Citation Nr: 1305841 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-47 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure in service. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from October 1955 to September 1959 and from December 1959 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, and erectile dysfunction. A Travel Board hearing was held in October 2012 with the Veteran in San Antonio, Texas, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. After the hearing, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides in service, and diabetes mellitus is not otherwise etiologically related to service. 2. Peripheral neuropathy of the bilateral lower extremities is not etiologically related to a service-connected disability. 3. Erectile dysfunction is not etiologically related to a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the bilateral lower extremities is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. Erectile dysfunction is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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 (2012). Such notice must include notice 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claims, a letter dated in April 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Therefore, he received complete notice regarding his claims for service connection. The Veteran's service treatment records, service personnel records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. During his October 2012 hearing, the Veteran reported receiving treatment at a VA clinic. Those records have not been associated with the claims file. However, as discussed below, a diagnosis of diabetes mellitus has been established, and the applicable regulations presume that diabetes can be attributed to herbicide exposure. The additional claims on appeal are secondary to diabetes. The pertinent question in this case is whether the Veteran was exposed to herbicides during service. VA treatment records generated after the Veteran's periods of service would not contain information relevant to determining such exposure beyond the Veteran's own assertions, which are already part of the evidence in this case. Therefore, obtaining those records is not necessary to decide the claims on appeal. See 38 C.F.R. § 3.159(c)(2), (3) (discussing VA's duty to obtain "relevant" records); see also 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 veteran are to be avoided). In addition, no medical examination has been conducted and no medical opinion has been obtained with respect to the Veteran's claims. However, for reasons explained in greater detail below, the Board does not find the Veteran's account of having had visitation in the Republic of Vietnam or being exposed to herbicide agents in service to be credible evidence. Therefore, a remand to provide the Veteran with a medical examination and/or medical opinion is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection First, the Veteran is seeking service connection for diabetes mellitus due to herbicide exposure in service. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including diabetes, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence showing: (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Treatment records dated September 2004 show the Veteran was diagnosed with diabetes, and additional records show ongoing treatment for the condition. Regulations provide that if the Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, type II diabetes mellitus shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met, even though there is no record of such diseases during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202-53216 (August 31, 2010). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2012). For the purposes of presumptive herbicide exposure, service in Vietnam requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). It requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168, 1184-86 (Fed. Cir. 2008); 66 Fed. Reg. 23166 (May 8, 2001). What constitutes "inland waterways" is not defined in VA regulations; however, the VA Adjudication and Procedure Manual ("Manual") provides interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. M21-1MR, Part 4, Subpart. II, ch. 2, sec. C(10)(k) (December 16, 2011). The Manual also states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. The Veteran stated that he served aboard the U.S.S. Sanctuary, a hospital ship which operated about a mile off the coast of Vietnam. He further stated that he served as a boat engineer and transported people every day between the ship and the shore. On several occasions, he was also granted liberty to go ashore for a short time. See November 2009 Statement in Support of Claim; October 2012 Hearing Testimony. The Veteran's Form DD-214 lists his military occupational specialty as analogous to a marine mechanic. An April 2009 Request for Information confirmed that the Veteran served aboard the U.S.S. Sanctuary, which was in the official waters of the Republic of Vietnam for various periods in 1969 and 1970. However, there was no conclusive proof that the Veteran had any in-country service. An October 2009 response from the Defense Personnel Records Information Retrieval System (DPRIS) indicated that the command history of the U.S.S. Sanctuary had been reviewed. The history revealed that the ship operated primarily in Da Nang and Wunder Beach, an area off the northern coast. The ship also participated in Operation Bold Mariner and spent time in Subic Bay. According to the National Archives and Records Administration (NARA) and Naval History and Heritage Command (NHHC), command histories, deck logs and muster rolls are the only administrative records that are permanently retained. These records do not normally provide information placing individuals aboard the ship, nor do they indicate the names of individuals arriving or going ashore on a routine basis. Deck logs may indicate arrivals or departures, but do not normally list individuals by name unless that individual is a very important person or high-ranking officer. An January 2010 memorandum from the Joint Services Records Research Center (JSRRC) indicated that they were unable to confirm the Veteran's in-country service. Based on the Veteran's personnel records and the April 2009 Request for Information, the JSRRC reviewed the command history of the U.S.S. Sanctuary, but was unable to verify the Veteran's in-country service. The Board's own review of the Veteran's service personnel and treatment records reveals that they are completely devoid of any reference to visitation in the Republic of Vietnam while assigned to the U.S.S. Sanctuary. Additionally, although the Veteran is in receipt of the Vietnam Service Medal and Vietnam Campaign Medal, such awards can be given for service outside of Vietnam for support of actions in Vietnam. They are not definitive proof of in-country service. In sum, the only evidence of the Veteran's in-country service in Vietnam is his own testimony. It is well settled that the Board must make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997); (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Here, in light of the fact that the JSRRC was unable to confirm the Veteran's reported visitation in the Republic of Vietnam, and the Veteran's service records in no way indicate that his military duties have required visitation in Vietnam, the Board does not find the Veteran's account of in-country visitation to be credible. For these reasons, his unsupported lay account is given far less probative weight than the JSRRC summary and service records discussed above. Therefore, herbicide exposure has not been verified, and service connection for diabetes mellitus due to herbicide exposure is not warranted. The Board has also considered whether service connection for diabetes is warranted on a direct basis. However, service treatment records do not reflect any complaints, treatment, or diagnoses related to diabetes, and the Veteran has not alleged that diabetes had its onset during service or within one year of discharge. The Veteran has also claimed peripheral neuropathy and erectile dysfunction as disabilities secondary to diabetes mellitus. Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Here, the claims for peripheral neuropathy and erectile dysfunction must fail since diabetes mellitus is not a service-connected disability, as discussed above. Thus, a critical element for establishing secondary service connection is not satisfied. Since the primary disability (i.e., diabetes mellitus) upon which the secondary disability is based is not a service-connected disability, the claim for service connection lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran testified at his October 2012 hearing that these disabilities were being claimed solely as secondary to diabetes. No other etiology is suggested or indicated. Thus, the claims are denied. ORDER Service connection for diabetes mellitus is denied. Service connection for peripheral neuropathy of the bilateral lower extremities is denied. Service connection for erectile dysfunction is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs