Citation Nr: 1310044	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  09-34 185	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 24, 2011.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse




ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from November 1968 and August 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California.  Jurisdiction over the appeal currently resides with the RO in Los Angeles, California.  

In April 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record.  In May 2012, the Board remanded the above claims for additional development.

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 claim for an earlier effective date for the grant of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The most competent and credible evidence of record shows that the Veteran did not step foot in the Republic of Vietnam during the Vietnam era or had service on a ship that served in the inland waterways of the Republic of Vietnam during the Vietnam era.

2.  The most competent and credible evidence of record shows that the Veteran did not have actual exposure to Agent Orange or other herbicide agents during his military service.

3.  The most competent and credible evidence of record shows that the Veteran's type 2 diabetes mellitus is not related to service and there is no evidence of compensable type 2 diabetes mellitus within one year of service separation.


CONCLUSION OF LAW

Type 2 diabetes mellitus was not incurred in or aggravated by active service and it may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

Next, the Board finds that a letter dated in January 2009, prior to the June 2009 rating decision, along with a letter dated in May 2012 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  Moreover, even if the above letters did not provided adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statement of the case, and the Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board personal hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim of service connection.  The Veteran was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service.  They also asked questions to draw out the current state of the Veteran's disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status or is not available.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Veteran has not been provided notice of the amendment to 38 C.F.R. § 3.307 which added (a)(6)(iv) effective February 24, 2011.  However, the Board finds that the Veteran will not be prejudiced by this lack of notice because the new regulation is more beneficial.  Therefore, the Board finds that a remand to provide this notice is not required.

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and post-service records from the Long Beach VA Medical Center, Kaiser Permanente, Angela Tan, M.D., and Dr. Avila in substantial compliance with the Board's remand directions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

While the Board remanded the appeal in May 2012 to also obtain the Veteran's records on file with the Social Security Administration (SSA), these records are not found in the claims file.  Nonetheless, the Board finds that a remand to request these records is not required because in June 2012 and again in October 2012 the SSA notified VA that it did not have any records of the claimant's and in August 2012 the AMC notified the claimant that these records were not available.  Id.  

The Board also remanded the appeal in May 2012 to attempt to verify the Veteran's claims as to herbicide exposure in accordance with VA's Adjudication Procedural Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section C, para. 1. 

In this regard, the Board finds that the RO substantially complied with the Board's remand directions by taking all steps required by the M21-1MR to verify the Veteran's alleged herbicide exposure.  Id.  Specifically, the pre-remand record shows that the RO obtained and associated with the claims file the Veteran's service treatment records and personnel records.  Similarly, the post-remand record shows that the RO contacted the National Personnel Records Center (NPRC) in May 2012 and the U.S. Army and Joint Services Records Research Center (JSRRC) in August 2012 to obtain herbicide exposure information.  

In the August 2012 reply from the NPRC, it was reported that they were unable to determine if he had in-county service in the Republic of Vietnam but the Veteran served on the U.S.S. Kearsarge and his ship was in the official waters off of the Republic of Vietnam at various times from May 1969 to August 1969.  

Likewise, in the October 2012 reply from the JSRRC it was reported that they found no evidence that indicates Navy or Cost Guard ships transported tactical herbicides from the United States to the Republic of Vietnam; they found no evidence to indicate that Navy or Cost Guard ships operating off the cost of the Republic of Vietnam used, stored, tested, or transported tactical herbicides; and they could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over the Republic of Vietnam or equipment that was used in the Republic of Vietnam.  

Given the above, the Board finds that VA has no further duty to assist this Veteran in developing this part of his claim.

The record shows that the Veteran was not afforded a VA examination.  In this regard, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.

Given the above standard, the Board finds that a remand for a VA examination is not required because service treatment records are negative for the claimed disorder, the post-service record is negative for the claimed disorder for 29 years after his separation from active duty, the Board finds the lay statements from the Veteran and others regarding a nexus between a current disability and service conclusory generalized statements for reasons that will be explained below, and the Board does not find the lay statements from the Veteran and others regarding continuity of symptomatology competent and credible evidence for reasons that will be explained below.  See 38 U.S.C.A. § 5103A(d); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that VA was not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service when the Board does not find his statements credible); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

In writings and personal hearing testimony the Veteran and his representative contend that the claimant's diabetes mellitus was caused by his exposure to Agent Orange while serving on the U.S.S. Kearsarge in the waters off of the Republic of Vietnam.  Specifically, the Veteran reported that he was exposed to Agent Orange after it was sprayed on the jungles because it would than blow onto his ship.  He also claimed that he was exposed to Agent Orange because as a Boatswain's Mate he came into regular contact with aircraft, men, and materials that came aboard the U.S.S. Kearsarge after being in the Republic of Vietnam and being exposed to Agent Orange.  The Veteran also claimed that the U.S.S. Kearsarge transported barrels of Agent Orange and as a Boatswain's Mate he came into contact with these barrels contents when he had to clean up spills.  The Veteran does not claim that he was exposed to Agent Orange while actually stepping foot in the Republic of Vietnam because he did not ever claim that he did so.  The Veteran also requested that he be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 such as diabetes mellitus.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including diabetes mellitus, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In this regard, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period.  38 C.F.R. § 3.307.  For these Vietnam war Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  

The list of diseases associated with exposure to certain herbicide agents includes Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes).  38 C.F.R. § 3.309(e).  

In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea in or near the DMZ between April 1, 1968, and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to herbicides is not presumed in such instances.  However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

As to service connection under the presumptions found at 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e), the Board notes that "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).

In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption.  A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  Haas, 525 F.3d at 1193-1194; See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam).  In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196.

With regard to inland waterways, again, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii).  See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance.  Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k.  Service aboard a ship that 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.  Id.

Initially, the Board notes that in both writings to VA and at his personal hearings the Veteran and/or his representative did not ever specifically claim that the appellant ever stepped foot in the Republic of Vietnam during his military service.  See, for example, statement in support of claim received in July 2009; personal hearing transcript dated in April 2012.  Moreover, while the Veteran's service personnel records and JSRRC confirmed the fact that the Veteran served on the U.S.S. Kearsarge from May 1969 to August 1969 while it sailed in the waters off of the Republic of Vietnam, neither the NPRC or JSRRC were unable to uncover any proof that the claimant ever stepped foot in the Republic of Vietnam, that his ship ever docked in the Republic of Vietnam, or that his ship ever sailed in the inland waterways of the Republic of Vietnam during this time.  

The Board also notes that a January 2010 document issued by VA entitled "Compensation and Pension Bulletin" listed the names of vessels that served in the "brown waters" of the Republic of Vietnam and in May 2011 and November 2012 VA issued updated lists.  Tellingly, these documents did not list the Veteran's ship as having served in the "brown waters" of the Republic of Vietnam.  Additionally, the Board finds that the official records of the ship's movements as provided by JSRRC more probative than any contrary claims by the Veteran or his representative that may be found in the record.  See Evans, supra; Owens, supra.  

In summary, despite the Veteran, his buddy, his wife, his brother, and his representative's competent and credible statements regarding the appellant having service on the waters off of the Republic of Vietnam, the Board nonetheless finds all of this service was on a deep-water naval vessel in the waters offshore Vietnam.  See Haas, supra; VAOPGCPREC 27-97.  Service aboard a ship, such as the U.S.S. Kearsarge, does not constitute inland waterway service or qualify as docking to the shore.  See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k.  Accordingly, since the Veteran has never claimed and the record does not show that her actually stepped foot in the Republic of Vietnam, and his exposure occurred while serving on the U.S.S. Kearsarge during his deep-water naval service, the Board finds that he is not entitlement to the presumptions found at 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e).  Therefore, the claim of service connection for type 2 diabetes mellitus must be denied on a presumptive basis.  

Given the above, the Board will next consider whether the Veteran is entitled to service connection for type 2 diabetes mellitus on a direct basis.  See Combee.

As to service incurrence under 38 C.F.R. § 3.303(a), as noted above, JSRRC confirmed the fact that the Veteran served on the U.S.S. Kearsarge during the time it sailed in the waters off of the Republic of Vietnam from May 1969 to August 1969.  Moreover, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as seeing black smoke rising from shore, smelling a chemical smells that appeared to come from shore, and having to clean up chemicals that spilled from barrels as well as having problems with visible symptoms of diabetes mellitus while on active duty even though not documented in the service treatment records.  See Davidson.  

As to actual Agent Orange or other herbicide exposure, the Board finds that neither the Veteran, his wife, his brother, his buddy, or his representative is competent to say that the smoke and/or chemical smell was caused by Agent Orange or that the chemical spills he cleaned-up were Agent Orange because such a finding requires special training and equipment that the Veteran did not have while on active duty.  Id.  Moreover, none of the other lay persons are competent to say what the Veteran saw at that time because they were not present at that time.  Id.  Additionally, the Board finds more competent and credible the negative opinions provided by JSRRC in October 2012 regarding shipboard exposure to Agent Orange or other herbicides, than any lay claims by the Veteran and others found in the record regarding having such exposure.  Furthermore, as to the post-service medical records that reported that the Veteran claimed he was exposed to Agent Orange while on active duty, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion.  See Howell v. Nicholson, 19 Vet. App. 535, 539 (2006).

As to having symptoms of or being diagnosed with diabetes mellitus while on active duty, the Board notes that the Veteran's service treatment records, including the August 1970 separation examination, are negative for complaints or treatment for symptoms of and/or a diagnosis of diabetes mellitus.  In fact, the separation examination specifically reported that his sugar was negative.  Further, the Board finds more compelling the service treatment records that are negative for complaints, diagnoses, or treatment for diabetes mellitus, than the lay claims by the Veteran and others found in the record that he may have had problems with symptoms of diabetes mellitus while on active duty.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  

Accordingly, the Board finds that the most competent and credible evidence of record shows that the Veteran neither had actual exposure to Agent Orange or another herbicide nor symptoms of and/or a diagnosis of diabetes mellitus while on active duty.  Therefore, the Board finds that entitlement to service connection for type 2 diabetes mellitus based on in-service incurrence must be denied despite the fact that the Veteran served on U.S.S. Kearsarge during the time it sailed in the waters off of the Republic of Vietnam from May 1969 to August 1969.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309(a), the record does not show the Veteran being diagnosed with type 2 diabetes mellitus in the first post-service year.  In fact, the record does not show his being diagnosed with type 2 diabetes mellitus until 1999 - almost three decades after his separation from active duty.  Accordingly, entitlement to service connection for type 2 diabetes mellitus on a presumptive basis must also be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).

As to service connection based on post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1970 and the first complaints and/or treatment for type 2 diabetes mellitus in 1999 to be compelling evidence against finding continuity.  Put another way, the almost three decade gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs heavily against his claim.  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 his low back condition).  

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable symptoms of type 2 diabetes mellitus since service even if not documented in his medical records.  See Davidson, supra.  The Board also acknowledges that the Veteran's wife, brother, buddy, and representative are competent to give evidence about what they can see.  Id.  

However, upon review of the claims file, the Board finds that these assertions that the appellant has had his type 2 diabetes mellitus since service are not credible.  In this regard, these lay claims are contrary to what is found in the service and post-service medical records including the August 1970 separation examination which reported his sugar was negative as well as the treatment records from Kaiser Permanente dated in 1995 and 1997 which specifically reported that he did not have diabetes mellitus.

In these circumstances, the Board gives more credence and weight to the medical evidence of record, which is negative for complaints, diagnoses, or treatment for the claimed disorder for almost three decades following his separation from active duty, than the Veteran's, his wife's, his brother's, his buddy's, and his representative's claims which are incredible.  Therefore, entitlement to service connection for type 2 diabetes mellitus based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(b), 3.309.

As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible opinion finding a causal association or link between the Veteran's current type 2 diabetes mellitus and an established injury, disease, or event of service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

As to the claims from the Veteran, his wife, his brother, his buddy, and his representative regarding type 2 diabetes mellitus being caused by his service to include exposure to herbicides, the Board finds that the diagnosis of type 2 diabetes mellitus may not be made by a lay person because special medical training is required to diagnose it.  See Davidson.  Therefore, the Board finds that the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  Id.  As such, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that his type 2 diabetes mellitus was caused by service are not competent evidence.  Jandreau.  

Based on the discussion above, the Board finds that the record is negative for a competent and credible medical opinion finding a causal association or link between the Veteran's current type 2 diabetes mellitus and an established injury, disease, or event of service origin including his claimed herbicide exposure.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); Rabideau, supra.  Therefore, the Board also finds that service connection for type 2 diabetes mellitus is not warranted based on the initial documentation of the disability after service.

In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the most competent and credible evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for type 2 diabetes mellitus is denied.

REMAND

As to the claim for entitlement to a TDIU prior to June 24, 2011, in May 2012 the Board remanded this issue for the RO/MAC to undertake the following development:

. . . 3.  Undertake appropriate efforts to determine the Veteran's annual income, from December 5, 2008 (i.e., the effective date of his only service connected disability), to June 24, 2011, and determine if such income was below the poverty threshold for this period. These efforts should be associated with the claims folder, to include the relevant poverty levels for this period. . . .

. . . 6.  Then, the RO must readjudicate the matters on appeal, to include the entitlement to a TDIU, prior to June 24, 2011.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response.

While the appeal was in remand status, the Veteran's financial information was not obtained despite it being requested in a May 2012 letter to the Veteran.  Nonetheless, the Board finds that another remand to attempt to obtain this information is required because a June 2012 statement in support of claim makes it clear that neither the Veteran nor the RO/AMC understood the importance of this information when considering whether the claimant met the criteria for an earlier effective date for his TDIU as it relates to determining whether his income was below the poverty threshold prior to June 24, 2011. 38 C.F.R. § 19.9 (2012).

The Board also finds that a remand is required because, while the Remand directed the RO to obtain and associate with the claims file ". . . the relevant poverty levels for this [pre-June 24, 2011,] period," this information was not obtained while the appeal was in remand status.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance).

Lastly, the Board finds that a remand is required because, while the Remand directed the RO to ". . . readjudicate the matters on appeal, to include the entitlement to a TDIU, prior to June 24, 2011 . . .," no such adjudication was carried out while the appeal was in remand status.

Accordingly, this issue is REMANDED to the RO/AMC for the following action:

1.  The RO/AMC should contact the Veteran and obtain a statement of his annual income for each of the years from December 5, 2008 (i.e., the effective date of his only service connected disability), to June 24, 2011.  The RO/AMC's request for this information should explain that this information is needed to ascertain if his income was below the poverty threshold at any time prior to June 24, 2011, and therefore may entitle him to an earlier effective date for the grant of service connection for his TDIU.  All actions to obtain this information should be documented in the claims file.

2.  The RO/AMC should associate with the claims file the poverty levels for each of the years from December 5, 2008 (i.e., the effective date of his only service connected disability), to June 24, 2011.  

3.  The RO/AMC should adjudicate the claim for entitlement to a TDIU prior to June 24, 2011.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response before returning the appeal to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs