Citation Nr: 1317522 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-27 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for leiomyosarcoma of the right arm, claimed as due to herbicide (Agent Orange) exposure. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for type II diabetes mellitus and leiomyosarcoma of the right arm. This case was before the Board in September 2012 and was remanded for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran does not have confirmed duty or visitation in the Republic of Vietnam or exposure to an herbicide agent in service. 2. The Veteran's type II diabetes mellitus was not shown in service or for many years thereafter, and there is no medical or lay evidence even suggesting the disability is related to service for reasons other than the claimed herbicide exposure. 3. The Veteran's leiomyosarcoma was not shown in service or for many years thereafter, and there is no medical or lay evidence even suggesting the disability is related to service for reasons other than the claimed herbicide exposure. CONCLUSION OF LAW 1. The requirements for establishing entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for establishing entitlement to service connection for leiomyosarcoma of the right arm have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the duty to notify was satisfied by way of a letter sent to the Veteran in November 2006 that fully addressed all notice elements and was sent prior to the initial adjudication of his claims in April 2007. The letter informed him of what evidence was required to substantiate the claim and VA's respective duties for obtaining evidence. He was also asked to submit evidence and information in his possession to the RO. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. With respect to the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including the Veteran's service treatment records, service personnel records, and private treatment records. The Board notes the Veteran has not been afforded a VA medical examination with respect to this claim; however, the Board finds that a VA examination is not necessary in order to decide this claim. In this regard, there is no evidence of the claimed conditions in service, and the preponderance of the evidence is against a finding of herbicide exposure in service. The Veteran does not contend and the evidence does not suggest that his claimed disabilities are related to service for reasons other than the claimed herbicide exposure. In the absence of evidence of an in-service disease, injury, or event concerning the claimed conditions, a VA examination is not required as it would serve no useful purpose. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Board also notes that actions requested in the prior remand have been undertaken. Instructions pertinent to the claims being decided included attempting to verify the Veteran's alleged herbicide exposure in Vietnam. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus and leiomyosarcoma becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases, such as type II diabetes and leiomyosarcoma associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during the prescribed period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, 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 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 C.F.R. § 3.307 (a). "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. § 3.313 (a); see also Haas v. Peake, 525 F. 3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). The fact that the foregoing regulatory presumption of service connection concerning disabilities related to herbicide exposure are not applicable does not preclude consideration of the claim for service connection on a direct basis or on a presumptive basis as a chronic disease under 38 C.F.R. § 3.309(a). See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he was exposed to Agent Orange during service, and that his current type II diabetes mellitus and leiomyosarcoma in his right arm are due to that exposure. However, the evidence of record does not show that the Veteran's service involved duty or visitation in the Republic of Vietnam to warrant the presumption of exposure or the presumption of service connection. The Veteran states in his September 2008 substantive appeal, that his squadron (VP-46) was sent on temporary duty to Adak, Alaska in late 1970 and that, from there, a contingent (including the Veteran) was sent to Subic Bay to fly monitoring and tracking missions along the coast of Vietnam. According to the Veteran, he visited Cam Rahn Bay, Vietnam three times during the deployment, once overnight and twice for a couple of hours to refuel the plane. On remand, the RO contacted the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the Veteran's claimed herbicide exposure. It was determined that the squadron, VP-46, was deployed to Adak, Alaska in January 1971 and returned to Naval Air Station (NAS) Moffett Field in California in June 1971. The JSSRC indicated that a review of the Carrier, Carrier-Based Squadrons and Non-Carrier Based Squadron deployment records to find information regarding the Veteran's squadron was conducted. A review of the general command and squadron history for VP-46 revealed that the squadron was based Iwakuni, Japan from February 1972 to August 1972 with detachments to NAS Cubi Point, Philippines during that time period. The JSSRC verified that the VP-46 squadron was deployed to the Vietnamese theater of operations. However, there was no evidence to confirm any duty or visitation in the Republic of Vietnam. Also, the Veteran's personnel records do not indicate that he was ever located on the ground in Vietnam during his active service. A search of the Veteran's unit history through the JSRRC failed to confirm any duty or visitation to Vietnam. The only evidence of record supporting the Veteran's contentions of service in Vietnam is shown to be his own testimony. No other evidence has been submitted in support of his claim of exposure to Agent Orange. A search of the Veteran's unit history through the JSRRC failed to confirm any duty or visitation to Vietnam. While the Veteran is competent to report on activities he witnessed or participated in, the Board finds the official service records and the information from official sources more probative and persuasive concerning whether he visited Vietnam than the Veteran's allegations made in conjunction with the filing of this claim. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The evidence of record fails to show that the Veteran served on land in Vietnam. Thus, the most probative evidence indicates that the Veteran was not exposed to herbicides including Agent Orange during his active duty. Accordingly, as the preponderance of the evidence is against a finding of herbicide exposure, service connection for type II diabetes mellitus and leiomyosarcoma of the right arm as due to such exposure must be denied. Regarding type II diabetes mellitus, the evidence does not show and the Veteran does not contend that his diabetes is otherwise related to service. The Veteran's service treatment records reveal no complaints, diagnoses, or treatment of type II diabetes mellitus. A post-service treatment record dated in February 2002 indicates that the Veteran was recently diagnosed with diabetes by Dr. A.C. Such is approximately 29 years after separation of service. The Veteran has not alleged that he suffered from the disorder prior to this time, nor does the record reflect such. Indeed, service treatment records reveal no complaints or findings of diabetes and his urinalysis was negative for sugar on his separation examination. There is no evidence of record, lay or medical, suggesting that his diabetes is related to service on a basis other than the alleged herbicide exposure. Accordingly, the preponderance of evidence is against the claim for service connection for type II diabetes mellitus on a direct basis or on a presumptive basis as a chronic disease pursuant to 38 C.F.R. § 3.309(a). With respect to leiomyosarcoma of the right forearm, it was first diagnosed by biopsy in 1999. A March 1996 record noted a biopsy revealed a hypertrophic scar of the right arm. The Veteran does not contend and the evidence does not suggest the condition arose prior to that date. In this regard, service treatment records contain no mention of complaints or findings relevant to an injury or disease related to right forearm or any malignant tumor. There is no medical evidence of record suggesting that the Veteran's leiomyosarcoma manifested during or as a result of, active military service. The Veteran does not contend the condition is related to service for reasons other than herbicide exposure. In summary, the preponderance of the evidence is against the claims for service connection for type II diabetes mellitus and leiomyosarcoma of the right arm. Accordingly, the claims for service connection for these disabilities are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. 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, 55-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide (Agent Orange) exposure is denied. Entitlement to service connection for recurrent leiomyosarcoma of the right arm, claimed as due to herbicide (Agent Orange) exposure is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs