Citation Nr: 1100286 Decision Date: 01/04/11 Archive Date: 01/11/11 DOCKET NO. 09-48 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously-denied claim for entitlement to service connection for bilateral leg weakness (claimed as separate from bilateral radiculopathy and peripheral neuropathy claims) 2. Whether new and material evidence has been received to reopen a previously-denied claim for entitlement to service connection for a stomach disorder. 3. Entitlement to service connection for a stomach disorder 4. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for residuals of a left shoulder injury. 5. Entitlement to service connection for residuals of a left shoulder injury. 6. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for diabetes mellitus. 7. Entitlement to service connection for diabetes mellitus. 8. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for peripheral neuropathy. 9. Entitlement to service connection for peripheral neuropathy. 10. Entitlement to service connection for a right shoulder injury. 11. Entitlement to service connection for cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1971 to November 1974 and from December 1974 to April 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In that rating decision, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the previously-denied claims for entitlement to service connection for bilateral leg weakness, for a stomach disorder, for residuals of left shoulder injury, for diabetes mellitus, and for peripheral neuropathy. The RO also denied entitlement to service connection for residuals of a right shoulder injury, and for a cervical spine disorder. The Board acknowledges that the Veteran submitted evidence in December 2009 in support of his claim, and in the correspondence attached to the evidence, the Veteran stated that he did not wish to waive review by the agency of original jurisdiction (AOJ). However, this evidence is duplicative of the evidence already contained in the claims file, and had already been reviewed by the RO in adjudicating the Veteran's claims. Thus, the Board may proceed with adjudication of the claims on appeal without prejudice to the Veteran. It is noted that the Veteran requested waiver of an overpayment of VA compensation, but this issue has not fully adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for residuals of a right shoulder injury and for a cervical spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a June 2005 rating decision, the RO determined that new and material evidence had not been received to reopen the previously-denied claims for entitlement to service connection for a stomach disorder, for residuals of left shoulder injury, and for bilateral leg weakness; and also denied entitlement to service connection for diabetes mellitus, for peripheral neuropathy, for residuals of a right shoulder injury, and for a cervical spine disorder. The Veteran did not perfect an appeal of that decision following the issuance of a statement of the case (SOC) in August 2006. 2. The additional evidence received since the June 2005 rating decision, is cumulative or redundant and does not relate to an unestablished fact that is necessary to substantiate the claim for service connection for bilateral leg weakness or does it raise a reasonable possibility of substantiating the claim. 3. The additional evidence received since the June 2005 rating decision relates to an unestablished fact (a current diagnosis of a stomach disorder) that is necessary to substantiate the claim for a stomach disorder, and raises a reasonable possibility of substantiating that claim. 4. The most probative evidence of record is against the Veteran's gastroesophageal reflux disease (GERD) being related to service. 5. The additional evidence received since the June 2005 rating decision relates to an unestablished fact (a current diagnosis of a left shoulder disorder) that is necessary to substantiate the claim for service connection for residuals of a left shoulder injury, and raises a reasonable possibility of substantiating that claim. 6. The most probative evidence of record is against the Veteran's left acromioclavicular (AC) joint arthropathy being related to service, to include a claimed in-service left shoulder injury. 7. The additional evidence received since the June 2005 rating decision relates to an unestablished fact (exposure to herbicides) that is necessary to substantiate the claim for diabetes mellitus, and raises a reasonable possibility of substantiating that claim. 8. Based on the totality of the evidence of record and with resolution of reasonable doubt in his favor, the Veteran is found to have been present on the landmass of Vietnam on at least one occasion during 1972, and is thus presumed to have been exposed to herbicides. 9. The Veteran has been diagnosed with diabetes mellitus, Type II. 10. The additional evidence received since the June 2005 rating decision relates to an unestablished fact (secondary to diabetes mellitus) that is necessary to substantiate the claim for peripheral neuropathy, and raises a reasonable possibility of substantiating that claim. 11. The Veteran's peripheral neuropathy is proximately due to his diabetes mellitus. CONCLUSIONS OF LAW 1. In a June 2005 rating decision, the RO determined that new and material evidence had not been received to reopen the previously-denied claims for entitlement to service connection for a stomach disorder, for residuals of left shoulder injury, and for bilateral leg weakness and denied entitlement to service connection for diabetes mellitus, for peripheral neuropathy, for residuals of a right shoulder injury, and for a cervical spine disorder, is final. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.202, 20.1103 (2010). 2. As evidence received since the June 2005 rating decision is not new and material, the criteria for reopening the Veteran's claim for service connection for bilateral leg weakness, are not met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 3. As evidence received since the June 2005 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for a stomach disorder are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 4. The criteria for service connection for a stomach disorder (diagnosed as GERD) are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 5. As evidence received since the June 2005 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection residuals of a left shoulder injury are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 6. The criteria for service connection for claimed residuals of a left shoulder injury are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 7. As evidence received since the June 2005 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection diabetes mellitus are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 8. The criteria for service connection for diabetes mellitus are met. 38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2010). 9. As evidence received since the June 2005 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection peripheral neuropathy are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 10. The criteria for service connection for peripheral neuropathy are met. 38 U.S.C.A. §§ 1110, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Initially, given the Board's favorable disposition of the petition to reopen the Veteran's previously-denied claims for service connection for bilateral leg weakness, for a stomach disorder and for residuals of a left shoulder injury and the grant of service connection for diabetes mellitus and peripheral neuropathy, the Board finds that all notification and development actions needed to fairly adjudicate the appeal with regard to these issues have been accomplished. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (Apr. 30, 2008). VA's notice requirements apply to all five elements of a service- connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, in May 2008 pre-rating letter, the RO advised the Veteran of the basis for the previous denial of his service-connection claim for bilateral leg weakness and informed him of what evidence was required to reopen and substantiate his claims for service connection, and apprised the Veteran as to his and VA's respective duties for obtaining evidence consistent with the holdings in Pelegrini, Dingess and Kent. In addition to its duty to notify, VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with an examination in May 2009 in conjunction with his claims for service connection for residuals of a left shoulder injury, a stomach disorder, and for peripheral neuropathy. In a July 2005 addendum to the May 2009 examination report, the examiner discussed whether the Veteran's disorders were etiologically related to his service. The Board finds that this examination report and addendum, along with the other evidence of record, is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board recognizes that the Veteran was not afforded a VA examination in conjunction with his claim for bilateral leg weakness. Since the Board is not reopening the previously-denied claim, VA's duty to assist has not activated and there is no basis upon which to direct a medical examination. 38 U.S.C.A § 5103A(d), (g); see Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that adequacy of VA medical examination is mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims decided herein. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duties to notify and assist. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b). II. Petitions to Reopen The Veteran seeks to reopen previously-denied claims for service connection for a stomach disorder, for residuals of a left shoulder injury, and for bilateral leg weakness. The RO in a June 2005 rating decision denied the Veteran's claims for service connection for diabetes mellitus and for peripheral neuropathy, and it declined to reopen the previously-denied claims for service connection for a stomach disorder, for residuals of left shoulder injury, and for bilateral leg weakness. The Veteran initiated an appeal, but he did not perfect an appeal following issuance of an August 2006 SOC. Therefore, this rating decision became final as to the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. In April 2008, the Veteran filed his petitions to reopen his claims for service connection for diabetes mellitus, for peripheral neuropathy, for a stomach disorder, for residuals of left shoulder injury, and for bilateral leg weakness. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly-received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Bilateral Leg Weakness The Board notes that the Veteran's claim for service connection for bilateral leg weakness was originally denied in July 1996, because the evidence of record failed to show he had a current diagnosed disorder. At the time of that decision, the record contained the Veteran's service treatment records, a private December 1977 evaluation, December 1978 and February 1996 VA examination reports, and VA treatment records. The Veteran's service treatment records are replete with complaints of bilateral leg weakness and numbness. These symptoms were associated with a diagnosis of hyperventilation episodes and there was no evidence of a muscle disease or neurologic disorder shown in service. See the report of a March 1974 neurology consultation. Shortly after the Veteran's separation from service, he was afforded a VA general examination in December 1978. In the examination report, the examiner noted that the Veteran's complaints of bilateral leg weakness; however, there was no evidence of any bilateral lower extremity abnormalities found on physical examination. None of the post-service medical evidence showed objective findings of a current diagnosed disorder associated with the Veteran's subjective complaints of bilateral weakness. The examiners in the private evaluations and both of the VA examinations concluded that there were no findings of any diagnosed disorder of the Veteran's lower extremities at the time of examination in 1977, 1978 and 1996. The RO most recently declined to reopen the Veteran's claim in the June 2005 rating decision, because no new and material evidence had been received, showing a current diagnosed disorder that was etiologically related to the Veteran's period of service. In order for the Board to reopen the Veteran's claim for service connection for bilateral leg weakness, the evidence must at least show a currently diagnosed lower extremity disorder for alleged bilateral leg weakness that is separate and distinct from the Veteran's service-connected radiculopathy and diabetic peripheral neuropathy. Since the June 2005 rating decision, additional VA treatment records, the May 2009 VA examination report and addendum, and various statements from the Veteran have been associated with the record. Although this evidence is new, it is not material as none of the additional evidence shows the Veteran has a currently diagnosed disorder associated with bilateral leg weakness separate and distinct from the Veteran's service-connected radiculopathy and diabetic peripheral neuropathy. None of the additional treatment records reflects treatment for, or a diagnosis of, hyperventilation episodes similar to the episodes that the Veteran experienced during service. Moreover, these treatment records show that the Veteran has only been treated for, and diagnosed with, radiculopathy and diabetic neuropathy in his lower extremities. See VA treatment records and May 2009 VA examination report. As noted above, these disorders are separate and distinct from the Veteran's claim for service connection for bilateral leg weakness. None of the medical findings contained in these records pertain to a separate diagnosed disorder characterized by "bilateral leg weakness" that is not associated with the Veteran's already service- connected neurological disabilities. The Board also notes that none of the Veteran's additional statements constitutes "new" evidence. In these statements, the Veteran does little more than elaborate on, or repeat, his previous statements in support his claim that his bilateral leg weakness is related to service. The additional statements are cumulative or duplicative of previous arguments and are insufficient to establish a reasonable possibility of substantiating the claim. After a careful review of the claim file, the Board finds that, since the last final decision in June 2005, no new and material evidence has been received to reopen the Veteran's claim. The newly-received evidence in this case does not pertain to the unestablished fact (currently diagnosed disorder that is etiologically related to service) necessary to establish this claim. The only new medical evidence are the additional VA treatment records, which demonstrate that the Veteran has been diagnosed with radiculopathy and diabetic neuropathy in his lower extremities, for which service connected has been granted. The additional evidence in the VA treatment records do no pertain to a separate and distinct disorder due to claimed bilateral leg weakness. Based on the foregoing, the Board finds that new and material evidence has not been received and the Veteran's previously- denied claim for service connection for bilateral leg weakness may not be reopened. See 38 C.F.R. § 3.156. Left Shoulder Injury and a Stomach Disorder In the June 2005 rating decision, the RO also declined to reopen the previously-denied claims for a stomach disorder and for residuals of left shoulder injury because no new and material evidence had been received that showed current diagnosed disorders of the stomach or of the left shoulder. The additional evidence received since the June 2005 rating decision includes a May 2009 VA examination report, which reflects current diagnoses for GERD and arthropathy in the left AC. The Board finds that this additional evidence is neither cumulative nor duplicative of evidence previously of record nor was it previously considered by agency adjudicators, and as such it is "new." As such these additional records relate to unestablished facts and that are necessary to substantiate the claims for service connection for a stomach disorder and for residuals of a left shoulder injury, and that they raise a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that the criteria for reopening the claims for service connection for a stomach disorder and for residuals of a left shoulder injury are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Diabetes Mellitus and Peripheral Neuropathy The RO denied the claims for diabetes mellitus and peripheral neuropathy in June 2005, in part, because the record failed to show that the Veteran was exposed to herbicides during service in order to be entitled to presumptive service connection. Additionally, there was no evidence linking diabetes mellitus or peripheral neuropathy to his period of service or to a service- connected disability. Additional evidence added since the June 2005 rating decision includes copies of the Veteran's service personnel records, a Meritorious Unit Commendation for participation in Linebacker I and II in support of combat operations against the enemy in North Vietnam and the Republic of Vietnam during 1972, the Veteran's statement that he was sent to land to pick up spotters who were used to plot grids for combat firing, and a July 2009 addendum opining that the Veteran peripheral neuropathy is a separate condition from his radiculopathy and is the result of his diabetes mellitus. The Board finds that this additional evidence is neither cumulative nor duplicative of evidence previously of record nor was it previously considered by agency adjudicators, and as such it is "new." When this information is considered, along with the Veteran's MOS (military occupational specialty) and the award of a Vietnam Service Medal and a Combat Action Ribbon (CAR), it is likely that the Veteran was present on the landmass of Vietnam on at least one occasion during 1972, and is thus he is presumed to have been exposed to herbicides. As this information relates to facts that may provide a reasonable possibility of substantiating the Veteran's claims for service connection for diabetes and for diabetic peripheral neuropathy, it bears directly and substantially upon the specific matters under consideration and must be considered in order to decide the merits of the claims. Accordingly, the Board concludes that the criteria for reopening the claims for service connection for diabetes mellitus and peripheral neuropathy are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). 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 C.F.R. § 3.303(d). To prevail on the issue of service connection, generally, 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 addition, certain chronic diseases may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309. For injuries that are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2010). However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). In some circumstances, a disease, such as diabetes mellitus, type II, associated with exposure to certain herbicide agents (e.g., Agent Orange) will 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). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Exposure to Agent Orange A veteran who, during active military, naval, or air service, 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 the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, through May 7, 1975, and includes service in the waters offshore, or 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). See VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace). See also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in the Republic of Vietnam). The Vietnam Service Medal (VSM) was awarded to all members of the armed forces who served in Vietnam and contiguous waters and airspace between July 3, 1965 and March 28, 1973. To qualify for award of the VSM an individual had to meet one of the following qualifications: (1) be attached to or regularly serve for 1 or more days with an organization participating in or directly supporting military operations; (2) be attached to or regularly serve for 1 or more days aboard a Naval vessel directly supporting military operations; (3) actually participate as a crewmember in one or more aerial flights into airspace above Vietnam and contiguous waters directly supporting military operations; and (4) serve on temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that time limit may be waived for personnel participating in actual combat operations. Manual of Military Decorations and Awards, Sept. 12, 1996. As noted, under the applicable law discussed above, "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. See 38 U.S.C.A. § 1116(a)(1)(A), (f); 38 C.F.R. § 3.307(a)(6)(iii). The interpretation of the quoted language has been the subject of extensive litigation, in Haas v. Nicholson, 20Vet. App. 257 (2006), and Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), reh'g denied, 544. F.3d 1306 (2008), cert. denied, 129 S. Ct. 1002 (2009). In its May 2008 decision, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) found that VA reasonably had interpreted the statute and regulation as requiring the physical presence of a veteran within the land borders of Vietnam (including inland waterways) during service, and noted (quoting from Presidential Executive Order No. 11231 (July 8, 1965)), that the receipt of the VSM alone does not establish service in Vietnam. Haas v. Peake, 525 F.3d at 1188. The U. S. Supreme Court declined to review the case, and the decision of the Federal Circuit in Haas v. Peake is now final. The Veteran served on active duty in the Navy from November 1971 to November 1974 and from December 1974 to April 1978. His personnel records reveal that he served aboard the USS Floyd B. Parks during 1972. His DD Form N214 reflects that his primary MOS was as a 9700 (infantry, gun crews, and seamanship specialist). See http://www.bupers.navy.mil/ReferenceLibrary/NECOS/..../9700- 9799.htm. He was awarded the National Defense Service Medal (NDSM), the Vietnam Campaign Medal (VCM), the VSM, and a Combat Action Ribbon (CAR). A September 2008 National Personnel Records Center (NPRC) response (PIES request) confirms that the USS Floyd B. Parks conduct periods of naval gunfire support operations in the coastal waters of the Republic of Vietnam and participated in operation Linebacker against the coastal defenses in the coastal waters of North Vietnam from July 19, 1972 to August 19, 1972, from September 2, 1972 to September30, 1972, from October 15, 1972 to November 15, 1972, and from December 1, 1927 to December 27, 1972. As noted above, the Veteran was awarded a Meritorious Unit Commendation for participation in Linebacker I and II in support of combat operations against the enemy in North Vietnam and the Republic of Vietnam during 1972. During this time period, the Veteran asserts that his duties included being sent to land to pick up spotters who were used to plot grids for combat firing. The Board acknowledges that VA was unable to confirm the Veteran's in-country service or visitation. It appears clear that the Veteran's accounts of going ashore in Vietnam from his ship, although not verified by Navy records, are consistent with his MOS and the mission of his ship during combat operations against the enemy during 1972, and that they are unlikely to have been documented. In light of the facts that the Veteran was awarded a CAR, the receipt of a meritorious unit commendation for participation in combat operations, and his statements that his duties required him to transport spotters to and from his ship to shore, there is substantial, credible and persuasive evidence to support that on at least one or more occasions, the Veteran was in fact on land in Vietnam. Accordingly, resolving reasonable doubt in the Veteran's favor, and without finding error in the previous action taken by the RO, the Board will exercise its discretion to find that the evidence is in relative equipoise, and thus the Veteran is presumed to have been exposed to herbicides during the Vietnam era. Diabetes Mellitus and Peripheral Neuropathy The law further provides that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for type II diabetes mellitus. Presumptive service connection for these disorders as a result of exposure to herbicides is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.310 (which was revised effective in October 2006), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2010). Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id; see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was diagnosed with diabetes mellitus in 2001, when laboratory testing revealed abnormal glucose findings and he was subsequently diagnosed with diabetic peripheral neuropathy. In a July 2009 addendum to a May 2009 VA examination report, the VA examiner noted that a recent EMG showed mild nerve root irritation at bilateral L4 and right L5 nerve root, which indicate mild radiculopathy. However, the VA examiner stated that the EMG findings were more indicative of diabetic peripheral neuropathy. Thus, he opined that the Veteran's current condition is not likely related to his in-service complaints as the Veteran was not diagnosed with diabetic peripheral neuropathy until 2001 and that is a separate condition from his radiculopathic pain. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for diabetes mellitus, type II, and for peripheral neuropathy, secondary to diabetes mellitus, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A Stomach Disorder and Residuals of a Left Shoulder Injury The Board next turns to whether the preponderance of the evidence of record shows that the current diagnoses of GERD and arthropathy of the left AC joint are otherwise related to the Veteran's service. Here, the Board finds that the weight of the evidence is against all the claims. A review of the Veteran's service treatment records reveals treatment for is a single complaint of stomach problems in September 1974, when the Veteran presented with complaints of stomach cramps. A June 1975 treatment record reflects that the Veteran sustained soft tissue trauma to the left clavical and shoulder. Examination at that time showed the Veteran had full range of motion of the left shoulder with slight tenderness and swelling at the AC joint. X-rays of the left shoulder revealed no abnormal findings. The report of a December 1977 examination prior to separation from the Veteran's second period of service reflects normal clinical findings for stomach and upper extremities. On the associated report of medical history, the Veteran denied any problems involving his stomach or shoulders. The first medical evidence of chronic stomach problems and left shoulder problems are not shown until decades after the Veteran's discharge from service. While the post-service medical records reflect that the Veteran complained of stomach problems and left shoulder problems shortly after his discharge from service, there were no abnormal findings noted during a December 1978 VA examination. At that time, physical examination revealed no evidence of any abnormalities in the upper extremities. Left shoulder x-rays and a gastrointestinal (GI) series were negative. Subsequent VA treatment records show that the Veteran continued to complain of left shoulder pain, but there was no finding of any abnormalities until December 2000 when it was determined that the Veteran had left shoulder impingement. The next medical evidence of any stomach problems is not shown until 2005, and it was thought that the Veteran's abdominal problems may be related to his anxiety symptoms. See VA treatment record dated June 2005. A July 2005 abdominal computed tomography (CT) scan revealed no abnormal findings. Subsequent 2005 VA treatment records show that the Veteran was diagnosed with GERD, and this is the first medical finding of a chronic stomach disorder. The Veteran was afforded a VA examination in May 2009 in conjunction with his claims for a stomach disorder and residuals of left shoulder injury. In the examination report, the VA examiner recorded the Veteran's reported history for each alleged disorder. Following examination, the diagnoses included mild left AC joint arthropathy and GERD with enteritis. In a July 2009 addendum to the May 2009 VA examination report, the VA examiner provided medical opinions regarding the etiologies of the diagnosed disorders identified in the May 2009 VA examination report. After review of the claims file and based on the clinical findings from examination, the examiner opined that the Veteran's current left AC joint arthropathy was not likely related to military service, to include an in-service injury to his left clavicle. The examiner observed that there was no evidence of a chronic left shoulder disorder shown until 22 years after his separation from service. The examiner felt that any residual of his in-service left shoulder injury would be more severe than current degenerative changes shown in the left shoulder. Lastly, the VA examiner opined that the Veteran's current stomach disorder is not likely related to his single in- service complaint of stomach cramps. The VA examiner noted that there was no finding of chronic or recurrent stomach problems shown during the Veteran's period of service. Here, the medical evidence shows that the Veteran did not have any chronic stomach or left shoulder disorders, until well beyond the first year after his separation from service. The long evidentiary gap between the Veteran's active service and the earliest medical evidence of GERD and AC joint arthropathy weighs heavily against the Veteran's claims on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In addition, the record lacks any persuasive medical evidence establishing a possible relationship between the Veteran's current stomach and left shoulder disorders and active service. The most probative evidence of record, the May 2009 VA examiner opinion is against a link between the Veteran's current diagnosed stomach and left shoulder disorders and military service. There is no other medical evidence that links either of these two current disorders to service nor has the Veteran claimed that there is. See 38 C.F.R. § 3.303(d). The Board has considered the Veteran's assertions that his diagnosed stomach and left shoulder disorders are etiologically related to service; however, this is not credible and persuasive evidence. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (no probative weight in the absence of evidence that he or she has the expertise to render opinions about medical matters). While the Veteran is competent to attest to incidents that occurred in service, and the symptoms that he has experienced since service, he is not competent to provide a medical opinion on etiology of his current diagnosed disorders. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran's assertions of chronicity are not credible because, on VA examination in December 1978, there were no objective findings of any stomach or left shoulder disorder nor were there any complaints made or objective findings of any stomach or left shoulder disorder found during the June 1995 VA Agent Orange examination performed more than 16 years later. It was not until more than five years later that a left shoulder disorder was diagnosed and another five years thereafter that a stomach disorder was diagnosed. Here, the VA examiner has opined that the Veteran's current left shoulder and stomach disorders are not related to service after taking the Veteran's history, performing a physical examination and reviewing the claims file. In sum, the preponderance of evidence does not show the Veteran had a stomach disorder or a left shoulder disorder until many years after his separation from service. Further, there most probative evidence of record is against linking the Veteran's current diagnosed disorders to service. 38 C.F.R. § 3.303. The evidence of record is not in relative equipoise. Accordingly, as the preponderance of the evidence is against the claims for entitlement to service connection for a stomach disorder (diagnosed as GERD), and a left shoulder disorder, therefore the claims must be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER As new and material evidence has not been received to reopen the claim for service connection for bilateral leg weakness, the appeal is denied. As new and material evidence sufficient to reopen a claim for service connection for a stomach disorder has been received, the Veteran's previously-denied claim is reopened. Service connection for a stomach disorder is denied. As new and material evidence sufficient to reopen a claim for service connection for residuals of a left shoulder injury has been received, the Veteran's previously-denied claim is reopened. Service connection for residuals of a left shoulder injury is denied. As new and material evidence has been received to reopen the claim for service connection for diabetes mellitus, the claim is reopened. Service connection for diabetes mellitus due to presumed exposure to herbicides is granted. As new and material evidence sufficient to reopen a claim for service connection for peripheral neuropathy has been received, the Veteran's previously-denied claim is reopened. Service connection for peripheral neuropathy, secondary to service-connected diabetes mellitus, is granted. REMAND The Veteran seeks entitlement to service connection for right shoulder and cervical spine disorders. Based on a review of the record, the Board finds that additional development is warranted. The Veteran has not yet been afforded a VA examination in conjunction with his claims for service connection for right shoulder and cervical spine disorders. He has current diagnoses of right shoulder impingement and chronic cervical spine pain. The Veteran reports that he injured his right shoulder and neck in service, when he fell down a ladder while on board a naval vessel. He also reports having symptoms of right shoulder pain and neck pain since service. The Board is aware that lay statements may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, a review of the Veteran's service records shows that while the Veteran was stationed on a naval vessel in September 1972, he fell down a ladder and he required three days bed rest for his injuries. The nature and severity of his injuries were not given. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. Since the medical evidence of record is insufficient, VA should supplement the record by seeking an advisory opinion, or ordering a medical examination to support its conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination in conjunction with his right shoulder and cervical spine claims in order to determine nature and etiology of the alleged disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Prior to any examination sought, VA should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and an attempt should be made to obtain such records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, records of which are not associated with the claims file. The records requested must include, but are not limited to, VA treatment after August 19, 2009. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. VA must then seek to obtain the identified relevant medical records. All records and/or responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After completion of 1 above, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any right shoulder and cervical spine disorders found. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include x-rays and neurological studies, if needed) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should clearly identify any right shoulder and cervical spine disorder(s) found. With respect to each diagnosed disorder, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that such disorder (1) was incurred in or aggravated by the Veteran's periods of active duty, to include due to an in-service injury(ies) or (2) had its onset within one year of the Veteran's discharge from service on April 28, 1978, if arthritis is diagnosed. The examiner should also opine as to whether any such disorder likely was caused, or is aggravated, by the Veteran's service- connected residuals of a low back strain injury with lower extremity radiculopathy and not due to the natural progression of the disease. If aggravation of a nonservice-connected disorder by any service-connected disability is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's medical, occupational, and recreational history prior to, during, and since military service. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. After completion of 1 and 2 above, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 4. After completion of the above and any additional notice or development deemed necessary, readjudicate the claims remaining on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental SOC and be afforded an opportunity to respond before the case is returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that is 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). ______________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs