Citation Nr: 1237149 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-07 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for a lung disorder, to include as due to asbestos exposure. 3. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sonnet Gorham, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to August 1957 and from January 1958 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and February 2010 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A hearing was held before the undersigned in September 2012. A transcript of that hearing is of record. At that time the Veteran submitted additional evidence to the Board, along with a waiver of initial agency of original jurisdiction (AOJ) consideration of that evidence. See Board Hearing Transcript (Tr.) at 2. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Id.; 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for lung and skin disorders are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Diabetes mellitus was not shown in service or for many years thereafter, and is not otherwise related to an event or injury in service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in May 2008, the AOJ provided notice to the Veteran pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the notice informed the Veteran of the information and evidence necessary to substantiate his claim for service connection and the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. Additionally, the notice informed the Veteran of the information and evidence that governs the assignment of disability ratings and effective dates. Accordingly, the duty to notify has been satisfied. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA medical records, and pertinent identified private medical records have been obtained. Additionally, the Veteran provided testimony at a September 2012 Board hearing. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. In this regard, the Board acknowledges the Veteran's testimony that he received treatment for diabetes by T.L., M.D., in the 1970s. See Board Hearing Tr. at 9. Additionally, in conjunction with an unrelated claim, the Veteran submitted an October 1986 letter from Dr. T.L. that indicates the Veteran has been his patient since 1979. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that VA's duty to assist extends only to obtaining relevant records, and there must be a reason to believe that records may give rise to pertinent information to conclude that they are relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). In this case, however, the diabetes claim does not turn on the medical evidence or treatment records dated since 1979. Rather, the outcome is based upon whether the Veteran was exposed to herbicides during service, or alternatively whether the Veteran evidenced diabetes within one year of separation from service, or by 1967. Therefore, the Board finds that any records from Dr. T.L. would not be relevant to the claim for service connection for diabetes. The Board has also determined that a VA examination is not necessary in this case, as the information and evidence of record is sufficient to decide the claim. See 38 C.F.R. § 3.159(c)(4)(2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the evidence does not suggest and the Veteran does not contend that he suffered from diabetes during service or within the year following discharge. Additionally, there is no competent and credible evidence that the Veteran was ever physically on land in Vietnam during active duty or otherwise exposed to herbicides. Moreover, there is no evidence indicating an association between the Veteran's diabetes and his military service. Therefore, a VA examination is not warranted. Id; see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). The Veteran was also provided with an opportunity to set forth his contentions during the September 2012 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the September 2012 hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Accordingly, the duty to assist has also been fulfilled, and appellate review may proceed without prejudice to the Veteran. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). A veteran is also entitled to a presumption of service connection if he is diagnosed with type II diabetes mellitus as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2012). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Private medical records dated in 2006 from N.K., M.D., as well as VA outpatient records dated since 2003, show that the Veteran receives treatment for diabetes. The first Hickson element has clearly been satisfied. Turning to Hickson element (2), in-service incurrence of disease or injury, the Board will separately address disease and injury. Concerning in-service disease, there is no medical or other evidence of diabetes mellitus in service or within the one year presumptive period after service found in 38 C.F.R. § 3.309(a). The Veteran's service treatment records are entirely silent as to any complaint, treatment, or diagnosis of diabetes mellitus. Instead, diabetes mellitus is not demonstrated until 2003, almost 40 years after service and well beyond the period for presumptive service connection. In this regard, the Board acknowledges the Veteran's testimony as to having received treatment from Dr. T.L. in the 1970s. See Board Hearing Tr. at 9. Assuming that he was diagnosed with diabetes upon his initial visit, which according to the above-referenced statement from Dr. T.L. occurred in 1979, presumptive service connection is still unavailable. With regard to in-service injury, the Veteran contends that his diabetes mellitus is a result of exposure to herbicides. He did not serve in the Republic of Vietnam during his period of active duty, nor does he so argue, so exposure to herbicides cannot be presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). Instead, the Veteran asserts that he was exposed to herbicides in conjunction with his duties as a jet mechanic at Travis Air Force Base (AFB) in California, most likely between 1964 and 1965. See, e.g., the Veteran's December 2009 Statement in Support of Claim. A review of the record reveals no evidence to substantiate the Veteran's account. In May 2008, the AOJ requested from the National Personnel Records Center (NPRC) all documents pertaining to the Veteran's alleged exposure to herbicides. In July 2008, the NPRC responded that there were no such records. In August 2009, the AOJ submitted a request to VA's Compensation and Pension (C&P) Service Agent Orange Mailbox for a review of the Department of Defense's (DoD's) inventory of herbicide operations in an attempt to verify the Veteran's alleged exposure to liquid he believed was Agent Orange from leaking barrels aboard the C-133 aircraft he serviced. See the August 2009 Decision Review Officer Informal Conference Report. In November 2009, a C&P representative responded that a search of the DoD documents was negative for any evidence of testing, storage, or transportation of tactical herbicides such as Agent Orange at Travis Air Force Base. The representative further indicated that: In general, tactical herbicides were developed for Vietnam and used there. Tactical herbicides produced in the U[nited ]S[tates] were shipped by merchant vessels from the Port of Mobile, Alabama to Vietnam. Tactical herbicides were not sent to Vietnam by aircraft stationed in California and were not returned from Vietnam to California. Therefore, I cannot provide any evidence to support the claim. The C&P representative advised the AOJ to next refer the case to the U.S. Army & Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Unit Records Research (CURR)) with the Veteran's military unit, location, dates at the location, military occupation, and any other relevant facts, and emphasized that "the JSRRC will generally only research a 60 day time frame." In November 2009, the AOJ wrote to the Veteran and requested that he provide a detailed description of his exposure to Agent Orange, including approximate dates within a 60-day timeframe in order to facilitate a possible research request to the JSRRC. In December 2009, the Veteran indicated that he could not provide a definitive date of exposure, and that he assumed it occurred in 1964 or 1965. In April 2010, the Veteran again informed the AOJ that he was exposed to Agent Orange from working on C-133 aircraft. However, this time he asserted an alternative means of herbicide exposure, namely that he was exposed to C-133 aircraft contaminated with herbicides from transporting helicopters used in Vietnam. See also Board Hearing Tr. at 4. The Veteran again failed to provide a searchable date range, and in September 2010, the JSRRC coordinator issued a formal finding of a lack of information to verify herbicide exposure through JSRRC. See VA Adjudication Procedure Manual Rewrite (M21-1MR), pt. IV, subpt. ii, ch. 2, sec. C.10o. At his Board hearing, the Veteran submitted a number of documents in an attempt to support his contention of herbicide exposure. However, none of these documents contains any information or analysis specific to the Veteran's appeal, and therefore have little, if any, probative value in the instant case. Specifically, an affidavit from W.P.M. details his removal of warning signs from contaminated incoming helicopters from Vietnam to the Corpus Christi Army Depot in 1966, and an internet post from S.P. describes his exposure to Agent Orange while working on C-133 aircraft as an Air Force mechanic in Okinawa and Guam in 1965. Neither of these statements provides support to the Veteran's claim, as they did not serve at Travis AFB with the Veteran at the time of his alleged exposure. Similarly, an internet article describing the return of UH-1 Iroquois helicopters aboard C-133 aircraft to Vietnam after repair of battle damage in Corpus Christi, Texas, does not avail the Veteran, as he was not stationed there. A photograph of a C-133 in Vietnam is also unpersuasive, as there is no evidence that the Veteran came into contact with that specific aircraft. The list of members of the 731st/74th who have illnesses related to Agent Orange exposure is of no probative value, as the Veteran served with the 1511th Organizational Maintenance Squadron during the period in question. Finally, the 2012 letter providing an opinion about November 1994 dioxin readings on contaminated C-123 planes, the November 1994 review of data of dioxin levels from those same aircraft, and the two consultative letters addressing dioxin exposure in relation to C-123 aircraft are of no probative value, as they describe events occurring on aircraft the Veteran did not service years after his alleged exposure. The Board has also considered the Veteran's lay statements. However, as noted above, the response from the C&P representative discredits the Veteran's assertion that the C-133 aircraft he serviced were utilized to transport containers of herbicides to and from Vietnam. With regard to his later assertion that the aircraft were contaminated as a result of carrying helicopters that were used in Vietnam, the Veteran has provided no information as to how he knew that the helicopters aboard the aircraft had come into contact with herbicides. Indeed, prior to introducing some of the above-referenced studies at the Board hearing, the Veteran's representative conceded that there was no evidence supporting the Veteran's contention that the specific aircraft he serviced at Travis AFB housed contaminated equipment. See Board Hearing Tr. at 5. As such, the Veteran's second assertion is too speculative to constitute credible evidence of herbicide exposure in service. In short, the Board places greater probative value on the research from the NPRC and the C&P representative that is negative for any evidence of herbicide exposure than the recent statements of the Veteran to the contrary. Thus, the Board finds that a preponderance of the evidence is against a finding of in-service herbicide exposure. Accordingly, as Hickson element (2) is not satisfied, service connection for diabetes mellitus is not warranted. ORDER Entitlement to service connection for diabetes mellitus is denied. REMAND Further development is required prior to adjudicating the Veteran's claims for service connection for lung and skin disorders. Regarding the claim for a lung disorder, the Veteran underwent a VA examination in February 2009. A review of the examination report shows that, after physical examination and diagnostic testing, the VA examiner concluded the Veteran evidenced a "restrictive spirometry pattern." The examiner then opined that the Veteran's "pulmonary difficulty with suggestive shortness of breath" was not due to asbestosis. However, the examiner did not indicate whether the Veteran's demonstrated symptoms are reflective of a current diagnosis other than asbestosis, and in turn whether such diagnosis is related to conceded asbestos exposure during military service. Such deficiencies must be remedied on remand. See 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Additionally, the Veteran submitted a February 1989 statement from attorney F.H.F. regarding his receipt of payment in conjunction with a class action lawsuit against Johns-Manville, and the Veteran's representative testified that this settlement was based on evidence of fibrosis and pleural thickening in the Veteran's lungs associated with asbestos exposure. See Board Hearing Tr. at 14. Upon remand, all pertinent documents pertaining to that lawsuit should be obtained. 38 C.F.R. § 3.159(c)(1) (2012). Concerning the claim for service connection for skin disorder, this matter was originally claimed as service connection for a facial rash and adjudicated as a claim of service connection for chloracne. However, VA outpatient records reflect that the Veteran has been diagnosed with dermatitis, xerosis, actinic keratosis, seborrheic keratosis, and rosacea. In Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009), the Court held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In consideration of this holding, the Board has recharacterized the issue as one for service connection for a skin disorder, so all potential skin diagnoses are considered. A February 2010 rating decision denied the claim for a skin disorder. In April 2010, within the one-year appeal period, the AOJ received a statement from the Veteran in which he indicated that he disagreed with the decision, and described a severe rash and pimples on his face. The Board concludes that this statement can reasonably be construed as a Notice of Disagreement (NOD) regarding the denial of service connection for a skin disorder. 38 C.F.R. §§ 20.201, 20.302 (2012); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (noting that VA must liberally construe all documents filed by a claimant). Following the submission of the aforementioned statement in April 2010, the AOJ has not issued a statement of the case (SOC) regarding the issue of entitlement to service connection for a skin disorder. In these circumstances, where an NOD is filed, but an SOC has not been issued, the Board must remand the claim for issuance of an SOC. 38 C.F.R. § 19.9(c) (2012); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, these remaining issues are REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. With any needed assistance from the Veteran, obtain all records related to the Veteran's involvement in a class action lawsuit against Johns-Manville in the 1980s from which he received a settlement for an asbestos-related lung disability. If such records are unavailable, the claims file should be clearly documented to that effect. 2. After the development requested in item 1 is completed, return the claims file to the VA examiner who conducted the February 2009 VA examination (or another examiner if unavailable) for preparation of an addendum opinion. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Request the VA examiner to provide opinions on the following: (a) Is the Veteran's demonstrated restrictive spirometry pattern and shortness of breath reflective of a current lung disability? (b) Is it as least as likely as not (50% or greater chance) that any currently diagnosed lung disability is related to any incident of military service, to include his conceded asbestos exposure therein? A report of the examination should be prepared and associated with the Veteran's claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Issue a Statement of the Case as to the issue of entitlement to service connection for a skin disorder. The Veteran should be advised of his appeal rights. If an appeal is perfected, the case should be returned to the Board, if otherwise in order. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claim of entitlement to service connection for a lung disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs