Citation Nr: 1032152 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 05-00 416A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. The Board notes that the Veteran requested a Travel Board hearing in his January 2005 substantive appeal. However, in correspondence dated in September 2009, he withdrew his hearing request. FINDINGS OF FACT 1. The Veteran did not set foot within the land borders of the Republic of Vietnam and there is no competent evidence showing exposure to herbicides (Agent Orange) in service. 2. Diabetes mellitus, type II, was not diagnosed in service or within one year of service discharge; and, there is no causal link between the Veteran's current diabetes mellitus and any remote incident of service. CONCLUSION OF LAW The Veteran's diabetes mellitus, type II, was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A.. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained service records, VA treatment records, and Social Security Administration (SSA) records. Further, the Veteran submitted additional records and written statements in support of his claim. The Board acknowledges, however, that a VA medical examination was not provided with regard to the issue of entitlement to service connection for diabetes mellitus. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service- connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding to remand the issue for a medical nexus opinion, the Board notes that the Federal Circuit, in a recent decision, upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran, in which case an examination may not be required). The Board concludes an examination is not needed in this case because the only evidence indicating the Veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. As discussed below, there is no evidence of a diagnosis of diabetes mellitus until several decades post-service and no evidence linking the condition to active service. In Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003), the Federal Circuit held that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service". The Veteran does not contend, nor does the record show, that his diabetes mellitus had its onset in service or within one year of service discharge, or that his diabetes mellitus is otherwise related to his active service, other than due to herbicide exposure. The outcome of this appeal turns largely on the question of whether the Veteran was exposed to Agent Orange (herbicide agents). In other words, there is no reasonable possibility that a medical opinion would aid in substantiating the Veteran's claim since it could not provide evidence of a past event (i.e., in-service exposure to herbicide agents). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection for Diabetes Mellitus Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also 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. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be granted for a chronic disease, including diabetes, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). A disease associated with exposure to certain herbicide agents will also be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who 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. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 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). In Haas v. Peake, 525 F.3d 1168 (2008), the United States Court of Appeals for the Federal Circuit held that 38 C.F.R. § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a service member had actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. Diseases associated with such exposure include: chloracne or other acneform diseases consistent with chloracne; Type II diabetes mellitus / adult-onset diabetes; Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, no legal presumption for chronic diseases is applicable because, although the precise date of onset of the Veteran's diabetes mellitus is unclear, the earliest recorded diagnosis of diabetes mellitus is in August 2003, more than three decades after service. Other post-service treatment records, such as the Veteran October 2004 Agent Orange registry examination, suggest that the onset of his diabetes was sometime between 1994 and 1996, approximately 25 years after service. The Veteran does not contend otherwise. Under the circumstances, there is no basis to grant service connection based on the presumption of service incurrence under the provisions of 38 C.F.R. §§ 3.307, 3.309(a). In addition, the legal presumption for exposure to Agent Orange is also inapplicable. Although the Veteran alleges that his ship, the U.S.S. Eversole (DD-789), was supporting the Navy's "brown water" riverboats and close enough to Vietnam's shores that it was exposed to Agent Orange carried by the wind and on the clothing of other servicemen, there is no indication that the Veteran ever set foot within the land borders of Vietnam. The Veteran's personnel records indicate the Veteran was stationed aboard the U.S.S. Eversole (DD-789); however, his personnel records do not show he was ever in Vietnam. While making reference to combat operations involving coastal waters of Vietnam, ship logs from the U.S.S. Eversole are silent with respect to the ship docking in Vietnam or otherwise operating with the inland waters of Vietnam. The Board does not find the Veteran's unsubstantiated statements alone to be more probative than the official information regarding the circumstances of his military service. In the absence of evidence that the Veteran did, in fact, serve in Vietnam, no legal presumption is applicable. In January 2010, VA issued a document, "Compensation and Pension Bulletin," that listed information regarding vessels identified as traveling in the "brown waters" of the Republic of Vietnam and thus eligible for the Agent Orange presumption. The Veteran's ship is not among those listed, however. Under the circumstances, there is no basis to grant service connection based on the presumption of service incurrence under the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). In the absence of a presumption, in order to prevail on the issue of service connection, there must be medical 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 medical 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); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Although the Veteran's service treatment records are sparse, consisting only of his immunization records, they indicate no treatment for, or diagnosis of, diabetes in service. Significantly, the Veteran does not allege that he incurred diabetes mellitus while in Vietnam; rather, he argues that he developed the condition following service as a result of herbicide exposure. This is supported by the Veteran's post- service treatment records, which indicate that diabetes mellitus was not diagnosed until approximately 1994 to 1996, approximately 25 years after service. A review of the Veteran's post-service medical records reveals that the Veteran is currently receiving treatment for diabetes. Treatment records as early as August 2003 show that the Veteran is receiving treatment for type II diabetes mellitus, which is under control with medication, diet, and exercise. In order for service connection to be warranted, there must be medical evidence of a link between the Veteran's diabetes and his military service. However, there is only one clinical opinion associated with the Veteran's claims folder which is relevant to the etiology of his diabetes mellitus. At an October 2004 VA Agent Orange registry examination, the VA physician diagnosed the Veteran's diabetes mellitus as an Agent Orange-related condition and opined that "any medical condition or diagnosis (including all diagnoses and symptoms documented for this patient) could possibly be related to exposure to herbicides during prior service in Viet Nam." However, this opinion, rendered during an Agent Orange registry examination, was based upon the assumption that the Veteran was exposed to herbicides in Vietnam; and, as discussed above, the Veteran does not qualify for such a presumption of in-service exposure because he did not set foot within the land borders of Vietnam. As such, the October 2004 opinion is afforded no probative value. In light of the medical evidence described above, which does not link the Veteran's current diabetes to any remote incident of service, the Board finds that service connection for diabetes mellitus, type II, is not warranted. Direct service connection requires 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); see also, Hickson, 12 Vet. App. at 253. The most probative evidence of record is against such a finding in this case. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus type II is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs