Citation Nr: 1303585 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-37 202A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II (DM II), including as secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2009 rating decision, by the St. Petersburg, Florida, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for diabetes mellitus, type II, including as secondary to exposure to Agent Orange. The veteran perfected a timely appeal to that decision. In March 2011, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2012. The Board finds that substantial compliance has been accomplished, and, thus, it may proceed to adjudicate the Veteran's appeal without prejudice to him. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam and there is no credible evidence showing he ever had duty or visitation in Vietnam. 2. There is no reliable evidence of actual exposure to herbicides during service. 3. Diabetes mellitus was not manifested during service or within one year of separation and is unrelated to service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred, to include as a result of exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012); Haas v. Peake, 525 F.3d 1168, 1191 (Fed. Cir. 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). A November 2005 letter that contained the required notice was sent to the Veteran prior to initial adjudication of his claim in May 2009. Additional letters were issued in September 2011 and March 2012. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c) (1)-(3). The Veteran's service treatment records (STRs), service personnel records (SPRs), and post-service VA treatment reports have been obtained. VA did not provide the Veteran with a medical examination but none is required in this case. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c) (4). Here, as is discussed further below, the evidence of record does not indicate that that the Veteran had duty or visitation in Vietnam or that diabetes mellitus, type II, was diagnosed during service. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). 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. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43(2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. II. Background & Analysis. The Veteran alleges entitlement to service connection for diabetes mellitus, type II based on exposure to Agent Orange while in Vietnam. If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases, including diabetes mellitus, type II. 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a) (6) (iii). "[S]ervice 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); Haas, 525 F.3d at 1191. Here, the post service VA outpatient treatment reports reflect a diagnosis of diabetes mellitus, type II. The Veteran's service personnel records (SPRs) demonstrate that he served on the USS Haleakala. The National Personnel Records Center (NPRC) and Joint Services Records and Research Center (JSRRC) indicate that the USS Haleakala was in the official waters of Vietnam while the Veteran served on the ship from November 13, 1970 to November 27, 1970, from December 6, 1970 to December 18, 1970 and on December 28, 1970. The Veteran has not asserted that he went ashore. In addition, in May 2011, the National Archives and Heritage Command noted that ship deck logs did not provide information placing individuals aboard the ship, nor indicated names of individuals who departed the ship and might have set foot ashore. Further, documents from the naval history and heritage Command noted no evidence of Vietnam in country service. Moreover, in a memorandum dated in November 2011, the JSRRC stated that, after review of numerous official military documents, ship histories, deck logs, and other sources of information related to Navy and Coast Guard ships, they were unable to find evidence that indicates that Navy and Coast Guard ships off of Vietnam transported, stored or used tactical herbicides. Thus, the Board finds that the evidence of record does not indicate that the Veteran had duty or visitation in Vietnam, or that he was exposed to Agent Orange while aboard the USS Haleakala. Accordingly, entitlement to service connection on a presumptive basis is not warranted. Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. Generally, service connection may be established for 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). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may 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). In addition, diabetes mellitus, type II, may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran does not assert any other exposure to Agent Orange. He also does not assert diabetes mellitus, type II, was diagnosed during service. The Veteran's STRs, including service entrance in September 1969, and separation examination in October 1971, are negative for any diagnoses of diabetes mellitus, type II, or any other relevant clinical findings. The Board finds that the evidence of record does not support a finding of direct service connection for diabetes mellitus, type II. As noted above, there is currently diagnosed diabetes mellitus, type II. See 38 C.F.R. § 3.303(a), (b); Shedden, 381 F.3d at 1167. However, diabetes mellitus was not diagnosed during service or within one year of service discharge. 38 C.F.R. §§ 3.303, 3.307, 3.309; Shedden, 381 F.3d at 1167. The first diagnosis of record was in 2003, almost 32 years after service discharge. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Moreover, the other lay and medical evidence of record does not suggest that the Veteran's diabetes mellitus, type II is otherwise related to service, as the Veteran has not alleged continuity of symptomatology and no other evidence links service and his diabetes mellitus. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Shedden, 381 F.3d at 1167. Accordingly, direct service connection is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, type II, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs