Citation Nr: 1005482 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 06-06 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for type II diabetes mellitus, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The Veteran had active military service from August 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and a March 2005 rating decision by the VA RO in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge at the Wichita, Kansas RO in September 2006. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran is not shown to have had duty or visitation in the Republic of Vietnam during his period of active military service. 2. The Veteran is not shown to have been exposed to an herbicide agent during active military duty. 3. The Veteran does not have type II diabetes mellitus that is attributable to military service. CONCLUSION OF LAW The Veteran does not have type II diabetes mellitus that is the result of disease or injury incurred in or aggravated during active military service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in February 2004, October 2004, and March 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, and VA and private treatment records, and provided an examination in furtherance of his claim. The Board notes that a VA examination with respect to the issue on appeal was obtained in August 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it was predicated on consideration of the STRs and medical records in the Veteran's claims file, and considered all of the pertinent evidence of record, including the Veteran's lay statements regarding continuity of symptomatology since service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, no duty to assist was unmet. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; 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). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by active military service if shown to a compensable degree within one year of separation from qualifying active service. 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his diabetes mellitus is the result of exposure to herbicides, and also contends that his type II diabetes mellitus is directly related to his military service. Specifically, he asserts that he experienced trouble urinating while on active duty, and that this problem was a precursor of his subsequently diagnosed diabetes mellitus. In this case, the STRs contain a July 1965 notation referencing trouble passing urine, but the Veteran's entrance and discharge examinations were normal, and the STRs contain no specific diagnosis or treatment related to diabetes, or the precursors of the Veteran's later diagnosed diabetes. The first post-service documented evidence of diabetes was not until February 2001, decades after discharge from active duty service, when the Veteran received diabetic eye care treatment. (See Gene Taylor Community Based Eye Clinic progress note). A March 1978 hospital summary diagnosed the Veteran with hypoglycemia, and a December 2000 entry in the VA outpatient treatment records shows that although the Veteran's blood sugar was elevated, it was not high enough to diagnose diabetes, but was an early sign that it was developing. An August 2003 entry specifically noted that the Veteran did not then have diabetes. According to the VA outpatient treatment records, March 2004, was the earliest diagnosis of diabetes. In any event, the Veteran was discharged in 1965, and was not diagnosed with diabetes until 2001 at the earliest. The Board finds that the lack of in- service notations referencing precursors of the Veteran's later diagnosed diabetes, in addition to the fact that there is no documentation of treatment for, or a diagnosis of diabetes until at least 35 years after discharge from active duty service, when taken together, weigh heavily against the claim. Regarding continuity of symptomatology since service, at his August 2009 VA examination and September 2006 Board hearing, the Veteran stated that he was not diagnosed with diabetes until the early 1990s, although he believed he suffered from diabetes before it was diagnosed. (As noted above the earliest documented diagnosis is 2001.) The Veteran stated that as early as the 1960s he would get very hot even when it was cold outside, and would break out sweating. He believed that his hot flashes were a symptom of his diabetes. Diabetes cannot be diagnosed by unique and readily identifiable features; rather, the determination of a diabetes diagnosis is medical in nature and not capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Discerning whether or not certain symptoms are in fact signs of diabetes requires specialized education, training and experience. 38 C.F.R. § 3.159(a)(2). Moreover, as will be explained below, a physician has reviewed the record and determined that diabetes is not traceable to the symptoms the Veteran reported having since service. There is no medical evidence of record establishing a link between the Veteran's currently diagnosed diabetes mellitus and his military service. An August 2009 VA examiner, A.H., M.D., after considering all the evidence of record, including the STRs and the Veteran's lay statements, opined that it was less likely as not that the Veteran's type II diabetes mellitus was attributable to military service. Dr. H. explained that difficulty urinating was not a precursor to diabetes, and noted that there was no evidence in the service treatment records of the Veteran being diagnosed or treated for diabetes in the military. Dr. H. noted that an entry in the STRs shows that the Veteran complained of difficulty urinating in July 1965, for which a U/A (urinalysis) was ordered (the results of the urinalysis were not noted in the chart), and another U/A was conducted in August 1965, and was negative for sugar and albumin. In summary, the examiner, Dr. H. confirmed that the Veteran did complain of trouble urinating in July 1965, and a urinalysis was ordered in July 1965, but no results were in the record, and another urinalysis was provided a month later which was negative for sugar and albumin. Here, the salient point to be made is that Dr. H. specifically noted that difficulty urinating was not a precursor of diabetes. Dr. H. made clear in his opinion that there was simply no relationship between the two. He further explained that after review of the STRs, he could find no symptoms or treatment in those records that represented the prodromal signs of the Veteran's later diagnosed diabetes. Dr. H.'s opinion stands uncontradicted in the record. Therefore, without evidence of continuity of symptomatology since discharge, or a medical opinion connecting the Veteran's currently diagnosed diabetes to military service, the Board finds that service connection for diabetes mellitus, as directly related to military service, is not warranted. As noted above, the Veteran also contends that his currently diagnosed diabetes is the result of exposure to herbicides while stationed aboard the USS Topeka serving in the Gulf of Tonkin off the shores of Vietnam. The Veteran noted that he served in the boiler room aboard the USS Topeka conducting shore bombardment and firing missiles for 33 days. However, he acknowledged that although his ship was close to the shore, at no point did he get shore leave or set foot on land within the Republic of Vietnam. Instead, the Veteran noted that if he did get leave, he went to Singapore. See September 2006 Board Hearing. During his 2006 Board hearing, the Veteran also stated that he did not recall ever being directly exposed to any kind of herbicide, but offered a theory of exposure, noting that his ship's drinking supply and water for the boilers came out of the Gulf of Tonkin, and he felt the water may be contaminated with herbicides because the ocean flowed into the Gulf of Tonkin, so there was no way for the herbicides to be dispersed out to sea. Regarding presumptive service connection as a result of exposure to an herbicide, it should be 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 the contrary. 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). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. Diabetes mellitus, type II, is one of the presumptive diseases. In this case, the Board finds that the Veteran's claim fails on a presumptive basis for exposure to herbicides because no evidence of record establishes that the Veteran had actual duty or visitation in Vietnam or was exposed to herbicides in any other context. Significantly, the National Personnel Records Center (NPRC), was unable to determine whether the Veteran had in-country service in the Republic of Vietnam; the NPRC document noted that he served aboard the USS Topeka in waters off the Republic of Vietnam from June 8 to July 11, 1964, and from August 8 to September 7, 1964. Additionally, the Veteran has not provided any proof of duty or visitation in the Republic of Vietnam, which requires his presence at some point on the landmass or inland waters of Vietnam in order to benefit from the presumption. 38 C.F.R. § 3.307(a)(6)(iii); and see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In fact, during his September 2006 Board hearing, the Veteran specifically noted that his ship never docked at a harbor in Vietnam, and stated that if he had leave from duty, he did not go ashore in Vietnam, but instead went to Thailand. Based on the above analysis, the Board finds that the evidence does not show Vietnam service; specifically, there is no indication that the Veteran was on the landmass or inland waters of Vietnam. The lack of any proof of in- country service in Vietnam from the service department is persuasive. Therefore, although type II diabetes mellitus is one of the diseases noted under 38 C.F.R. § 3.309 as a disease having a positive association with herbicide exposure, without evidence establishing that the Veteran had actual duty or visitation in Vietnam, the Veteran's claim fails on a presumptive basis for exposure to herbicides. Additionally, regarding direct exposure to herbicides, although the Veteran theorized that the ship's drinking water was potentially contaminated with herbicides, the record does not contain supporting documentation to support this assertion, and there is no other evidence of record showing that the Veteran was in fact exposed to herbicides in any other location. Additionally, an August 2009 VA examiner opined that the Veteran's diabetes was not directly related to exposure to herbicides, as there was no evidence that he had touched the soil of Vietnam, and no evidence of him being exposed to herbicides during his entire military service. As such, based on the above analysis, the Board finds that his currently diagnosed diabetes mellitus, type II is not related to direct exposure to herbicides. Furthermore, because diabetes was not shown until many years after military service, (specifically not until 2001), it may not be presumed under the one-year presumption to have been incurred in or aggravated by active military service. 38 C.F.R. §§ 3.307(a), 3.309(a) (2009). The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The Veteran's currently diagnosed type II diabetes mellitus is not traceable to an injury or disease incurred in or aggravated during active military service. ORDER Service connection for diabetes mellitus, type II, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs