Citation Nr: 1115669 Decision Date: 04/21/11 Archive Date: 05/04/11 DOCKET NO. 09-38 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease, status post bypass graft, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from September 1964 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs. The issues have been recharacterized to better reflect the evidence of record and current law. With respect to diabetes, the claims file reflects that a prior claim of service connection was denied in 2002. Unfortunately, the Veteran's original claims file was lost when recalled from a VA storage facility upon receipt of the current claim for benefits. All records associated with the 2002 denial are missing. As it is therefore impossible to judge whether evidence submitted in connection with the current appeal was previously considered, the question of reopening is dropped from consideration, and the appeal is considered on the merits. With respect to coronary artery disease, the issue now reflects the change in regulation naming ischemic heart disease as a presumptive condition for herbicide exposed Veterans. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam between January 9, 1962, and May 7, 1975, and may not be presumed to have been exposed to herbicides. 2. The evidence of record is against a finding that the Veteran was actually exposed to herbicides during his active military service. 3. Diabetes mellitus, type II, was not first manifested on active duty service or within the first post-service year; the evidence of record is against a finding that currently diagnosed diabetes is related to active military service. 4. Coronary artery disease was not first manifested on active duty service or within the first post-service year; the evidence of record is against a finding that currently diagnosed coronary artery disease is related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection of diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. The criteria for service connection of coronary artery disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2010). A September 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service personnel records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was not conducted as there is no allegation or evidence of either claimed condition in service or any reasonable possibility, however slight, of a nexus to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As was noted above, the Veteran's original claims file was lost, and the current file has been rebuilt. In such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA informed the Veteran of the missing file in repeated letters from September 2008 forward, requested that he submit all records in his possession, and identified alternative records which might be helpful in substantiating his claim. VA also took all reasonable steps to locate and recover the lost file; these efforts are documented in a February 2009 memorandum to the file. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Diabetes mellitus and coronary artery disease/arteriosclerosis are listed chronic diseases for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Certain other diseases, including type II diabetes mellitus and ischemic heart disease (which includes coronary artery disease), are presumed service connected for Veterans who were exposed to herbicides in service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). The claimed conditions may be manifested to a compensable degree at any time following exposure. 38 C.F.R. § 3.307. A Veteran may establish exposure to herbicides on a factual basis, or exposure may be presumed if the Veteran served in Vietnam between January 9, 1962, and May 7, 1975, or in Korea with certain units along the DMZ from April 1, 1968, to August 31, 1971. 38 C.F.R. § 3.307. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As the analyses relevant to diabetes and coronary artery disease are substantially similar, they are discussed together. The Veteran has at no time alleged, and the evidence of record does not show, that either diabetes or heart disease was first manifested during his active military service. Private medical records indicate a diagnosis of adult onset diabetes mellitus between 1992 and 1994; the Veteran and his wife have verified this timeline in their statements. Coronary artery disease was diagnosed at about the same time, according to doctors, though the diagnosis of diabetes apparently came first. As neither condition was manifested in service or for many years after, service connection on a direct basis or as a presumptive chronic condition is not warranted. The Veteran has alleged that he is entitled to service connection for both diseases based on exposure to herbicides during service. He alleged that exposure caused diabetes, which in turn caused coronary artery disease. The addition of ischemic heart disease to the list of presumptive condition for herbicide exposed Veterans, effective in August 2010 requires consideration of not only any secondary relationship, but also the merits of a claim for presumptive service connection based on herbicide exposure for the heart disease. 75 Fed. Reg. 53,202 (August 31, 2010). The Veteran does not allege that he served in Vietnam or Korea during the applicable time periods, nor do service personnel records associated with the claims file establish such. He is therefore not presumed to have been exposed to herbicides, and must factually establish actual exposure. The Veteran's military occupational specialty in service was dental assistant; his duties as such did not include the handling of or routine exposure to herbicides. However, the Veteran argues that he received "second hand" exposure to herbicides when performing dental treatment on military personnel in Japan. He alleges that many of the patients he worked on were recently in Vietnam, and they were therefore exposed to herbicides. They transmitted their exposure to him through the close contact of dental examinations and treatment. Service records confirm his Pacific service with various Marine Air Groups as part of their associated dental companies. Unfortunately, exposure to herbicides cannot be conceded. First, there is no evidence of record documenting how frequently he came in contact with military personnel who had been in Vietnam. The Veteran does not argue that every patient had recently been in Vietnam, and any such assertion would be incredible. This means that, even if second hand exposure is possible, the degree of such in this Veteran's case cannot be determined. Second, it is equally incredible to conclude that every service member who had been in Vietnam came directly from Vietnam to his dental chair directly. Some, if not most or all, would have showered or changed clothes, if only to ensure compliance with uniform requirements outside the Vietnam theatre, further reducing the possibility of exposure. Third, while any Veterans he saw in the course of his duties who came from a tour in Viet Nam may be presumed exposed to herbicides for the purpose of any claim they may have, the Veteran must show exposure on a direct basis. Absent any evidence that they were, in fact, sprayed with or otherwise exposed to any herbicides, his argument for direct exposure on a second hand basis is without support. Even if the Veteran could rely on the presumption of exposure for every Veteran he saw who had been in Viet Nam, his claim relies upon a series of events and contact exposures, with each step further removed from any actual direct exposure to herbicide prior to his interaction with any of the stated links. His actual exposure to herbicides is so attenuated and remote as to be, in effect, nil. In sum, the Veteran may not be presumed to have been exposed to herbicides, and the weight of the evidence of record is against a finding of any actual exposure. In the absence of such exposure, either direct or presumed, presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309(e) is not possible for either diabetes or heart disease. Further, as diabetes is not service connected, secondary service connection for heart disease due to diabetes is not possible. The weight of the evidence is against the claims; there is no doubt to be resolved. Service connection for type II diabetes mellitus and coronary artery disease is not warranted on a direct, presumptive, or secondary basis. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for coronary artery disease is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs