Citation Nr: 1031406 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 08-31 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for arteriosclerotic heart disease (heart disorder) due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus due to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy due to herbicide exposure. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida, which-in pertinent part, denied the benefits sought on appeal. The rating decision also denied entitlement to service connection for bilateral hearing loss and tinnitus, both of which the Veteran appealed. In a May 2009 rating decision, a decision review officer granted those claims and assigned an initial 10 percent rating for the tinnitus, and a noncompensable rating for the hearing loss, both effective April 2007. There is no indication in the claims file that the Veteran thereafter appealed either the initial rating or the effective date. Thus, those issues are deemed resolved, and they will not be discussed in the decision below. A May 2010 RO letter informed the Veteran the Travel Board hearing he requested was scheduled for June 15, 2010. There is no indication in the claims file that he did not receive the June 2010 notice letter or evidence of the letter having been returned to VA by postal authorities as undeliverable. He failed to appear for his scheduled hearing, and there is no evidence he requested that the hearing be rescheduled. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2009). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicides during his active service in the Canal Zone, Panama. 2. The preponderance of the evidence shows a heart disorder is not related to an in-service disease or injury, or a service- connected disability. 3. The preponderance of the evidence shows diabetes mellitus is not related to an in-service disease or injury, or a service- connected disability. 4. The preponderance of the evidence shows peripheral neuropathy is not related to an in-service disease or injury, or a service- connected disability. CONCLUSIONS OF LAW 1. A heart disorder was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b) (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) and (e) (2009). 2. Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) and (e). 3. Peripheral neuropathy was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) and (e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned in the event service connection is granted. The Board finds the letter fully content-compliant. See 38 C.F.R. § 3.159(b)(1). VA has also 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 examinations. The RO complied with applicable procedures for assisting a veteran with a herbicide-related claim, to include obtaining information on the use of herbicides outside Vietnam and submitting an inquiry to the U. S. Army and Joint Services Records Research Center (JSRRC). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his/her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a heart disorder, diabetes, or an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of termination of active duty 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status may, but will not always, constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).. Diabetes mellitus, acute and subacute peripheral neuropathy, and arteriosclerotic heart disease are among the diseases for which presumptive service connection is available, or potentially may be available, if exposure to herbicides on the land mass of the Republic of Vietnam during the Vietnam war is shown. See 38 C.F.R. § 3.309(e). Acute and subacute peripheral neuropathy is presumed service incurred if manifested to a degree of 10 percent or more within a year after the last date of exposure to an herbicide agent during active duty. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transit peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309 (e), Note 2. There is no evidence that the appellant served on the land mass of the Republic of Vietnam. Analysis Service treatment records are negative for any entries related to complaints, findings, or treatment for heart disease, diabetes, or a neurological disorder. The appellant's separation examination revealed clinically normal cardiovascular, endocrine, and neurological functions. Laboratory tests were negative for sugar and albumin. The claimant was deemed physically fit for separation from active service. A private March 2007 report from R.R., M.D., notes that the Veteran was diagnosed with diabetes mellitus, hypertension, and coronary artery disease. Dr. R notes he had treated the Veteran since May 2006. B.K., D.O., notes in March 2007 that he has treated the Veteran since 1996, when had a heart attack. He also noted the Veteran had had coronary artery disease since age 53, which also would be since 1996. Neither Dr. R nor K reports that the Veteran has peripheral neuropathy. In light of this medical evidence, there is no basis for presumptive service connection for a chronic disease that manifested to a compensable degree within one year of separation from service, as the Veteran developed the diseases several years after separating from active service in September 1968. See 38 C.F.R. §§ 3.307, 3.309(a). When asked by the RO to provide the dates of his alleged exposure to Agent Orange at Ft. Clayton, Canal Zone, the Veteran responded essentially during his entire tour, as he provided the dates of his tour in the Canal Zone-January 1967 to September 1968. The RO submitted the particulars of the Veteran's claim to the VA Compensation and Pension Service in its request for a review of the Department of Defense inventory of herbicide operations. The August 2008 reply of the Compensation and Pension Service noted that the Department of Defense -provided listing of herbicides use and test sites outside of Vietnam was reviewed. The list contains 71 sites within the U.S. and in foreign countries where herbicide/Agent Orange use or testing is acknowledged. The list does not contain any references to routine base maintenance activities, such as brush clearing and weed killing, etc., as Department of Defense advised that such small scale non-tactical herbicide applications have not been compiled into a list, and records of such activity have not been kept. The report also notes that Department of Defense recently provided Compensation and Pension Service with a series of official monographs that describe in detail the use, testing, and storage of herbicides at various locations. The list does not, however, show any use, testing, or storage of tactical herbicides such as Agent Orange, at any location in Panama. If the Veteran has in fact described some small-scale brush or weed clearing activity around Ft. Clayton, there is no record of such activity with Department of Defense and no way to know the chemical content of any such non- tactical use. The RO was advised to inquire of the JSRRC. The February 2009 JSRRC response noted that the U.S. Army historical records available to the JSRRC did not document the spraying, testing, transporting, storage, or usage, of Agent Orange at Fort Clayton, Panama Canal Zone during the period January 1967 to September 1968. The JSRRC also reviewed the Department of Defense listing of herbicide spray areas outside Vietnam and Fort Clayton, Panama was not listed as a location. The Veteran noted in his written submissions that he was a military policeman. He provided no further information as to what his duties may have entailed. The Board first finds that, excluding clearly labeled or identified substances or containers, the ability to identify various chemicals or chemical substances is beyond the normal experience and capability of the average layman. The Board further notes that there is no evidence in the claims file as to the Veteran's education or his past or current occupation-other than he served as a military policeman during his active service. There is no evidence or assertion that he is a chemist or has received training in chemistry or herbicides. Consequently, these factors impact how much, if any, credibility and weight the Board gives to the Veteran's assertions. See 38 C.F.R. § 3.159(a)(2). Significantly, the Veteran has provided no details as to how and where he may have come into contact with Agent Orange during his tour at Ft. Clayton. Neither has he provided any evidence or details as to how he knew Agent Orange was purportedly used to control jungle foliage at the installation. In the absence of such evidence, the Board finds the Veteran's assertions are speculative at best, and incredible at worse. Either one is fatal to his claim. Consequently, the Board finds the preponderance of the evidence shows he was not exposed to herbicides during his tour at Ft. Clayton, Canal Zone. In light of this finding, there is no need to test Dr. K's opinion that the Veteran's heart disorder may be related to Agent Orange exposure, as he relied entirely on the appellant's s reported history of exposure which, as noted above, the Board rejects. Thus, the Board is constrained to find the preponderance of the evidence is against the claims on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307, 3.309(a) and (e). The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for arteriosclerotic heart disease (heart disorder) due to herbicide exposure is denied. Entitlement to service connection for diabetes mellitus due to herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy due to herbicide exposure is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs