Citation Nr: 1133763 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 09-44 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for renal disease, to include as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for coronary artery disease, to include as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for blindness, to include as secondary to coronary artery disease. REPRESENTATION Appellant represented by: Teena Petro, Agent ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO, in part, denied service connection for diabetes mellitus, type II (to include as due to herbicide (Agent Orange) exposure), erectile dysfunction, renal disease and coronary artery disease (to include as secondary to diabetes mellitus, type II), and blindness (to include as secondary to coronary artery disease). In October 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. The Veteran was stationed at Camp Foster in Okinawa, Japan from April 1969 to April 1970. 3. Diabetes mellitus, type II, is among the diseases recognized by VA as etiologically related to herbicides exposure, to include Agent Orange. 4. As the Veteran did not serve in Vietnam, or in one of the specified units in South Korea that have been determined to have been exposed to herbicides, to include Agent Orange, within the relevant time frame, he is not presumed to have been exposed to herbicides, to include Agent Orange, during such service; moreover, actual exposure to such herbicides, within the meaning of the governing authority, has not persuasively been established. 5. There is otherwise no competent evidence or opinion indicating that the Veteran's diabetes mellitus, type II-first diagnosed many years after service-is medically related to service. 6. No erectile dysfunction, renal disease, coronary artery disease or blindness was not shown in service, and there is no competent evidence or opinion indicating that any of these disabilities-each first diagnosed many years after service-are medically related to service. 7. As service connection for diabetes mellitus, type II has not been established, there is no legal basis for a grant of service connection for erectile dysfunction, renal disease or coronary artery disease as secondary to diabetes mellitus, type II. 8. As service connection for coronary artery disease has not been established, there is no legal basis for a grant of service connection for blindness as secondary to coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, to include as due to herbicide (Agent Orange) exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.313 (2010). 2. The criteria for service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 3. The criteria for service connection for renal disease, to include as secondary to diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 4. The criteria for service connection for coronary artery disease, to include as secondary to diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 5. The criteria for service connection for blindness, to include as secondary to coronary artery disease, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2007 and March 2008 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; these letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2008 rating decision reflects the initial adjudication of the claims after issuance of these letters. Hence, the November 2007 and March 2008 letters-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and service personnel records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his agent, on his behalf. The Board also finds that no further action on any of these claims, prior to appellate consideration, is required. As explained in more detail, below, the Veteran has not presented even a prima facie claim for service connection for any of the claims for service connection on appeal. Under such circumstances, VA has no obligation to arrange for the Veteran to undergo examination or to obtain any medical opinion in connection with any of these claims. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such any error is deemed harmless and does not preclude appellate consideration of any of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease, such as diabetes mellitus, renal disease or coronary artery disease, becomes manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Also, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2010). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). [Parenthetically, the Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).] When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). A. Diabetes mellitus, type II The Veteran claims that service connection is warranted pursuant to a special presumption for residuals of exposure to herbicide agents. Specifically, under the provisions of 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease 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 § 3.307(d) are also satisfied. The listed diseases include diabetes, type II. In written statements in support of his claim, the Veteran reported that, while stationed in Okinawa, Japan at Camp Foster, in the course of his duties as unit member of the Motor Transport Maintenance Company, he was responsible for cleaning and washing fleets of vehicles used in Vietnam where Agent Orange was sprayed, and was thus exposed to Agent Orange. The Board points out that the Department of Defense (DOD) provided to VA an inventory regarding Agent Orange use outside of the Republic of Vietnam. Based on the current DoD findings, the use of herbicides has only been acknowledged for specific units that served in areas along the DMZ in Korea between April 1968 and July 1969. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Within the 7th Infantry Division, the units included the 1-17th Infantry, 2-17th Infantry, 1-73rd Armor, and 2-10th Cavalry. Field artillery, signal, and engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. See March 2003 Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc) . If it is determined that a veteran served in Korea from April 1968 to July 1969 and was assigned to one of the units identified by the DoD or served in Thailand from April 2, 1964 to September 8, 1964, VA presumes that the veteran was exposed to Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) apply. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k. In this case as noted above, the evidence indicates that the Veteran served at Camp Foster in Okinawa, Japan from April 1969 to April 1970. Thus, the Veteran is not presumed to have been exposed to Agent Orange based on his service in Okinawa, Japan from April 1969 to April 1970. The Board also finds that record also includes no persuasive evidence of actual Agent Orange exposure so as to invoke the presumptive procedures of 38 C.F.R. §§ 3.307 and 3.309. The Veteran has asserted that, during his period of service in Okinawa, Japan at Camp Foster, he was responsible for cleaning and washing fleets of vehicles used in Vietnam and thus was exposed to Agent Orange. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here, however, the Veteran lacks competence to determine that, based on his participation in such activities, he was actually exposed to Agent Orange, as such a matter is not within his personal knowledge. By contrast, the DoD is competent to determine whether a member of the Veteran's unit, serving at Camp Foster from April 1969 to April 1970 and performing those duties typical of a member of the motor transport maintenance company, was potentially exposed to Agent Orange. In this regard, VA reviewed DoD's inventory of herbicide operations to determine whether herbicides were used as alleged by the Veteran. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10. The DoD list did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any location on Okinawa. Further DoD monographs did not identify Okinawa as being associated with tactical herbicides. Okinawa was not one of the sites where limited testing was performed under direction of the Fort Detrick, Maryland, Plant Science Lab. The DoD presumably is aware of the duties of a member of the motor transport maintenance company at Camp Foster in Okinawa from April 1969 to April 1970, and is competent to determine whether someone performing duties typical of a member of the motor transport maintenance company, was potentially exposed to Agent Orange. Accordingly, the fact that the DoD specified locations where service members would potentially have been exposed to Agent Orange, and did not include any location in Okinawa, Japan, tends to weigh against a finding of actual herbicide exposure. The Board further notes that there is no other objective, persuasive evidence that the Veteran was exposed to Agent Orange in service, as alleged. The Veteran has not asserted, and the record does not reflect, that he ever traveled to any other area where the use of Agent Orange has been recognized. Furthermore, the Board has considered an article submitted by the Veteran regarding the use of Agent Orange in Okinawa. However, the Board finds that this document lacks probative weight because it does not specifically address whether this Veteran was exposed to herbicides during his service in Okinawa, or whether a member of the Veteran's unit, serving at Camp Foster from April 1969 to April 1970, and performing the duties of a member of the motor transport maintenance company, was potentially exposed to Agent Orange. Therefore, the Board finds that this article does not constitute probative evidence that the Veteran was actually exposed to an herbicide agent as a member of the motor transport maintenance company during his period of service in Okinawa, Japan. As the current record does not support a finding of actual or presumed Agent Orange exposure, the Veteran is not entitled to presumptive service connection based on Agent Orange exposure, pursuant to 38 C.F.R. § 3.309(e). The record also presents no basis for a grant of service connection on any other basis. The competent medical evidence shows a current diagnosis of diabetes mellitus, type II; however, there is no medical evidence to even suggest a nexus between such disability and service. The Veteran's service treatment records are negative for any findings or diagnosis of diabetes mellitus, type II; hence, the disability was not shown in service. Moreover, diabetes mellitus, type II was not manifested within one year from separation of service, and, therefore, there is no basis for a grant of service connection as a chronic disease presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, the Board notes that a May 1989 private treatment record indicates a diagnosis of diabetes mellitus; there is no medical record of a diagnosis of diabetes mellitus of any sort prior to 1989. The Board also points out that the passage of many years- here, over a decade-between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Further, there is no medical opinion linking the diabetes diagnosed many years post-service to service or any incident thereof, to include alleged Agent Orange exposure therein. Insofar as the Veteran and/or his agent asserts that his diabetes mellitus, type II is related to his service, again, as laypersons not shown to have appropriate medical training and expertise, neither is competent to offer an opinion on the medical matter of whether the Veteran's type II diabetes mellitus is related to his period of service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for diabetes mellitus, type II, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56. B. Remaining Claims As noted below, the Veteran has current diagnoses of erectile dysfunction, chronic renal failure, coronary artery disease and blindness, documented some years after service. First addressing the matter of whether the claimed disorders are medically related to service, the Board notes that the Veteran's service treatment records reflect no complaints of, treatment for, or diagnosis of erectile, renal, heart or eye disorders. Considering the voluminous VA and private treatment records, the Board finds that there is no objective medical evidence that supports a finding of service connection for erectile dysfunction, renal disease, coronary artery disease or blindness on a direct basis. Coronary artery disease and a renal disease are not shown to have had their onset during his period of active service, nor were they manifested within one year following his separation from service in April 1970. As such, the record presents no basis for a grant of service connection for coronary artery disease and a renal disease as a chronic diseases presumed to have been incurred in service (see 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309), and the length of time between the manifestation of the disability and service tends to weigh against a grant of service connection (see Maxson, 230 F.3d at 1333). There also is no competent medical evidence or opinion even suggesting that there exists a medical nexus between current erectile dysfunction, renal disorder, coronary artery disease and blindness and service. Moreover, for reasons expressed above, neither the Veteran nor his agent is competent to establish the existence of such a relationship on the basis of lay assertions, alone. See Bostain, 11 Vet. App. at 124; Routen, 10 Vet. App. at 187. For all the foregoing reasons, the Board finds that the claims for service connection for coronary artery disease and a renal disorder, on a direct or presumptive basis, must be denied; the claims for service connection for erectile dysfunction and blindness, on a direct basis must be denied also. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claims on either theory of entitlement, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Finally, as regards the matters of secondary service connection, the Board notes that, in view of the denials of service connection for type II diabetes mellitus, as noted above, there is no legal basis for granting service connection for erectile dysfunction, renal disease and coronary artery disease as secondary to diabetes mellitus, type II; moreover, as there is also no other legal basis for an award of sergice it also follows that there is no legal basis for granting service connection for blindness as secondary to coronary artery disease. Where, as here, service connection for the primary disabilities have been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Under these circumstances, the matters of secondary service connection for erectile dysfunction, renal disease, coronary artery disease and blindness are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for diabetes mellitus, type II, to include as due to herbicide (Agent Orange) exposure, is denied. Service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is denied. Service connection for renal disease, to include as secondary to diabetes mellitus, type II, is denied. Service connection for coronary artery disease, to include as secondary to diabetes mellitus, type II, is denied. Service connection for blindness, to include as secondary to coronary artery disease, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs