Citation Nr: 1300155	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  10-30 902	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, with complications of diabetic retinopathy, erectile dysfunction and peripheral neuropathy, claimed as due to herbicide exposure.  

2.  Entitlement to service connection for basal cell carcinoma, claimed as due to sun and/or herbicide exposure.  


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION

The Veteran had active service from July 1963 to July 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision by the RO which denied the benefits sought on appeal.  A notice of disagreement was received in August 2009, a statement of the case was promulgated in May 2010, and the Veteran perfected his appeal in July 2010.  A hearing before the undersigned at the RO was held in June 2011.  


FINDINGS OF FACT

1.  The Veteran does not allege, nor do the service records show that he served in Vietnam, and the evidence does not establish that he was exposed to Agent Orange in service.  

2.  The Veteran's diabetes mellitus, diabetic retinopathy, erectile dysfunction and peripheral neuropathy were not present in service or until many years thereafter, and there is no competent evidence of a causal connection between the claimed disabilities and military service or any incident therein, to include any exposure to herbicide agents.  

3.  Basal cell carcinoma was not present in service or until many years after service and there is no competent evidence of a causal connection between the Veteran's excised basal cell carcinoma and military service or any incident therein, to include any exposure to herbicide agents or the sun.  



CONCLUSIONS OF LAW

1.  Diabetes mellitus, diabetic retinopathy, erectile dysfunction and peripheral neuropathy were not incurred in or aggravated by active duty, may not be so presumed, nor may any claimed disabilities be presumed to have been incurred as a result of herbicide exposure.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012).  

2.  Basal cell carcinoma was not incurred in or aggravated by active duty, and may not be presumed to have been incurred as a result of herbicide exposure.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  

The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in January and May 2006.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  All service treatment records (STRs) and VA medical records have been obtained and associated with the claims file.  The Board also reviewed the Veteran's VA electronic medical records.  The Veteran was examined by VA during the pendency of this appeal and testified before the undersigned at a hearing at the RO in June 2011.  

Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal.  

Concerning the January 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked.  

In the present case, while the undersigned VLJ did not discuss the bases of the prior RO determination, she asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claims.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  

Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and diabetes mellitus is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at section 3.309(e) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2012).  Diabetes mellitus type II, is among the diseases listed in 38 C.F.R. § 3.309(e).  

"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).  The recent Federal Circuit decision, Haas v. Peake, 525 F.3rd 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009), held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to the presumption of herbicide exposure and service connection constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii).  

The applicable criteria provide that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service.  No condition other than ones listed in 38 C.F.R. § 3.309(a), however, will be considered chronic.  38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 2002); 38 C.F.R. § 3.307(a) (2012).  

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period.  38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).  A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991).  

An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis.  A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993).  The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address."  Bielby v. Brown, 7 Vet. App. 260, 266 (1994).  

Factual Background & Analysis

The Veteran contends that he was exposed to herbicide agents from washing the uniforms of Marines after they returned from amphibious landing exercises on islands in the Caribbean and Mediterranean, where they used herbicides during "practice defoliation tactics."  The Veteran acknowledged that he did not serve in Vietnam but believes that his job as a laundryman exposed him to herbicide from washing the clothing worn by the Marines.  At the videoconference hearing, the Veteran testified that he was not sure what the specific types of defoliants that he was exposed to in service, but believed that it was Agent Orange.  He also testified that he was given a blood test at his place of employment about a year after service (1966) and was told that he was borderline diabetic, but that he never followed up on it until it started to bother him about 10 or 15 years later.  The Veteran reported that the company closed and that the alleged medical records were not available.  

Initially, the Board notes that while the Veteran was asked on at least three occasions to provide VA with the names and addresses of the healthcare providers who treated him for diabetes since his discharge from service, he has not provided VA with any specific or detailed information concerning any of his disabilities.  The Veteran testified in June 2011, that he was told he was borderline diabetic about a year after service, but that he didn't do anything about until it started to bother him 10 or 15 years later.  However, when examined by VA in August 2006, he reported that his diabetes was discovered on a routine physical examination about 13 years earlier, and that he was started on medication at that time.  When initially seen for his diabetes by VA in June 1998, the Veteran reported that he was diagnosed when he was 48 years old, which given his date of birth, would have been around 1992.  

Given the Veteran's inconsistent and contradictory statements regarding the onset of his diabetes, and his complete lack of cooperation in providing VA with any information that could be used to obtain his initial treatment records or any other pertinent medical evidence, the Board has serious reservations as to his ability to provide accurate and reliable information and reflects negatively on his credibility.  

Based on the current evidence of record, it would appear that the Veteran's diabetes was first diagnosed sometime in 1992 or 1993.  A VA outpatient note, dated in July 2005, showed that the Veteran has been treated for erectile dysfunction (ED) since January 2003.  A VA outpatient note showed that the Veteran underwent excision of a basal cell carcinoma from the left forearm in April 2004.  Trace nonproliferative diabetic retinopathy of the left eye, and mild diabetic peripheral neuropathy of the lower extremities was diagnosed on VA examinations in August 2006.  

Turning to the merits of the Veteran's claim, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 are specifically limited to those individuals who were actually physically present in the boundaries of the Republic of Vietnam at some point during service.  In this case, the Veteran does not claim, nor do the records demonstrate that he physically visited or had duty in the Republic of Vietnam.  Because the Veteran does not meet the criteria of having "service in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii), his claim must fail on the basis of the presumptive regulations.  

Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'd Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  

In this regard, the Veteran does not claim, nor do the STRs show any complaints, treatment, abnormalities, or diagnosis referable to diabetes, retinopathy, ED, peripheral neuropathy or any skin abnormalities, including basal cell carcinoma in service or until more than 27 years after discharge from service.  At this point, it should be noted that the Veteran was shown to have acne on his service enlistment and separation examinations.  However, there was no indication or claim of any skin abnormalities associated with basal cell carcinoma or sun exposure during service or until 2004, some 39 years after service.  Further, service connection for severe nodulocystic acne with severe acne scaring was denied by the RO in February 2002.  

Concerning the Veteran's allegation that he was exposed to herbicide agents from washing contaminated Marine uniforms, he has not provided any detailed information regarding the circumstances of the alleged exposure, vis-à-vis, the dates and places where the alleged exposure occurred, other than to indicate that the training took place on some unidentified islands in the Caribbean and Mediterranean.  Without the Veteran's cooperation, further investigation of his allegations is not possible.  

Furthermore, the Board has reviewed the Department of Defense (DoD) list of sites where herbicides were used outside of Vietnam.  Actual herbicide exposure, however, cannot be confirmed for any of the dates of the Veteran's service.  Notably, DoD confirms the use of herbicides at specific sites in Puerto Rico in 1956, some seven years before the Veteran entered service, and again in 1967 and 1968.  Overall, none of the DoD records confirmed the use of herbicides in the Mediterranean or on any other islands in the Caribbean during the Veteran's military service.  Additionally, the Board notes that the DoD records showed that the use of herbicides in Puerto Rico were conducted under controlled test conditions.  There is nothing in the records that even remotely suggest that the herbicides were used by Marines for "practice defoliation tactics" or for any other training purposes.  

As to the Veteran's claim of exposure to herbicides from washing contaminated clothing, he has not presented any competent or scientific evidence to support his assertions.  The Veteran is certainly competent to report on factual matters of which he has first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Here, however, the Veteran only suspects that he was exposed to herbicides, based on his alleged conversations with unidentified Marines.  The Veteran's belief that he was exposed to herbicides in service is of little probative value and is not assigned any evidentiary weight.  The Veteran is not competent to diagnose chemical compounds so his lay assertion is heavily outweighed by competent DoD evidence to the contrary.  As there is no competent evidence of record that shows the Veteran was exposed to herbicides in service, the Board finds no basis for a favorable disposition of his claim for diabetes mellitus or basal cell carcinoma due to herbicide exposure.  Accordingly, service connection for diabetes mellitus and basal cell carcinoma is denied.  

Concerning the claims for additional disabilities associated with diabetes mellitus, i.e., diabetic retinopathy, erectile dysfunction and peripheral neuropathy, the provisions of 38 C.F.R. § 3.310 only apply to service connection for secondary disabilities caused by a service-connected disability.  Thus, the Board concludes that there is no legal basis of entitlement to secondary service connection for diabetic retinopathy, erectile dysfunction and peripheral neuropathy because the Veteran has not been granted service connection for the disorder (diabetes mellitus), that caused the additional disabilities.  Accordingly, the application of the law to the facts is dispositive, and the appeal must be terminated because there is no entitlement under the law to the benefit sought.  See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).  

Finally, regarding the claim for basal cell carcinoma due to sun exposure, the Veteran has not provided any competent medical or credible, probative evidence that the basal cell carcinoma excised from his left forearm in 2004, was related to sun exposure in service.  Other than facial acne noted on his service enlistment and separation examinations, the STRs are completely silent for any complaints, treatment, abnormalities or diagnosis for any skin problems, including basal cell carcinoma or from exposure to the sun in service or until nearly 40 years after service.  

Under the circumstances, the Board finds that the Veteran's belief that his basal cell carcinoma was due to sun exposure in service is of limited probative value.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); see also, Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service).  Accordingly, the Board finds that the Veteran's opinion is of no probative value and declines to assign it any evidentiary weight.  

As there is no competent medical evidence of record suggesting a connection between any claimed in-service exposure to herbicides and the Veteran's diabetes mellitus or basal cell carcinoma, and no evidence of any manifestations or symptoms attributable to either disability during service or until many years after his discharge from service, the Board finds no basis to grant service connection.  Accordingly, the appeal is denied.  

The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issues on appeal.  Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claims.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

Service connection for diabetes mellitus, with complications of diabetic retinopathy, erectile dysfunction and peripheral neuropathy is denied.  

Service connection for basal cell carcinoma is denied.  




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs