Citation Nr: 1106972 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 08-01 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus (diabetes). 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities (claimed as burning in the hands and feet) secondary to diabetes. 3. Entitlement to service connection for impotence (claimed as conditions with creative organ) secondary to diabetes. 4. Entitlement to service connection for a heart condition with chest pain secondary to diabetes. 5. Entitlement to service connection for ulcers. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his Wife ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from November 1969 to November 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran and his wife presented testimony at a Videoconference hearing chaired by the undersigned Veterans Law Judge in October 2010. A transcript of the hearing has been associated with the claims folder. The issue of entitlement to service connection for ulcers is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not suffer from diabetes in service or for many years thereafter. 2. The Veteran did not suffer from peripheral neuropathy of the bilateral upper and lower extremities in service or for many years thereafter. 3. The Veteran did not suffer from impotence in service or for many years thereafter. 4. The Veteran did not suffer from a heart condition in service or for many years thereafter. 5. The Veteran did not serve in the Republic of Vietnam, and there is no credible evidence that the Veteran was otherwise exposed to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). 2. The criteria for service connection for peripheral neuropathy of the bilateral upper and lower extremities have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010). 3. The criteria for service connection for impotence have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a heart condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 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). Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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); 38 C.F.R. § 3.303(d). Certain disabilities are presumed to be service connected if evidence of the disease manifests itself to a compensable degree within one year of the end of the Veteran's service; diabetes is one of the chronic conditions subject to this presumption. 38 C.F.R. §§ 3.307, 3.309(a). 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). In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of disease or injury, and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). Turning to the merits of this claim, the Board acknowledges that the Veteran currently suffers from each of his claimed conditions. A November 2010 letter from Neal Lumapas, M.D., stated that the Veteran currently suffers from diabetes. Dr. Lumapas also stated that the Veteran suffers from erectile dysfunction, ulcers, peripheral neuropathy, chest pain, and prostate cancer, all secondary to his diabetes. The Veteran's claim fails on a direct basis, however, because there is no evidence that the Veteran suffered from these conditions (with the exception of ulcers, a condition which is addressed in the remand section) during his active service. A review of the Veteran's service treatment records does not reveal any treatment for or complaints of the claimed conditions. These issues were not mentioned on either the Veteran's report of medical history at separation or on the Veteran's examination performed at separation. The Veteran does not contend that he suffered from any of these conditions during his active service. Instead, the Veteran contends that his diabetes resulted from his in-service exposure to Agent Orange and should be service connected on a presumptive basis. He further contends that his other claimed conditions are all secondary to his diabetes. See 38 C.F.R. § 3.310 (providing that "a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected"). VA law and regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Veterans who served in the Republic of Vietnam between January 1962 and May 1975 are presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Here, though, the Veteran is not presumed to have been exposed to herbicide agents. The Veteran's DD-214 does not reflect that the Veteran served in Vietnam, and the Veteran has never alleged that he served overseas. Instead, the Veteran contends that he was exposed to herbicide agents during his service inside the Untied States. In a November 2006 letter accompanying his claim, the Veteran listed 6 sources of possible exposure to Agent Orange: first, during his basic training at Lackland Air Force Base; second, during his being stationed near Vietnamese trainees in Gulfport, Mississippi; third, during his service in a post office at Lowry Air Force Base in Colorado; fourth, during his work in a graphics operation; fifth, during work at an Army Detachment Squad in a warehouse; and finally, while working with the FBI in intelligence. In his March 2007 Notice of Disagreement, the Veteran again stated that he was exposed to Agent Orange during his domestic service. He stated that he helped transfer herbicides in Gulfport, Mississippi, and that the barrels stored there often leaked. The Veteran also stated that while working in an Air Force post office, he handled many letters that came from Vietnam and were invariably tainted with Agent Orange. Finally, the Veteran also spoke of his claimed exposure in his October 2010 Videoconference hearing. The Veteran stated that he trained at Lackland Air Force Base in 1968 and then was stationed at Keesler Air Force Base in Mississippi in January 1969. The Veteran stated that he was a member of the Drum and Bugle Corps, and occasionally practiced inside warehouses where he believed that Agent Orange could have been stored. The Veteran also stated that he visited a Naval Base in Gulfport, Mississippi as part of his duties with the drum and bugle corps. He said that he was asked between two and five times to help move drums of chemicals around the base. Over time, he has come to believe that those drums contained Agent Orange. The Veteran also contended that he was exposed to Agent Orange while handling mail that originated in Vietnam. The Board does not find the Veteran's testimony that he was exposed to Agent Orange to be credible. With one exception explained below, the Veteran has not provided coherent, cogent explanations for how and where he could have been exposed to herbicides, as each of the Veteran's suppositions have logical or evidentiary flaws. First, with respect to the Veteran's claims that he could have been exposed to herbicides during his basic training or during his work in a graphics operation, the Veteran never states how such exposure could have occurred, let alone how such exposure did occur. There is no evidence that the Veteran served with the FBI during his active service. The idea that the Veteran could have been exposed to Agent Orange because he trained around others of Vietnamese descent is both unreasonable and unfounded. There is also no evidence that residuals of herbicides may remain on letters or packages that originated from a country where Agent Orange was used. The only claim of possible exposure made by the Veteran that bears analyzing is his claim that he was exposed to herbicides while moving chemicals in Gulfport, Mississippi. The Veteran supplied an information sheet from VA reflecting that 15,161 drums of Agent Orange were being stored in Gulfport between 1968 and 1970. In his October 2010 hearing, the Veteran contended that he helped move these drums anywhere between 2 and 5 times, and that the drums leaked when he did so. The Board does not find the Veteran's testimony regarding this claimed exposure to be credible. First, the Board notes that the Veteran was stationed at Keesler Air Force Base in Biloxi, while the Agent Orange was stored at a Naval facility in Gulfport. The Veteran contends that he went to the Naval facility as a participant in the drum and bugle corps. He does not, however, explain why a Naval facility pressed an Air Force airman into service to move drums of Agent Orange. Next, the Board notes that the Veteran was not clear in describing when this exposure took place. In his hearing, the Veteran contended that he completed basic training in 1968 and was exposed to Agent Orange at Gulfport in 1969. A review of the Veteran's records, however, reveals that he was not inducted into the Air Force until November 1969, and that he was not stationed in Mississippi until January 1970. Finally, the Board notes the incongruities between the Veteran's November 2006 letter describing his claimed exposure and his later October 2010 testimony. The Veteran did not state in his November 2006 letter that he helped move drums of Agent Orange while in Gulfport. Instead, he contended that he was exposed to herbicides at that time because he was stationed around Vietnamese trainees. For VA to concede that a veteran was exposed to Agent Orange outside of the Republic of Vietnam or other qualifying service in Southeast Asia, that veteran must provide clear examples of actual exposure, not merely statements of possible exposure based solely on conjecture. Given that the Veteran has not provided these details, the Board finds no credible evidence that the Veteran was exposed to Agent Orange or other herbicides during his active service. Finally, the Board notes that accompanying Dr. Lumapas' November 2010 letter, is a sheet on which it is indicated that the Veteran's claimed conditions "are more likely than not related to military service," with instructions to the reader to see an attached letter for rationale. Significantly, this sheet is unsigned and as discussed above, the November 2010 letter, simply listed the conditions from which the Veteran currently suffers and that they were secondary to diabetes. This letter did not explain why Dr. Lumapas believed the Veteran's diabetes or other conditions were causally related to the Veteran's active service. Thus, the Board does not consider this to be evidence indicating any of the Veteran's disabilities are considered by Dr. Lumapas to be linked to service. In summary, the Board finds that the Veteran did not suffer from any of his claimed conditions in service or for many years thereafter. The Board also finds that the Veteran did not serve in Vietnam, and that there is no credible evidence that he was otherwise exposed to Agent Orange or any other herbicide. Accordingly, the Board concludes that the criteria for service connection for each of these conditions have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. Finally, 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, 3.326(a) (2010). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2007 - prior to the initial RO decision in this matter - that addressed the notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records from the Social Security Administration, and records of the Veteran's private treatment that he supplied. A VA compensation and pension examination is not required for the claims being decided herein. The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2). If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, there is no competent indication that the Veteran's claimed conditions could be related to his active service. Without such an indication, the Board may consider the medical records already in the file without requiring a VA examination. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran 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). All necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for type II diabetes mellitus is denied. Service connection for peripheral neuropathy of the bilateral upper and lower extremities is denied. Service connection for impotence is denied. Service connection for a heart condition is denied. REMAND The Veteran also seeks service connection for ulcers, but as he explained during his October 2010 hearing, the Veteran does not believe that this condition is secondary to his diabetes. For the reasons that follow, the Board shall remand the Veteran's claim to allow for further development. First, the Board notes that the Veteran currently suffers from an ulcer. An April 2006 record from Shands Healthcare notes that the Veteran suffers from a bleeding ulcer. Dr. Lumapas' November 2010 letter also confirmed that the Veteran currently suffers from ulcers. The Board also notes that the Veteran had numerous complaints of suffering from stomach problems during his active service. The Veteran was diagnosed as suffering from gastroenteritis in August 1970. In June 1970 or 1971, the date is not legible, the Veteran complained of suffering from a gnawing epigastric pain, and it appears he may have been diagnosed as suffering from peptic ulcer disease, ("PUD" appears to be how it is characterized in the record). Later, the Veteran complained of suffering from an upset stomach in August 1972, and the Veteran reported suffering from stomach, liver, or intestinal trouble on his report of medical history in November 1973. The examiner from the Veteran's separation examination stated that the Veteran probably suffered from viral gastritis, but that no diagnosis was made. The Board also notes that medical evidence associated with the claims file as part of the Veteran's SSA records reflect that the Veteran suffered from stomach problems throughout the 1970s. A 1977 record - only four years after the Veteran's separation from service - noted that the Veteran was most likely suffering from peptic ulcer disease. Given that the Veteran currently suffers from ulcers and that there is evidence that the Veteran suffered from ulcers in service (and shortly thereafter), the need to have a VA examination to determine whether the two conditions are related has been triggered. Thus, the Veteran's claim shall be remanded in order that he may undergo such an examination. Further, in his October 2010 hearing, the Veteran stated that he was treated for his ulcers at Walter Reed Army Medical Center in Washington, DC. Records of this treatment have not been obtained, so upon remand, the RO/AMC should seek these records. Accordingly, the case is REMANDED for the following action: 1. With any assistance needed from the Veteran to narrow the dates of treatment, the RO/AMC should seek to obtain any records of the Veteran's treatment that he underwent at Walter Reed Army Medical Center during his period of service. 2. The Veteran should be scheduled for a VA examination before an examiner with the appropriate expertise to determine the current nature and etiology of his claimed ulcers. The examiner should be provided the claims file, and it should be noted in the report the examiner provides that the file was reviewed. All indicated studies should be conducted. The examiner is then asked to state whether the Veteran currently suffers from ulcers or any other stomach condition. If the examiner finds that the Veteran is currently suffering from a stomach condition, then the examiner is asked to provide an opinion as to its etiology, stating whether it is at least as likely as not (i.e. at least a 50 percent probability) that the Veteran's current disability had its onset in, or is otherwise causally related to his active service and the stomach problems that the Veteran experienced therein. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC shall then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs