Citation Nr: 1237325 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 11-11 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as the result of herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as the result of herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Appellant had certified active service from October 27, 1954, to November 15, 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Detroit, Michigan, Regional Office (RO) which denied service connection for peripheral neuropathy of the right lower extremity and the left lower extremity claimed as the result of herbicide exposure. In January 2012, the Appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. In September 2012, the Appellant submitted a Motion to Advance on the Docket. In October 2012, the Board granted the Appellant's motion. The Board has reviewed both the Appellant's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. In May2009 and August 2009, the Appellant submitted informal claims of entitlement to service connection for peripheral neuropathy of the upper extremities. The issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Appellant had certified active service from October 27, 1954, to November 15, 1954. 2. The Appellant's service with the Merchant Marine from 1957 to 1968 does not constitute active military service. 3. The Appellant was not in the Republic of Vietnam during active service. 4. Peripheral neuropathy of the right and the left lower extremities has not been objectively shown to have originated during active service or for many years thereafter. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the right lower extremity claimed as the result of herbicide exposure was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 101(21), 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6(a), 3.7(x)(15), 3.102, 3.159, 3.303, 3.303(d), 3.307, 3.309, 3.326(a) (2012). 2. Peripheral neuropathy of the left lower extremity claimed as the result of herbicide exposure was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 101(21), 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6(a), 3.7(x)(15), 3.102, 3.159, 3.303, 3.303(d), 3.307, 3.309, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Active Service Active military, naval, and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(21) (West 2002); 38 C.F.R. § 3.6(a) (2012). Members of the American Merchant Marine in oceangoing service between December 7, 1941, and August 15, 1945, are considered to have performed active military, naval, or air service. 38 C.F.R. § 3.7(x)(15) (2012). The Appellant had certified active service with the Navy from October 27, 1954, to November 15, 1954. The Appellant has indicated that he subsequently served in the Merchant Marine from 1957 to 1968. He was aboard the S.S. Cornell Victory which sailed to the Republic of Vietnam and its waters in 1966 and 1967. Such Merchant Marine service does not constitute active military service. 38 C.F.R. § 3.7(x)(15) (2012). In reviewing the record, the Board observes that there are some notations that appear to indicate that the Appellant may have served in the Coast Guard in the 1960's. The January 2010 rating decision states that the Appellant "served in the Coast Guard from October 24, 1966, to October 24, 1967." The report of a September 2009 VA examination for compensation purposes states that: [The Veteran] served on active duty in the U.S. Navy from 1954 to 195 (sic) and in the Merchant Marine from 1957 to 1968. This included a tour of duty in the Merchant Marine, as part of the Coast Guard, in 1968 when he was exp[osed] to Agent Orange that was dropped from airplanes used to defoliate the jungle around the Mekong River in Vietnam, that he was patrolling on a U.S. Coast Guard boat. However, such service has not been verified. Repeated attempts by the RO to verify the Appellant's service in the Coast Guard have proven unsuccessful. Further, the Board finds that the Appellant's alleged Coast Guard service is in direct conflict with objective documentation of record and multiple statements from the Appellant himself. For example, photocopies of the Appellant's U.S. Merchant Marine identity card and Seaman's Medical Center card indicate that he was in the Merchant Marine from October 24, 1966, to October 24, 1967. A February 1967 Certificate of Discharge to Merchant Seaman notes that the Appellant served aboard he S.S. Cornell Victory from October 28, 1966, to February 3, 1967. In his December 2006 Veteran's Application for Compensation or Pension (VA Form 21-526), the Appellant reported that he had been in served in the Merchant Marine from October 24, 1966, to October 24, 1967. In his March 2010 notice of disagreement, the Appellant stated that he had sailed aboard the S.S. Cornell Victory to the Republic of Vietnam in October 1966 while in the Merchant Marine and arrived there in December 1966. He clarified that: Then we returned to the United States in 1967. After I got home, I sailed on the Great Lakes from July 1967 to June 1968. My feet and legs were numb, but I didn't think it was any thing! Then I went truck driving in 1968. Generally, VA is prohibited from finding on any basis other than an accurate and authentic service department document or service department verification that a particular individual served in the U.S. Armed Forces. See Soria v. Brown, 118 F.3d 747, 749 (Fed.Cir.1997) (concluding that in matters requiring service department certification "VA has long treated the service department's decision on such matters as conclusive and binding on ... VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces."). There is no service department documentation of any active military service beyond the Appellant's single period of active naval service. The Appellant has repeatedly acknowledged that he served on active military service only during such period. His subsequent Merchant Marine voyages do not constitute active military service. Therefore, the Board concludes that the Appellant's active military service consists solely of his certified active naval service from October 27, 1954, to November 15, 1954. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Where a veteran served continuously for ninety days or more during a period of war and an organic disease of the nervous system becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Where a veteran was exposed to an herbicide agent during active military, naval, or air service, and acute and subacute peripheral neuropathy become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6)(2012) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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. 38 C.F.R. § 3.307(a)(6)(iii) (2012). VA clinical documentation dated in February 2008 states that the Appellant was treated for bilateral lower extremity peripheral neuropathy "since his 60s of unknown etiology." At a September 2009 VA examination for compensation purposes, the Appellant was diagnosed with chronic diffuse sensorimotor polyneuropathy of the lower extremities. The Appellant's peripheral neuropathy of the lower extremities has not been objectively shown to have originated during active service or for many years thereafter. The Appellant was not in the Republic of Vietnam during his approximately 20 days of active naval service. No competent medical professional has attributed the onset of the claimed disabilities to active service. The Appellant advances solely that his peripheral neuropathy of the lower extremities was incurred secondary to his claimed herbicide exposure in the Republic of Vietnam in 1967 and 1968 while in the Merchant Marine. As the claimed herbicide exposure did not occur during a period of active service, it may not serve as the basis for an award of service connection. Peripheral neuropathy of the lower extremities was not manifested during the Veteran's brief period of active service or for many years thereafter. The disability has not been shown to have otherwise originated during active service. Therefore, service connection for both peripheral neuropathy of the right lower extremity and the left lower extremity is denied. Duty to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. The Board observes that VA issued several VCAA notices to the Appellant including a March 2009 notice which informed him of the evidence generally needed to support a claim of entitlement to service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The March 2009 VCAA notice was issued to the Appellant prior to the January 2010 rating decision from which the instant appeal arises. The Appellant's claims were readjudicated in the April 2011 statement of the case (SOC) issued to the Appellant. VA has secured or attempted to secure all relevant documentation to the extent possible. The Appellant was afforded a VA examination. The examination report is of record. The Appellant was afforded a videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. All identified and available relevant military, VA, and private documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Appellant's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Appellant are to be avoided). ORDER Service connection for peripheral neuropathy of the right lower extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs