Citation Nr: 1003205 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 02-21 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from March 1955 to March 1976. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Veteran testified before the undersigned at a hearing at the RO in April 2006. A transcript of this hearing is associated with the claims folder. This case was previously before the Board in October 2006 and November 2008 and was remanded each time for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The October 2006 and November 2008 Board remands noted that due to continuing adjudication of the case of Haas v. Nicholson, 20 Vet. App. 257 (2006), the Secretary of Veterans Affairs had imposed a stay affecting the issue of entitlement to service connection for diabetes mellitus. The stay on processing these claims was lifted by way of Chairman's Memorandum 01-09-03, dated in January 2009. The lifting of the stay was predicated on a decision by the United States Court of Appeals of the Federal Circuit in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). The Federal Circuit reversed the Court's holding regarding the validity of 38 C.F.R. § 3.307(a)(6)(iii). FINDINGS OF FACT 1. There is competent medical evidence linking the Veteran's current schizoaffective disorder to his military service. 2. Service personnel records show that the Veteran served aboard the USS Midway in the South China Sea from April 1965 to November 1965. 3. There is no evidence of service or visitation to the Republic of Vietnam. 4. There is competent evidence of a current diagnosis of diabetes mellitus. 5. There is no evidence of diabetes mellitus in service, or within one year after service, and no competent medical evidence linking the Veteran's current diabetes mellitus with his period of service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. Service connection for schizoaffective disorder is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. Diabetes mellitus was not incurred or aggravated in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's claim that an acquired psychiatric disorder and diabetes mellitus are related to his service in the United States Navy from March 1955 to March 1976. Specifically, with regard to the psychiatric disorder disorder, the Veteran claims that he began experiencing psychiatric problems during his military service, in approximately 1974. With regard to the diabetes mellitus, the Veteran claims that he is entitled to the presumption of exposure to herbicides under 38 C.F.R. § 3.309(e) for his current diabetes mellitus. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In addition, where the veteran served continuously for ninety (90) or more days during a period of war or in peacetime after December 31, 1946, and if a chronic disease, becomes manifest to a degree of 10 percent or more within one year from the date of the veteran's 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; 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). The governing law provides 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). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders, including Type II diabetes mellitus. 38 C.F.R. § 3.309(e). "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 (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. 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. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. The Federal Circuit held that VA's interpretation of the phrase "served in the Republic of Vietnam," to the effect that a veteran must set foot on Vietnamese soil, was entitled to deference by the courts. Haas v. Peake, 525 F.3d at 1168. Analysis 1. Acquired psychiatric disorder The Veteran's service treatment records are negative for psychiatric problems; however, his service personnel records, beginning in December 1969, show a variety of personal problems to include arguments with his wife and failure to pay his debts. Private treatment records show that the Veteran developed major depression as early as November 1978, approximately two and a half years after his discharge from military service. The Veteran submitted a claim for service connection for mental depression in June 1992. He was afforded a VA examination in September 1992 and a diagnosis of mental depression was given. By rating decision dated in February 1993 the RO denied service connection for mental depression, finding that there was no link between the Veteran's current mental depression and his military service. The Veteran attempted to appeal this decision but submitted an untimely substantive appeal. As such, the February 1993 rating decision became final. The Veteran attempted to reopen this claim in March 2002. In connection with this new claim the Veteran submitted a December 2006 statement from Dr. R.J.D. in which Dr. R.J.D. opined that the Veteran has a long standing, severely disabling psychiatric disorder (bipolar disorder) which was aggravated by his military service. By decision dated in November 2008 the Board reopened the previously denied claim finding that new and material evidence had been submitted. The Board also remanded the claim on the merits, requesting that a VA examination be performed and that an opinion be given with regard to the etiology of the Veteran's current psychiatric problems. The Veteran was afforded a VA psychiatric examination in November 2009. Upon review of the claims file and mental status examination, the examiner diagnosed the Veteran with schizoaffective disorder and opined that the Veteran's current schizoaffective disorder is "at least as likely as not related at least temporally and possibly causally" to the Veteran's military service. Given the above, the Board finds that service connection for schizoaffective disorder is warranted. A November 1978 private treatment record shows a psychiatric disorder very soon after service, approximately two and a half years. Also, the December 2006 private physician and the November 2009 VA examiner opined that the Veteran's current psychiatric problems are related to his military service. These opinions provide a plausible basis to conclude that the Veteran's current schizoaffective disorder is related to his military service. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for schizoaffective disorder. 38 U.S.C.A. § 5107(b). 2. Diabetes mellitus The Board finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus on a direct basis. The Veteran's service treatment records are silent as to any complaint or diagnosis of diabetes mellitus or associated symptomatology. Significantly, examination reports dated in December 1964, October 1970, and March 1976 are negative for any indication of diabetes mellitus. The earliest evidence of diabetes mellitus is a private treatment report dated in January 2001, approximately 25 years after military service. The lapse of time between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no competent medical evidence of record that links the Veteran's diabetes mellitus to any event in service, including the alleged herbicide exposure. The Board also finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus on a presumptive basis. First, there is no evidence of diabetes mellitus within one year of military service. 38 C.F.R. § 3.307(a)(3). As was stated earlier, he was not diagnosed with the diabetes mellitus until January 2001, approximately 25 years after military service. Second, while diabetes mellitus is one of the diseases for which presumptive service connection may be granted if there is evidence of exposure to herbicides in service, the Veteran's service records do not show that the he was ever exposed to herbicides while in service. Service personnel records show that the Veteran served aboard the USS Midway (CVA 41) in operations in the South China Sea during the period of April 1965 to November 1965. The Veteran alleges that he was exposed to herbicides during this tour of duty. Specifically, he alleges that he worked as an engineer or machine inspector and sailed up and down the Viet Cong River where he would occasionally set foot on the beaches of Vietnam. However, there is no indication that, based on the evidence of record, the Veteran was, in fact, exposed to herbicides. The Veteran's service personnel records do not show that his boat was ever docked at the Republic of Vietnam and service connection on a presumptive basis based on exposure to Agent Orange is only available to veterans whose service involved other locations where the conditions of that service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 501; 38 C.F.R. §§ 3.307, 3.313. There is also no evidence in the Veteran's record to substantiate any visitation or service in the Republic of Vietnam or service in the other specific areas for which exposure is presumed. The Veteran's claim for service connection includes his own assertion that his current diabetes mellitus is related to his military service. The Board does not doubt the sincerity of the Veteran's beliefs, however, he is not competent to provide a nexus opinion in a case such as this, involving complex medical questions. See Jandreau, 492 F.3d at 1377. The Board has carefully considered the requirement the benefit-of-the-doubt rule. See Gregory v. Brown, 8 Vet. App. 563, 570 (1996). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Complete notice was sent in April 2002, July 2002, April 2003, July 2004, February 2005, and December 2006 letters and the claim was readjudicated in an October 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment and personnel records, assisted the appellant in obtaining evidence, afforded the appellant a psychiatric examination, obtained a medical opinion as to the etiology of the Veteran's psychiatric disorder, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA need not conduct an examination with respect to the diabetes mellitus claim decided herein because the information and evidence of record contains sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4). There is no competent evidence that suggests a causal link between the Veteran's diabetes mellitus and any incident of active duty. Indeed, in view of the 25 year gap between the claimed disorder and active duty, relating the Veteran's diabetes mellitus to his service would be entirely speculative. Therefore, there is no duty to provide an examination or a medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for schizoaffective disorder is granted. Service connection for diabetes mellitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs