Citation Nr: 1307147 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-03 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Douglas J. Rosinski, Attorney ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had honorable active duty service from June 27, 1966 to April 20, 1971 and from October 12, 1971 to October 19, 1979. He also had service that was dishonorable from October 20, 1979 to February 8, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2011 the Board remanded the issues of entitlement to TDIU and entitlement to service connection for diabetes mellitus. By rating action in May 2012, the RO granted TDIU, effective December 12, 2007. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claim and such evidence has been considered accordingly. FINDINGS OF FACT 1. The Veteran did not step foot in the Republic of Vietnam during the Vietnam Era. 2. The Veteran's current diabetes mellitus is not the result of a disease or injury in service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a pre-adjudication letter dated in July 2009 the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for diabetes mellitus. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran was afforded a VA examination in January 2009 which confirmed a diagnosis of diabetes mellitus made approximately, "6 or 7 years ago." However, no opinion was obtained as to whether the diabetes was related to service. This case turns on whether the Veteran had qualifying service in Vietnam. There is no evidence that diabetes may otherwise be related to service. As the evidence does not indicate that the claimed disease may be related to service further examination is not necessary. See McLendon, 20 Vet. App. at 83. The Board's remand was, in pertinent part, for efforts to obtain clarification from the Director of VA's Compensation and Pension Service of the information used in a letter that said the Veteran had service in Vietnam; to obtain information from the Veteran with regard to a reported helicopter crash in Vietnam; and to refer the information received from the Veteran to the appropriate entity to obtain confirmation of the incident. This development was all completed, and the resulting evidence is discussed below. Criteria for Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to service connection under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a), a Veteran must satisfy a three element test: (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. Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)),; see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. VA considers diabetes mellitus to be a chronic disease. 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in claim involving a chronic disease is through a demonstration of continuity of symptomatology. Cf. Walker. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is shown in service and at any time thereafter; or to a compensable degree within one year of service; service connection will be presumed. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 A veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to an herbicide agent during that service. When such a veteran develops Type II diabetes mellitus to a degree of 10 percent or more at any time after service, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a) (6), 3.309(e) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and analysis The Veteran contends that he had service in Vietnam, which qualifies him for the presumption that he was exposed to herbicides and that type 2 diabetes was the result of that exposure. The Veteran points to a November 2008 letter from VA's Director of Compensation and Pension (C&P) as showing that VA has recognized his in-country service in Vietnam. This letter reads, in pertinent part: "[a]ccording to the records of [VA], you were stationed in the Republic of Vietnam during your military service." The letter further details the benefits available to veterans who served on the ground or the island waterways of Vietnam. This in-country service would allow him the presumption of having been exposed to herbicides and his pending claim for service connection for diabetes mellitus would then be granted on this presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Following the Board's request for clarification, the Director of C&P provided a November 2011 letter. He explained that the November 2008 letter was part of an outreach effort intended to raise awareness among those who might potentially be eligible for benefits. It was not intended as verification of in-country service in Vietnam service. The letter was sent to Veteran's identified by the Veterans Health Administration as having served in Vietnam. After the letter was sent, it was discovered that VHA may have included individuals who had self reported service in Vietnam. Although the Veteran, through his representative has contended that the November 2008 letter was a "legally binding concession" by VA. There is; however, no authority for the proposition that the statements in the letter from the Director of C&P were legally binding determinations. The letter does state, incorrectly, that according to VA records the Veteran was stationed in Vietnam, but it does not include any ultimate finding to that effect The Veteran's service treatment and personnel records do not show service in Vietnam and they do not document a purported in-country helicopter crash. The Veteran's personnel records reveal that he served overseas in Okinawa and in Korea during active service in the Air Force. Additionally, he was not awarded any service medals or awards indicative of combat service or service in Vietnam. At a VA examination in May 2003 and in an affidavit dated in June 2009, the Veteran reported that he was involved in a helicopter "crash" in Vietnam. Through it remand the Board asked the Veteran to provide additional information regard this incident, so that it could be verified and potentially establish qualifying service in Vietnam. In a sworn statement dated in January 2012, the Veteran reported that the helicopter incident had actually been a "hard landing." The information he provided was referred to the U.S. Army & Joint Services Records Research Center (JSRRC). The JSRRC responded that it was unable to document that the unit reported by the Veteran was a valid Air Force Unit, but that his unit could be determined from his Air Force Form 7. In a second response, JSRRC reported that historical records from the Veteran's unit of assignment did not document that members of the Veteran's unit were sent on temporary duty (TDY) to South Vietnam. A January 2009 VA examination report shows that the Veteran related that he had been diagnosed as having diabetes mellitus 6 or 7 years ago. The diagnosis was type II, diabetes mellitus. The element of a current disability is thus established. The evidence is against a finding that the Veteran served in Vietnam. The File reveals that he was assigned to the 2020th Communications Squadron, Shaw Air Force Base, South Carolina, from June 1966 through February 1967; the 1956th Communications Group, Fuchu Air Station, Japan from March 1967 through February 1968; and the 2074th Communications Squadron, Osan Air Base, Korea from March 1968 through November 1968. The file contains extensive performance ratings which detail the Veteran's duties and accomplishments and are entirely silent as to any TDY assignments to Vietnam; and JSRRC has reported that there is no evidence that members of the Veteran's unit were sent on TDY to Vietnam. While the Veteran may be competent to report the locations of his service, his reports have not been entirely consistent. As noted he initially reported a helicopter "crash" in Vietnam, but has more recently reported only a "hard landing." He indicated that he injured his back in this incident. In his initial claim for service connection for a back disability in April 1971, he reported treatment for a back disability in Japan, but did not mention any injuries or service in Vietnam. Similarly, service treatment records document an intermittent history of back pain, but do not mention any injury in Vietnam. An examiner noted the Veteran's report of "some injury" to the back on a VA examination in 1985, and an injury in a helicopter crash in Vietnam was first mentioned in a statement dated in July 1997. On a VA examination in September 1997, the Veteran reported that the helicopter was "shot down." On examination in June 2001, the helicopter incident was described as an "accident." Given the wide variations in the Veteran's reports, his statements regarding service in Vietnam are not deemed credible. The letter from the Director of C&P provides no evidence that the Veteran actually had service in Vietnam and may have been generated as a result of his reports of Vietnam service. There is no other evidence that the Veteran had qualifying service in Vietnam. The service department records weigh against such a finding. The evidence is not in equipoise on this point; accordingly, the Board finds that the Veteran did not have service in Vietnam that would raise a presumption of herbicide exposure or service connection for diabetes based on such exposure. Given the above, the Veteran is not entitled to presumptions based on herbicide exposure. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The fact that the Veteran is not entitled to the presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records do not indicate treatment for or complaints concerning diabetes. The record contains an October 2002 VAMC treatment report which noted a family history of diabetes mellitus. Lab results revealed elevated glucose levels and diabetes was diagnosed, 23 years after service. Here, there is no evidence that diabetes mellitus was manifested in service or to a compensable degree in the first year after service. The Veteran has acknowledged that diabetes was not identified until many years after service. There is no evidence otherwise linking diabetes directly to service. The Veteran has not reported a continuity of symptomatology and there is no other evidence of continuity. There is also no competent medical opinion linking the current diabetes to service. The weight of the evidence is thus against the claim. In reaching the conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the appeal is denied. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs