Citation Nr: 1031785 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 06-28 397A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for a heart disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus. 3. Entitlement to service connection for a kidney disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to Agent Orange exposure and type II diabetes mellitus. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to Agent Orange exposure and type II diabetes mellitus. 6. Entitlement to service connection for an eye disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1964 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which denied service connection for the above-listed disabilities. The Veteran initiated an appeal of this decision and requested de novo review by a Decision Review Officer (DRO). The DRO issued a statement of the case (SOC) in April 2006 that continued the denial of his claims. The Veteran's appeal was perfected with the timely submission of his substantive appeal in September 2006. In May 2009, the Board remanded for further development. Specifically, the Board instructed the Veterans Benefits Administration (VBA) to issue a corrective VCAA letter informing the Veteran of what the evidence must show to establish secondary service connection for his claimed disabilities, request that the Veteran provide additional details surrounding his claimed exposure to Agent Orange, obtain the Veteran's service personnel records, and readjudicate the Veteran's claims. In September 2009, VBA issued a corrective VCAA notification letter which notified the Veteran of the evidence required to establish secondary service connection and requested that the Veteran provide information regarding his claimed exposure to Agent Orange. In October 2009, the Veteran's personnel records were obtained and associated with the claims folder. Finally, in a May 2010 supplemental statement of the case, the Veteran's claims were readjudicated. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran did not serve in or visit the Republic of Vietnam. 2. Type II diabetes mellitus did not manifest within a year of service discharge and the preponderance of the evidence is against a finding that the Veteran has diabetes mellitus related to service. 3. A heart disability did not manifest within a year of service discharge and the preponderance of the evidence is against a finding that the Veteran has a heart disability related to service. 4. The Veteran does not have a kidney disability related to service. 5. The Veteran does not have peripheral neuropathy of the bilateral lower extremities or bilateral upper extremities related to service. 6. The preponderance of the evidence is against a finding that the Veteran has an eye disability related to service. 7. The Veteran does not have any service-connected disability. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in or aggravated by service and may not be presumed to have been incurred therein, to include as due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. A heart disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein, to include as due to herbicide exposure, nor due to a service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 3. A kidney disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein, to include as due to herbicide exposure, nor due to a service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 4. Peripheral neuropathy of the bilateral lower extremities was not incurred in or aggravated by service and may not be presumed to have been incurred therein, to include as due to herbicide exposure, nor due to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 5. Peripheral neuropathy of the bilateral upper extremities was not incurred in or aggravated by service and may not be presumed to have been incurred therein, to include as due to herbicide exposure, nor due to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 6. An eye disability was not incurred in or aggravated by service to include as due to herbicide exposure, nor due to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 7. The criteria for a total disability rating based on individual unemployability due to a service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in August 2005 and September 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In March 2009 and September 2009, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in a May 2010 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured failure to afford statutory notice to a claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating claim, and notifying claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information to VA, to obtain records from Aurora Two Rivers Clinic. In the August 2005 letter, the RO notified the Veteran that the clinic required a special release form to obtain records and he was requested to send those records to VA. To date, the Veteran has not obtained those medical records. Additionally, pursuant to the Board's May 2009 remand, the Veteran was requested to submit additional details surrounding his claimed exposure to Agent Orange. To date, the Veteran has not provided any additional information. The duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has not been afforded VA medical examinations in connection with his claims. However, no such examinations are necessary. As will be explained in detail below, there is no evidence showing in-service incurrence of any of the claimed disabilities. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The record is missing critical evidence an event, injury, or disease occurred in service, McLendon element (2). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Thus, the duties to notify and assist have been met. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including diabetes mellitus, a cardiovascular disease, and calculi of the kidney if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) and 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Type II diabetes mellitus and acute and subacute peripheral neuropathy, and ischemic heart disease are listed under 38 C.F.R. § 3.309(e) as diseases associated with herbicide exposure. See also Nehmer v. U.S. Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989). With respect to the claim for service connection for a heart disability, the Board notes that on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions including ischemic heart disease. As required by 38 U.S.C. 1116, the Department of Veterans Affairs (VA) will issue regulations through notice and comment rule- making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on that date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. Despite, the foregoing, as explained in further detail below, the evidence does not show that the Veteran served in Vietnam. On the contrary, he has specifically acknowledged that he did not set foot in Vietnam. Accordingly, this case is not affected by the stay and adjudication of the appeal may proceed. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Claims based on In-Service Herbicide Exposure A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). "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. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (U.S. Jan. 21, 2009), 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. The Veteran contends that he served on board the USS Dale in the waters offshore Vietnam. While not contending to have actually set foot in Vietnam, the Veteran indicated that "[w]e helped rescue pilots that were shot down or had wounded aircraft." September 2006 statement accepted in lieu of VA Form 9, substantive appeal to Board. He has stated that he is "certain that incoming and outgoing planes were carriers of Agent Orange. Even though [he] never set foot on land- [he] feel[s] that [he] was exposed through people and planes who were on land and air over Vietnam caus[ing] exposure." February 2006 Notice of Disagreement. In August 2005, the National Personnel Records Center (NPRC) determined that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. Additionally, the Board's review of service personnel records does not show service in Vietnam. Therefore, the Board finds that there is insufficient objective evidence to demonstrate that the Veteran served in-country in Vietnam to warrant presumptive service connection for any of his claimed disabilities based on Agent Orange exposure therein. Even though, the Veteran has not been show to warrant a regulatory presumption of service connection for his claimed disabilities as a result of in-service herbicide exposure, his claims must still be reviewed to determine if service connection can be established on a direct basis or based on applicable presumptions established for chronic disease under 38 C.F.R. § 3.309(a). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). With this in mind, the Board observes that, to the extent that the Veteran has asserted that he was around aircraft that were exposed to Agent Orange, such contentions are not supported by his service records. Furthermore, the Veteran has not presented any evidence that he is competent to proffer opinions regarding the presence of any particular herbicides contained on aircraft returning from Vietnam. Furthermore, has not presented any evidence that he is competent to proffer opinions regarding the chemical makeup of any residual particles contained on the returning aircraft. Accordingly, his statements regarding in- service exposure to herbicides from returning aircraft have no probative value. Accordingly, the Board will review each of the Veteran's claimed disabilities to determine whether service connection may be awarded based on an alternative theory of entitlement including direct service connection. Type II Diabetes Mellitus The Veteran currently has type II diabetes mellitus as is thoroughly documented in the records. However, service treatment records, including the examination report at service discharge, are negative for any findings of type II diabetes mellitus. Additionally, diabetes mellitus did not manifest within a year of service discharge. Consideration on a presumptive basis is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In fact, the first indication of diabetes mellitus was not until sometime in 1999, which was 30 years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no clinical evidence of treatment for or complaints related to type II diabetes mellitus during the Veteran's period of active service. Nor, as set forth above, is there competent evidence demonstrating exposure to herbicide agents. As there is no record of type II diabetes mellitus or exposure to herbicides in service, the Board finds that a VA opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as there is no competent, probative evidence establishing a medical nexus between military service and the Veteran's current diabetes mellitus, service connection is not warranted. The Board has considered the Veteran's assertion as to the etiology of his type II diabetes mellitus, including exposure to herbicide agents. However, as a layperson, he is not competent to give a medical opinion on the etiology of a disorder. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (noting that a layperson is generally not capable of opining on matters requiring medical knowledge). In sum, the evidence shows that the Veteran developed type II diabetes mellitus many years after service. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is claiming that his other claimed disabilities (heart disability, kidney disability, peripheral neuropathy of the bilateral lower extremities, peripheral neuropathy of the bilateral upper extremities, and an eye disability) are secondary to diabetes mellitus. However, since the Board has determined that service connection for type II diabetes mellitus is not warranted, these claims fail on a secondary basis. See 38 C.F.R. §§ 3.303, 3.310 (establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability). Heart Disability The Veteran essentially contends that he has a heart disability due to exposure to Agent Orange and/or secondary to type II diabetes mellitus. As noted above, the evidence is insufficient to demonstrate that the Veteran served in-country in Vietnam. Additionally, since service connection has not been established for type II diabetes mellitus, secondary service connection is not warranted. See 38 C.F.R. §§ 3.303, 3.310. Accordingly, the Board will evaluate the Veteran's claim on a direct basis. The Veteran currently has a heart disability as is thoroughly documented in the records. However, service treatment records, including the examination report at service discharge, are negative for any findings or complaints related to a heart disability. Additionally, a cardiovascular disability did not manifest within a year of service discharge. Consideration on a presumptive basis is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In fact, the first indication of a heart disability was not until sometime in 1999, which was 30 years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no clinical evidence of treatment for or complaints related to a heart disability during the Veteran's period of active service. Nor is there evidence demonstrating exposure to herbicide agents. As there is no record of a heart disability or exposure to herbicides in service, the Board finds that a VA opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as there is no competent, probative evidence establishing a medical nexus between military service, to include exposure to herbicide agents, and the Veteran's current heart disability, service connection is not warranted. The Board has considered the Veteran's assertion as to the etiology of heart disability, including exposure to herbicide agents. However, as a layperson, he is not competent to give a medical opinion on the etiology of a disorder. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (noting that a layperson is generally not capable of opining on matters requiring medical knowledge). In sum, the evidence shows that the Veteran developed a heart disability after service. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kidney Disability The Veteran essentially contends that he has a kidney disability due to exposure to Agent Orange and/or secondary to type II diabetes mellitus. The Board notes that evidence of record is silent for any findings of a kidney disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for a kidney is not warranted. The Veteran is competent to attest to his observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (noting lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge); 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder because he does not have the requisite medical expertise. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his statements indicating that a current kidney disability is related to service are not competent and lack probative value. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy The Veteran essentially contends that he has peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities due to exposure to Agent Orange and/or secondary to type II diabetes mellitus. The Board notes that the medical evidence of record is silent for any findings of peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities is not warranted. The Veteran is competent to attest to his observations of his extremities. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (noting lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge); 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder because he does not have the requisite medical expertise. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his statements indicating that he has peripheral neuropathy of the bilateral lower extremities and bilateral upper extremities related to service are not competent and lack probative value. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eye Disability The Veteran essentially contends that he has an eye disability due to exposure to Agent Orange and/or secondary to type II diabetes mellitus. As previously set forth, the evidence is insufficient to demonstrate that the Veteran served in-country in Vietnam. Additionally, an eye disability is not a disability warranting service connection on a presumptive basis. See 38 C.F.R. § 3.309(e). Furthermore, since service connection has not been established for type II diabetes mellitus, secondary service connection is not warranted. See 38 C.F.R. §§ 3.303, 3.310. Accordingly, the Board will evaluate the Veteran's claim on a direct basis. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990). The record shows that the Veteran currently has diabetic myopia and retinopathy. Although service treatment records reveal that he was treated for conjunctivitis in July 1967, the remainder of the records, including the examination report at service discharge, is negative for any findings or complaints related to an eye disability. The first indication of an eye disability was not until approximately 2002, which was over 30 years after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, while the Veteran was treated for conjunctivitis in service, any disability appears to have been acute and transitory, and resolved without residuals as there were no further complaints of an eye disability for over 30 years. As such, the Board finds that a VA opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as there is no competent, probative evidence establishing a medical nexus between military service, to include exposure to herbicide agents, and the Veteran's current eye disability, service connection is not warranted. The Board has considered the Veteran's assertion as to the etiology of his eye disability, including exposure to herbicide agents. However, as a layperson, he is not competent to give a medical opinion on the etiology of a disorder. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (noting that a layperson is generally not capable of opining on matters requiring medical knowledge). In sum, the evidence shows that the Veteran developed an eye disability after service. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the Veteran need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service- connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the Veteran is not service-connected for any disability and his claim fails. The basis of a grant of a TDIU is an inability to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Therefore, the claim is denied. ORDER Service connection for type II diabetes mellitus, to include as secondary to Agent Orange exposure, is denied. Service connection for a heart disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus, is denied. Service connection for a kidney disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus, is denied. Service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to Agent Orange exposure and type II diabetes mellitus, is denied. Service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to Agent Orange exposure and type II diabetes mellitus, is denied. Service connection for an eye disability, to include as secondary to Agent Orange exposure and type II diabetes mellitus, is denied. Entitlement to a TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs