetes, poorly controlled, with early nephropathy. At a November 2002 VA examination conducted by Cheryl Mallory, M.D., a private physician, the Veteran said he was diagnosed with type II diabetes three or four years earlier. The assessment included type II diabetes. In the Veteran's written statements in support of his claim, including his May 2003 notice of disagreement, he argued that he may have been exposed to Agent Orange while serving aboard the USS RANGER by wind borne exposure or when helicopters that sprayed the jungle came on board. During his March 2006 Board hearing, the Veteran testified that he was stationed aboard the RANGER during his military service. He said that the ship often went in and came out for strikes (see hearing transcript, page 6) and that it was "possible" that the ship came as close as six miles to the Vietnamese shore (Id. at 11). The Veteran said he was an aviation storekeeper for aircraft parts and his duties were not primarily on the flight deck. He and his representative essentially maintained that, while aboard ship, the Veteran was so close to shore that the wind drift adversely affected the sailors and crewman aboard his ship. The Veteran has not asserted nor does the evidence show that he set foot in the Republic of Vietnam. His representative described the Veteran as part of the blue water navy (Id. at 8). During the hearing, the representative pointed to a section of the 1991 version of the VA Adjudication Procedure Manual M21-1 dated June 1,1999 (and amended in February 2002) (hereinafter M-21), indicating that, absent contradictory evidence, service in Vietnam will be conceded if records show that the veteran received the Vietnam Service Medical (Id. at 7). The representative contended that, since the Veteran's claim was filed in October 2001, and prior to the February 2002 amendment, the earlier version should be applied to the Veteran's claim and service connection was thus warranted. But, in Haas v. Peake, the Federal Circuit Court specifically held that VA's interpretation of its regulation requiring physical presence within Vietnam to be entitled to a presumption of exposure to herbicide was not inconsistent with the language of 38 C.F.R. § 3.307(a)(6)(iii) and that the current interpretation was consistent for more than a decade. The Federal Circuit Court said that, while the regulation was subject to competing interpretations, it was not unusual for an interpretive regulation to be ambiguous. Further, while the M21 section discussed above provided evidence of a different earlier interpretation, such a prior inconsistent interpretation did not deprive VA's current and longstanding interpretation, reflected by statements including the General Counsel precedent opinion and regulatory comments dating to 1997, of the right to judicial deference. Moreover, the Federal Circuit Court stated that the pre-2002 version of the M21 section was not a substantive rule that could be amended only by notice and comment rule making. Thus, the representative's argument fails in light of the Federal Circuit Court's holding. Here, no records submitted by the Veteran, or provided by the service department, specifically indicate that he was on the land mass of the Republic of Vietnam. In further support of his claim, the Veteran would point to articles submitted on his behalf regarding the effect of Agent Orange, including "A Report to the Department of Veterans Affairs, Australia" by the National Research Center for Environmental Toxicology in December 2002, that investigated the potential for exposure of sailors to contaminants via drinking water and the effects of distillation on sailor's drinking water, and a November 1990 internet article titled "The Story of Agent Orange", that discussed "mist drift" and noted that "troops operating more than six miles from defoliation operations could" find dioxin in their food and water (Id. at pages 5-6). The Board notes, however, that these documents contain no specific findings pertaining to this Veteran's manifestation of type II diabetes mellitus. As a lay person, relying on a generic medical treatise, the appellant is not qualified to render a medical opinion as to the etiology of the cause of his type II diabetes mellitus. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). The Veteran's account of his exposure to Agent Orange, although not implausible, is not documented in any way. The Board appreciates the Veteran's testimony at his Board hearing. However, the information he imparted during the hearing is not been helpful in establishing his presence on the ground in the Republic of Vietnam. His descriptions of his service aboard ship are consistent with well-known historical events, but do not assist in corroborating his account of in-service exposure to herbicides. The National Personnel Records Center has clearly advised VA that it has no further information to impart, and the Veteran has testified that he had no further evidence to submit. In view of the foregoing record, the Board is unable to conclude that the evidence creates a reasonable doubt that his active service included duty on the ground within the Republic of Vietnam. Efforts to secure official records confirming his presence in Vietnam have yielded no confirmation. Because type II diabetes mellitus arose many years after his separation from service, and because there is no competent evidence directly linking the appellant's disorder to service there is no basis to grant service connection. B. Bilateral Hydrocele/Chronic Testicular Growths The Veteran seeks service connection for bilateral hydrocele and testicular cysts and, in his notice of disagreement, maintained that service treatment records show that his bilateral hydrocele started in service. During his 2006 Board hearing, he testified that, while aboard the USS RANGER, he was seen in sick call four or five times for his testicular cysts that were treated with whirlpool baths. He testified that he never directly asked a current treating physician if his testicular cysts were related to service (see hearing transcript at pages 14-15). The veteran indicated that, after service, he worked in a ship yard and employment examinations did not address his testicular cysts. In support of his claim, the Veteran submitted a July 2003 signed statement from D.R.L., a service comrade, who recalled that the Veteran said he was undergoing physical therapy in the whirlpool bath in sick bay for growths on his testicles. Also of record is a July 2003 signed statement from the Veteran's wife, to the effect that he had lumps on his testicles when they married in 1968. Pertinent medical evidence of record includes a September 1994 report from George Krick, M.D., a rheumatologist, indicating that the Veteran recalled having a clear penile discharge several weeks to months earlier, associated with slight testicular soreness without dysuria, thought to be secondary to taking Zoloft and difficulty with penile erection. However, in a January 1995 signed statement, Ronald G. Anderson, M.D., a urologist, indicated that examination findings revealed no abnormalities of the genitals or prostate. Dr. Anderson opined that the Veteran had idiopathic erythrocyturia with unknown etiology. Results of the Veteran's October 2002 VA Agent Orange Registry Examination include his report of occasional enlargement of the testicles. Objectively, he had normal adult external male genitalia. His testes were descended bilaterally and were nontender, slightly enlarged with torpedo-shape, bilaterally. The Veteran's skin was warm, dry, and pink. There were numerous areas of pitting and evidence of facial cystic acne. Diagnoses included cystic acne. During the November 2002 VA examination performed by Dr. Mallory, the Veteran gave a history of noticing growths on both sides of his testicles in 1967 or 1968 that gradually increased in size over time but which did not cause discomfort. He developed urinary problems and impotence in 1992 that he attributed to diabetes. The Veteran said that his testicular growths were evaluated by ultrasound and he was told they were cysts and that they grew minimally in the last few years. Objectively, his penis appeared normal, and there was some mild scrotal enlargement thought to be mild hydrocele, bilaterally. Dr. Mallory said the Veteran had some fluctuant cystic feeling masses in the epididymal area that were nontender. The assessment included chronic testicular cysts and bilateral hydrocele. The Veteran has contended that service connection should be granted for bilateral hydrocele/chronic testicular cysts. Although the evidence shows that the Veteran currently has a mild bilateral hydrocele and testicular cysts, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof. In fact, the first post service medical evidence of record of the bilateral hydrocele and testicular cysts is from 2002, more than 30 years after the veteran's separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection.) In short, no medical opinion or other medical evidence relating the Veteran's bilateral hydrocele/chronic testicular cysts in service or any incident of service has been presented. Therefore, the claim is denied. C. Both Claims The Veteran and his wife and friend, as lay persons without medical training, do not meet the burden of presenting competent evidence as to medical cause and effect, or a diagnosis, merely by presenting their own statements. While the Veteran can attest to factual matters of which he had first-hand knowledge neither he nor any lay affiant is capable of making medical conclusions. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). There is no evidence showing, and the Veteran does not assert, that he or any of his lay witnesses has medical training to provide competent medical evidence as to the etiology of the claimed type II diabetes mellitus and bilateral hydrocele/chronic testicular cysts. The evidence reveals no competent medical evidence of a nexus between any in-service injury or disease and either type II diabetes mellitus or bilateral hydrocele and testicular cysts. The preponderance of the evidence is therefore against the appellant's claims. The claims are denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for type II diabetes mellitus as due to exposure to Agent Orange is denied. Entitlement to service connection for bilateral hydrocele/chronic testicular cysts is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs