Citation Nr: 1304675 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 12-11 764 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus, type II due to in-service exposure to agent orange or herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from January 1957 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 RO decision, which denied a claim for service connection for diabetes mellitus, type II due to exposure to herbicides. 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 Veteran had no verified service in the Republic of Vietnam during the Vietnam War era, nor does the evidence show his exposure to Agent Orange or other herbicide during his period of service. 2. Diabetes mellitus, type II was not shown in service or until many years after service, and has not been shown to be etiologically related to a disease, injury, or event in service, including alleged exposure to herbicides during such service. CONCLUSION OF LAW Diabetes mellitus, type II was not incurred in or aggravated by service, and may not be presumed to have been so incurred. See 38 U.S.C.A. § 1110, 1112, 1116, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. VCAA letters dated in July 2005, February 2006, and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the Veteran was informed in these letters of how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, pertinent service treatment records and relevant VA and private medical records are in the file. The Board notes that the Veteran indicated in a September 1996 statement that he received treatment at the Oakland Park VA Outpatient Clinic and the Miami VA from 1977 to 1995. However, as the Veteran gave no indication that he sought treatment at these facilities for diabetes mellitus, type II, and he specifically asserted in his May 2005 claim that his diabetes mellitus, type II did not begin until 1995, the Board finds that all available records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims of service connection, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. With respect to the Veteran's claim for service connection for diabetes mellitus, type II, the Board notes that there is no competent medical evidence linking this disability to military service, and no lay evidence of a continuity of symptomatology suggesting an association to service. The Veteran has indicated that exposure to agent orange or herbicides resulted in his diabetes mellitus, type II. However, as will be discussed in greater below, the Board finds no credible evidence of such exposure while on active duty. The Board is aware that Charles v. Principi, 16 Vet. App. 370 (2002), requires VA to obtain a medical nexus opinion where the claimant has been diagnosed as having a disability and has proffered competent lay evidence of continuous symptoms of the disorder since his discharge from service. Here, however, the Veteran's service treatment records contain no evidence of treatment for or complaints of diabetes mellitus, type II, nor has the Veteran proffered lay statements indicating that he has had continuous symptoms of this disability since his active duty. Thus, as there is no medical evidence suggesting an association between his current disability and service, and no lay evidence as to the presence of symptomatology in service or the continuity of symptoms since service, the Board finds that the third prong of McLendon is not met, and that VA examination or opinion is not warranted. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include diabetes mellitus, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that 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." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The diseases alluded to above include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, all chronic B-cell leukemias, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). The Veteran contends that he has diabetes mellitus, type II as a result of in-service exposure to herbicides. Specifically, it was asserted in the December 2012 Appellant's Brief that the Veteran was a member of the Carrier Task Force-77 Band (CTF-77 Band), in which he performed at various functions in the Republic of Vietnam. A review of the service treatment records reflects no complaints, treatment, or diagnoses of diabetes mellitus, type II. A review of the post-service medical evidence of record reflects that the Veteran has a current diagnosis of diabetes mellitus, type II. As an initial matter, the Board notes that there is no medical evidence of record reflecting that the Veteran was diagnosed with diabetes mellitus, type II during service or within one year of discharge from active duty, nor has the Veteran asserted such. In fact, the Veteran has asserted that he did not develop diabetes mellitus, type II until 1995. Therefore, service connection cannot be granted for diabetes mellitus, type II on a presumptive basis under 38 U.S.C.A. § 1112. With respect to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no lay or medical evidence of record reflecting that the Veteran had diabetes mellitus, type II in service, and no competent medical opinion has related his diabetes mellitus, type II to service. The Veteran has never asserted that he had diabetes mellitus, type II in service, nor has he described a continuity of relevant symptomatology since service. As discussed, the Veteran specifically indicated in his May 2005 claim that his diabetes mellitus, type II began in 1995. Moreover, the medical evidence of record does not reflect a diagnosis of diabetes mellitus until many years after service. Therefore, as the claims file contains no medical or lay evidence suggesting a direct relationship between the Veteran's diabetes mellitus, type II and his active duty service, the Veteran's claim must fail on a direct basis as well. See Shedden, supra. With regard to granting service connection for diabetes mellitus, type II based on in-service exposure to herbicides, the Board notes that the Veteran has submitted a copy of an email from W.Q.R., who claimed to be leader of the Unit Band 197, in which he asserted that the Veteran set foot in Vietnam as a member of the band, as various functions were held in the Republic of Vietnam. Specifically, this email asserted that the Veteran was a member of the CTF-77 Band in the fall of 1970, to specifically include in October 1970, when they made several trips to Da Nang and Camp Tien Shaw. While the Board has considered this email, a review of the Veteran's personnel records shows that he was assigned as a student to the School of Music from June 1970 through at least November 21, 1970, at which point he was assigned to COMNAVAIRPAC (Commander of the Naval Air Forces of the Pacific), although he was still listed in the School of Music. The Veteran took leave from November 22, 1970 to December 18, 1970. He was not officially assigned to the CTF-77 Band until June 1, 1971. During these periods of time, personnel records indicate that he was in Unit Band numbers 25 and 29. There is no indication in the records that the Veteran was assigned to CTF-77 prior to November 21, 1970, or that he was ever in Unit Band 197. As such, the Veteran was not a member of the CTF-77 Band in the fall of 1970 when W.Q.R. claimed that the band set foot in Vietnam. Additionally, while the Veteran submitted a photocopy of pictures and a statement indicating that the CTF-77 Band performed during the underway replenishments, at various formal functions, and "in country" Vietnam on an invitation basis, there is no indication that the Veteran served with the CTF-77 Band during an 'in-country" performance or was a member of the band during a time at which one of these invitations was extended. Further, the Board notes that the claims file contains a personnel record indicating that the Veteran served on the USS Enterprise in the Vietnam Theater of Operations/Hostile Fire Zone for several 2-week periods from July 1971 to November 1971. However, the Veteran's DD-214 and personnel records do not reflect that he set foot in the Republic of Vietnam. Additionally, information from the Archives of the Naval Historical Center specifically do not list any port visits in the Republic of Vietnam for the USS Enterprise during this timeframe. In a July 2005 response to a request to furnish dates of service in Vietnam, the National Personnel Records Center (NPRC) indicated that it was unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. It was noted that the Veteran was attached to a Navy Unit (Commander Attack Carrier Striking Force 7th Fleet/Commander Carrier Division Five) that could have been assigned to a ship (USS Enterprise CVAN 65) or to shore. For Department of Defense Purposes, the unit was credited with Vietnam Service from July 15, 1971, to July 31, 1971; from August 16, 1971, to September 4, 1971; from October 11, 1971, to October 22, 1971; and from October 24, 1971, to November 3, 1971. However, the Veteran's service record provides no conclusive proof of his physically being in country. Further, the claims file contains a February 2009 VA Memorandum, in which it was determined that there was not enough evidence of record to concede service in the Republic of Vietnam. This Memorandum outlined the efforts that were made in order to obtain the information necessary to verify service in the Republic of Vietnam. Having carefully reviewed the record, the Board finds that the most probative evidence of record does not reflect that the Veteran was exposed to herbicides in service. The Board has considered the Veteran's reports that he stepped foot in the Republic of Vietnam to perform at various functions while serving as a member of the CTF-77-Band, and the Board finds that the Veteran is competent to report such events. However, the Board does not find the Veteran's statements regarding his presence in the Republic of Vietnam to be credible in light of the other evidence of record. Specifically, as discussed above, the email from W.Q.R. referred to dates prior to when the Veteran served with the CTF-77 Band, and during a time when the Veteran was either a music student or on leave with COMNAVAIRPAC. As such, the Veteran's reports are not corroborated by this email due to the discrepancy of the dates. To the contrary, given that the Veteran has personally offered this evidence into the record for the purpose of corroborating his allegation of "in country" service, and given that the evidence is clearly refuted by the actual record, the Board is left with no recourse but to find that the Veteran is not credible with respect to this critical allegation. Moreover, the Veteran's DD-214 and personnel records do not reflect that he set foot in the Republic of Vietnam. Information from the Archives of the Naval Historical Center specifically do not list any port visits in the Republic of Vietnam for the USS Enterprise during the timeframe in which the Veteran served on this ship. The July 2005 NPRC response reflected that the Veteran's service record provided no conclusive proof of his physically being in country. A February 2009 VA Memorandum determined that there was not enough evidence of record to concede service in the Republic of Vietnam. Therefore, as the Veteran's statements regarding his reported presence in the Republic of Vietnam have been deemed not credible, and as the preponderance of the remaining evidence of record does not reflect that the Veteran served in or set foot on the Republic of Vietnam, the Board finds that exposure to herbicides is not conceded. As such, service connection cannot be granted on a presumptive basis for a diabetes mellitus, type II as a result of herbicide or agent orange exposure. Moreover, there is no allegations or evidence suggesting or supporting the fact that the Veteran was otherwise exposed to agent orange type herbicides, or that the Veteran's diabetes mellitus, type II is otherwise associated with his period of service. . In conclusion, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type II, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for diabetes mellitus, type II due to in-service exposure to agent orange or herbicides is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs