Citation Nr: 1309206 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-19 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active duty from June 1965 to March 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Reno, Nevada Department of Veterans Affairs (VA) Regional Office (RO). In December 2010, the Veteran appeared and provided testimony at a Videoconference Board Hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is associated with the record. The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. It is not shown that the Veteran set foot on land in the Republic of Vietnam or was exposed to an herbicide agent (to include Agent Orange) during service. 2. Diabetes mellitus was first diagnosed many years after service, and there is no persuasive medical evidence or opinion of a medical relationship, or nexus, between diabetes mellitus and active service. 3. Peripheral neuropathy of the lower extremities is not etiologically related to the Veteran's active service and is not etiologically related to a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in January 2007. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of any type II diabetes disability and related peripheral neuropathy. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, as there is no indication that type II diabetes or peripheral neuropathy were manifested in service, were manifested within a year of service or were otherwise related to service, to include as secondary to herbicide exposure (to include Agent Orange). Thus, remand for a VA examination is not necessary. Overall, there is no evidence of any VA error in assisting the Veteran that reasonably affects the fairness of this adjudication. II. Legal Criteria and Analysis The Veteran contends that he is entitled to service connection for his type II diabetes mellitus, as such was caused by herbicide exposure while serving in the Republic of Vietnam aboard the U.S.S. Walke. Additionally, the Veteran asserts that he is entitled to service connection for peripheral neuropathy of the lower extremities, as such was caused by his type II diabetes mellitus for which he claims to be entitled to service connection. Applicable law provides that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection can be granted for certain disease, including diabetes mellitus, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Veterans who 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 to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. "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. The Federal Circuit in Haas v. Peake, 525 F.3d 1168, 1191 (Fed. Cir. 2008) upheld VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring actual service on land in Vietnam. VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to herbicides (to include Agent Orange) based on Military Records. This list includes vessels that operated primarily or exclusively on the inland "brown water" waterways of the Republic of Vietnam as well as large "blue water" vessels that operated temporarily on the inland waterways or docked to the shore. If evidence places a Veteran on one of these vessels at the time of inland waterway operations, the Veteran is eligible for the presumption of herbicide exposure. This list is routinely updated, with the most recent update occurring in November 2012. A review of the list reveals that the U.S.S. Walke operated on the Mekong River Delta at Vung Ganh Rei in the Republic of Vietnam on September 2, 1969. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Diabetes Mellitus Considering the pertinent evidence of record, in light of the above-noted legal authority, the Board finds that service connection for diabetes mellitus is not warranted. Service treatment records are silent for any complaints of or treatment for diabetes mellitus. Records of VA and private treatment reflect diagnoses of and treatment for diabetes mellitus beginning in October 1998; however, the Veteran testified at his December 2010 Board hearing that he was initially diagnosed with diabetes mellitus sometime around 1992. The Veteran has consistently reported that he has diabetes mellitus due to in-service herbicide exposure while aboard the U.S.S. Walke in waters off the shores of the Republic of Vietnam. The Veteran's service personnel records confirm the Veteran's presence aboard the U.S.S. Walke, and his DD Form 214 reflects that he served in the Republic of Vietnam. As noted above, the Veteran claims that his current diabetes mellitus is the result of exposure to herbicides, such as Agent Orange. However, there is no evidence indicating that the Veteran set foot on land in the Republic of Vietnam during his active service. In this regard, at his December 2010 Board hearing, the Veteran specifically denied going ashore while stationed off the coast of the Republic of Vietnam aboard the U.S.S Walke. The Veteran has asserted that while he was aboard the U.S.S. Walke, the ship was responsible for sweeping the waters along the shore of the Republic of Vietnam and that based on the ship's close proximity to land, he believes he was exposed to herbicides. However, the Veteran has not asserted, nor is there evidence to suggest that the U.S.S. Walke engaged in duties that involved operation on inland waterways during the time period that the Veteran was stationed aboard the ship. In this regard, the evidence indicates that the U.S.S. Walke performed duties on inland waterways in the Republic of Vietnam in September of 1969. A review of the Veteran's DD Form 214 shows that he was separated from active service in March 1969, six months prior to any inland waterway duties performed by the U.S.S. Walke. Thus, the Veteran is not presumed to have been exposed to herbicides, including Agent Orange, and is not entitled to presumptive service connection for diabetes mellitus on the basis of herbicide exposure in the Republic of Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. The Veteran's belief that his proximity to land while stationed off the coast of the Republic of Vietnam is not sufficient evidence to presume exposure to herbicides. Notwithstanding the above, to give the appellant every consideration in connection with the claim, the Board has considered other theories of entitlement in adjudicating the claim. See, e.g., Brock v. Brown, 10 Vet. App. 155, 162-164 (1997). In this case, however, the record does not otherwise provide a basis for service connection for diabetes mellitus. In this regard, the Veteran does not contend, nor does the record suggest, that he was diagnosed with diabetes mellitus during active service. Rather VA and private treatment records show that he was first diagnosed with diabetes mellitus sometime prior to 1998, and the Veteran has claimed that he was first diagnosed in 1992. Because the diabetes mellitus was not medically shown to have manifested to a compensable degree within the first postservice year, there is no rebuttable presumption of service incurrence. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d. 1330, 1333 (Fed. Cir. 2000). Further, there is no persuasive evidence of a nexus between diabetes mellitus and any incident or event in service. None of the VA or private treatment records reflecting a diagnosis of diabetes mellitus includes any comment or opinion suggesting a medical nexus between diabetes mellitus and the Veteran's active service. Moreover, neither the Veteran, nor his representative has presented or identified any such medical evidence or opinions between diabetes mellitus and any incident or event in service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for type II diabetes mellitus is not warranted. Peripheral Neuropathy Considering the pertinent evidence of record, the Board finds that service connection for peripheral neuropathy of the lower extremities is not warranted. The Veteran's service treatment records are silent for any complaints of or treatment for disabilities of the lower extremities during active service. On his March 1969 separation examination the Veteran's lower extremities were found to be clinically normal. The first postservice medical evidence of peripheral neuropathy is from a February 1996 private treatment record from West Coast Orthopedic which notes the Veteran's complaints of areas of numbness in his lower extremities bilaterally and pain in his right knee. Later private treatment records show that the Veteran receives treatment for peripheral neuropathy that is related to his type II diabetes mellitus. The Veteran's primary contention is that as his diabetes mellitus was allegedly caused by exposure to herbicides while serving in the Republic of Vietnam, he is entitled to service connection for peripheral neuropathy on a secondary basis in accordance with 38 C.F.R. § 3.310. However, as the Board has determined that the Veteran was not exposed to herbicides in the Republic of Vietnam and that he is not entitled to service connection for diabetes mellitus, entitlement to service connection for peripheral neuropathy on a secondary basis is not warranted. Additionally, the Board finds that the Veteran is not entitled to service connection for peripheral neuropathy on a direct basis. As noted above, the Veteran's service treatment records do not contain any record of complaints or treatment for symptoms related to peripheral neuropathy and the Veteran was not diagnosed with peripheral neuropathy until February 1996, nearly 26 years following separation from active service. Furthermore, the medical evidence currently of record contains no opinion, or suggestion, that the Veteran's peripheral neuropathy is related to an incident or event in his active service. In sum, there is no evidence of record indicating that the Veteran has peripheral neuropathy of the lower extremities that is related to his active service, or to any service-connected disability. The medical evidence of record indicates that his peripheral neuropathy is secondary to his type II diabetes mellitus, which as discussed above, is not a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for peripheral neuropathy of the lower extremities is not warranted. ORDER Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy of the lower extremities is denied. ____________________________________________ T.D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs