Citation Nr: 1315686 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 06-22 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from January 1974 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied, in pertinent part, the Veteran's claim of service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals. A videoconference Board hearing was held at the RO in May 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In October 2010 and October 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As the Board noted in its October 2010 and October 212 remands, the issue of entitlement to service connection for a dental disability, for purposes of outpatient treatment only, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board referred this claim back to the RO/AMC in both its October 2010 remand and October 2012 remand. The AMC subsequently referred this claim back to the RO in April 2012. To date, it appears that the RO has not taken any action on this claim. Therefore, the Board does not have jurisdiction over this claim and it is again referred to the RO again for appropriate action. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records; they were reviewed by the RO and noted in the February 2013 Supplemental Statement of the Case (SSOC) and by the Board. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran did not have service, or other duty or visitation, in the Republic of Vietnam. 3. There is insufficient evidence to show that the Veteran had exposure to Agent Orange or other herbicide agents during his period of service. 4. The preponderance of the evidence is against a finding that diabetes mellitus had an onset in service, manifested within one year of service separation, or is otherwise related to the Veteran's active military service. CONCLUSION OF LAW Diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to be due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran by correspondence in May 2005. This letter detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO informed the Veteran in a July 2006 letter. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In October 2010 the Board remanded in order for the RO to obtain VA treatment records and private treatment records. In the November 2010 letter the RO asked for the Veteran to identify any additional private treatment records and to sign an authorization form in order for the RO to obtain any additional private treatment records; the Veteran submitted authorizations and some of the additional records were obtained. In March 2012 the RO contacted the Veteran for new authorization forms; however the Veteran did not respond. In October 2012 the Board remanded in part to obtain VA and private treatment records. Additional VA treatment records were obtained and added to the Virtual VA paperless claims processing system. The RO sent the Veteran a letter in November 2012 requesting authorization to obtain private treatment records; however, the Veteran did not respond. Duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). Finally, the Board remanded in October 2012 in order for the Veteran to be afforded a VA examination. The Veteran was afforded a VA examination in December 2012. The Board finds that the December 2012 VA examination were sufficient since they were a thorough and contemporaneous examinations of the Veteran that took into account records of pre-service treatment, service treatment records, and records of post-service examination and treatment. Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, the Board finds that the October 2011 and October 2012 Board remands were complied with. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim on appeal. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he incurred diabetes mellitus during active service; he alternatively contends that his in-service exposure to herbicides or other chemicals during active service caused or contributed to his current diabetes mellitus. The Veteran testified before the Board in May 2010 that an unidentified airplane had sprayed his U.S. Navy ship with an unknown chemical, which he presumed was either Agent Orange or chlorophenothane (DDT), while it was stationed in the waters offshore of Cartagena, Columbia, during his active service. After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against the issue of entitlement to service connection for diabetes mellitus. In circumstances where a Veteran has been exposed to Agent Orange, a disease associated with exposure to certain herbicide agents (e.g., Agent Orange) 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(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Type II diabetes mellitus or adult-onset diabetes is among the diseases presumed to be related to Agent Orange exposure. For service connection to be warranted they must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). A Veteran who 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. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As noted above, the Veteran testified that his diabetes mellitus is the result of in-service exposure to Agent Orange. First, the record does not show that the Veteran had "service in Vietnam," and exposure to Agent Orange or other herbicides may not be presumed. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). "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 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In Haas v. Peake 525 F.3d 1168 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that VA reasonably interpreted 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii) as requiring the physical presence of a veteran within the land borders of Vietnam (including inland waterways) during service. Id. In addition, the Federal Circuit held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal or Vietnam Campaign Medal. See Id. In this case, the Veteran's service personnel records do not show that the Veteran was ever physically present in the Republic of Vietnam for active duty service. Since, the record does not show that the Veteran had any actual service in the Republic of Vietnam there is no presumption of in-service exposure to herbicides. 38 C.F.R. § 3.309(e). In fact, the Veteran is not alleging that he was exposed to herbicides as a result of physical presence in Vietnam. Rather, he contends that he was exposed to Agent Orange while an unidentified airplane had sprayed his U.S. Navy ship with an unknown chemical while it was stationed in the waters offshore of Cartagena, Columbia. The Veteran submitted morning reports from the U.S.S. Vulcan, but the Board notes that a review of the records does not show use of herbicides, including Agent Orange, on the ship. In short, the requisite service in Vietnam is not shown. The facts of the Veteran's exposure do not fall within the recognized scenarios of herbicide exposure recognized by VA; the presumption of exposure to herbicides does not attach. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Furthermore, the Veteran's assertion regarding any actual exposure to herbicides is not supported by the evidence. As such, the Board finds the evidence is insufficient to demonstrate exposure to herbicides during the Veteran's military service. He is, therefore, not entitled to service connection on a presumptive basis for any disease identified under 38 C.F.R. § 3.309(e), including diabetes mellitus. Again, since there is no presumption of herbicide exposure on the facts of this case, the list of presumptive conditions under 38 C.F.R. § 3.309(e) is not applicable here. However, service connection for diabetes mellitus may still be established on the basis of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is also against the Veteran's claim of service connection for diabetes mellitus on a direct service connection basis. The Veteran's service treatment records are silent for any treatment or diagnosis of diabetes mellitus during service. The Veteran's December 1977 Report of Medical Examination for Separation are silent for any diabetes mellitus. The Veteran was diagnosed with diabetes mellitus in 1986, eight years after he was discharged from service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. 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 of the claimed condition for many years after service). The Veteran is not entitled to the presumption of service connection under 38 C.F.R. §3.309(a), as his diagnosis was made outside the one-year time period per 38 C.F.R. §3.307(3). In addition, to the Veteran's service treatment records being silent for any treatment or diagnosis and to the Veteran not being diagnosed until many years after service, there is only one medical opinion of record and it is against the Veteran's claim. The Veteran was afforded a VA examination in December 2012 and the VA examiner stated that the Veteran's diabetes mellitus was less likely than not incurred in or cased by the claimed in-service, event, or injury. The VA examiner noted that the Veteran's December 1973 entrance physical and December 1977 separation physical were negative for elevated glucose. Also, the Veteran's service treatment records were also silent for any elevated glucose, diagnosis or evaluation for diabetes mellitus, or exposure to any herbicides or treatment for any chemical exposure. The VA examiner noted that the Veteran was diagnosed in approximately 1986 and an August 2003 examination stated that the Veteran had a 15 year history of diabetes mellitus. Therefore, it was less likely as not for the Veteran's diabetes mellitus to have been incurred in or caused by any incident during active duty service. As noted above, the December 2012 VA examiner's opinion is the only probative opinion of record. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the December 2012 VA examiner not only reviewed the Veteran's claims file but she also provided a through rationale for her (negative) nexus opinion. A veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Therefore, without evidence of an etiological relationship, service connection for diabetes mellitus must be denied. In regards to the Veteran's testimony, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's diabetes mellitus and his military service, to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. In addition, the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). A careful review of the Veteran's VA and private treatment records did not reveal any references that that the Veteran believed his diabetes mellitus was due to service. Lay statements made when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds it pertinent that the only time the Veteran stated that his diabetes mellitus was due to service were statements made to the Board. In light of evidence of record that the fact that the only statements relating the Veteran's diabetes mellitus to his military service were made after the pursuit of this claim, the Board has to question the credibility of his contentions. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board finds that the Veteran's lay statements are not competent, credible, or more probative than the evidence of record because the evidence shows that the Veteran only reported that his diabetes mellitus was related to service after filing his claim for service connection. Therefore, the Board finds that there is no probative evidence of record that relates the Veteran's diabetes mellitus directly to his military service. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus both on a presumptive service connection basis and a direct service connection basis. First, the Board finds that the presumption of exposure does not apply to the Veteran's service on a U.S. Navy ship. Secondly, the only opinion of record is against the Veteran's claim. Therefore, service connection for diabetes mellitus is denied. ORDER Service connection for diabetes mellitus is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs