Citation Nr: 1317530	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  08-28 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

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

2.  Entitlement to service connection for heart disease.  

3.  Entitlement to service connection for hypertension.  

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


ATTORNEY FOR THE BOARD

P. Childers, Counsel





INTRODUCTION

The Veteran served on active duty from May 1965 to April 1967.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2007 and April 2009 by a Department of Veterans Affairs (VA) Regional Office (RO).  

In correspondence dated in May 2012, the Veteran withdrew his request for a Board hearing via videoconference, and he has not asked to present his case in a Travel Board or Central Office hearing.  The request for a hearing is therefore deemed withdrawn and the Board will continue with the appeal.  See 38 CFR 20.704(d).  

In September 2012, the Board denied an increased rating for posttraumatic stress disorder (PTSD).  In an October 2012 statement, the Veteran appears to be raising a new for an increased rating.  As this has not been adjudicated by the Agency of Original Jurisdiction (AOJ) the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issues of entitlement to service connection for heart disease and hypertension, and the issue of entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  The Veteran did not set foot on land or serve in the inland waters of Vietnam during the Vietnam War, so Agent Orange exposure is not presumed; and actual exposure to Agent Orange is not shown.

2.  Diabetes mellitus type II was not affirmatively shown to have been present during service; diabetes mellitus type II was not manifested to a compensable degree within one year from the date of separation from service in 1967; and the preponderance of the evidence shows that diabetes mellitus type II, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to any incident of service, including the Veteran's service-connected PTSD. 


CONCLUSION OF LAW

Diabetes mellitus type II was not incurred, and may not be presumed to have been incurred, during active duty service; and it is not secondary to a service-connected disability.  38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice requirements were accomplished in letters sent in February, April, and August of 2007.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  

All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained.  The Veteran's service treatment records and service personnel records are in the claims file.  His VA and private medical records have also been obtained and are in the claims file.  Ship's history records have also been obtained.  In addition, the Veteran was afforded a VA examination, and the Board has reviewed this evidence and finds it to be adequate for a decision in this matter.  See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The Veteran was also afforded an opportunity to give testimony before the Board, which he initially accepted but later declined.  As he has not indicated that there are any additional records that VA should seek to obtain on his behalf, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. 

II. Merits

The Veteran asserts that that he developed diabetes mellitus type II due to exposure to Agent Orange while serving aboard the aircraft carrier, the U.S.S. ST. PAUL, while the ship was deployed in the territorial waters off Vietnam in 1966.  He contends that while aboardship he was exposed to dioxin residue on aircraft returning from sorties over Vietnam, and to dioxins drifting from land onto the ship.

DD-214 and other service personnel records, including a November 1966 Letter of Commendation, confirm that the Veteran served on the U.S.S. ST. PAUL (CA-73) during the Vietnam War.  The 1966 Letter of Commendation praised the Veteran for his service during the ST. PAUL's first deployment in combat operations off South Vietnam.

Service treatment records contain no record of any complaint, finding, history, symptom, treatment, or diagnosis of elevated blood sugar, much less diabetes mellitus.  

In 1967 the Veteran separated from active duty service.  

Medical records dating from 2000, but not before, show a diagnosis of diabetes mellitus type II.  

In a memorandum dated May 1, 2009, the U. S. Army & Joint Services Records Research Center (JSRRC) advised that there was no evidence that Navy ships transported tactical herbicides from the United States to Vietnam; no evidence that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides; and no evidence that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam.

In May 2011 the JSRRC notified VA that 1966 command history records confirm that the U.S.S. ST. PAUL (CA-73) conducted periods of Naval Gunfire Support Operations off the coast of the Republic of Vietnam from June 5 to July 10; July 24 to August 28; and September 16 to October 17, 1966.  During that timeframe the U.S.S. ST. PAUL supported forces ashore in Vietnam.  It made ports of call in the Philippines, Japan, and Hong Kong.

In statements received by VA in August 2011 and August 2012, the Veteran reiterated that the U.S.S. ST. PAUL was situated in the territorial waters of Vietnam during the Vietnam War.  In the 2012 statement he said that the U.S.S. ST. PAUL was situated 3 miles off the coast of Vietnam while he was aboard that vessel.

Applicable Law

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 C.F.R. § 3.303(a).  Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  

There is a presumption of service connection for diabetes mellitus for a veteran who served 90 days or more of active service after December 31, 1946, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

In addition to the foregoing, a Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  If a Veteran is presumably exposed to Agent Orange under, there is a presumption of service connection for diabetes mellitus, type 2.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).  

Analysis

On the basis of the service treatment records alone, diabetes mellitus type II was not affirmatively shown to have had onset during service, so service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established.  Indeed, the record contains no evidence of diabetes mellitus type II until the year 2000; more than 30 years after the Veteran's separation from service and well beyond the one-year presumptive period for a chronic disorder under 38 C.F.R. §§ 3.307(a).  Consequently, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection under 38 C.F.R. § 3.309(a) is not established.  

As for service connection on the basis of an initial diagnosis after service, there is no medical evidence of record which suggests that the Veteran's diabetes mellitus type II actually began in-service; however, in a letter penned in or around October 2011 a VA cardiologist suggested that the Veteran's diabetes mellitus type II may be aggravated by his service-connected PTSD.  38 C.F.R. § 3.310.  The cardiologist stated that a feeling of constant danger could cause a person to engage in stress avoidant behaviors such as smoking or overeating, which could in turn have an effect on diseases such as diabetes.  This opinion, which is arguably outside of this physician's medical expertise (see Sklar v. Brown, 5 Vet. App. 140, 146 (1993)(providing that a specialist's opinion as to a medical matter outside of his or her specialty is to be given little weight)), is too speculative to establish a causal relationship; so it is of little probative weight.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (providing that generic statements about the possibility of a link are too general and inconclusive to establish a causal relationship).  In other words, the cardiologist has not stated that this Veteran's diabetes was caused by smoking and/or overeating secondary to his PTSD, and no other physician has asserted there was this link.  Moreover, the cardiologist's opinion is flatly refuted by a VA Compensation and Pension physician, who advises that there is no mechanism for endocrine disorders as diabetes mellitus to be caused or aggravated by a non-endocrine disorder such as PTSD; and the Board finds this evidence, which was provided after appropriate examination, laboratory work, and claims file review, to be highly probative evidence against the claim.  See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 845 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S.Ct.1251 (2000) (it is not error for the Board to value one medical opinion over another, so long as a rational basis for doing so is given).  

The Board notes that a veteran, under certain circumstances, may be competent, as a layperson, to identify a simple medical condition and offer an opinion on a simple medical condition.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); Jandreau at 1377, n. 4 (sometimes a layperson will be competent to identify a simple condition, for example, a broken leg, and sometimes not, for example, a form of cancer).  However, diabetes mellitus type II is not a condition under case law that has been found to be capable of lay observation, as clinical testing is required for its diagnosis.  As the presence or diagnosis of diabetes mellitus type II cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, diabetes mellitus type II is not a simple medical condition that the Veteran is competent to identify.  The determination as to the presence or diagnosis of the disability is therefore medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim.  And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of diabetes mellitus type II.  Additionally, to the extent the Veteran implies a causal relationship between diabetes mellitus type II and his service, the "nexus" requirement, such an implication would constitute the Veteran's opinion, but such an opinion would require specialized education, training, or experience, which has not been factually established.  The Veteran's lay opinion regarding a direct nexus to service is consequently not probative evidence.

The Veteran also propounds that his diabetes mellitus type II may be secondary to Agent Orange exposure during his wartime service on a naval vessel in Vietnam waters.  

"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; that is, within the land borders, including the inland waters, of Vietnam.  38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). 

In order for the presumption of exposure to be extended to the veteran, there must be evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier.  Haas, 525 F.3d 1168.  

In this case the Veteran concedes that the U.S.S. ST. PAUL was situated no closer than 3 miles off the coast of Vietnam during his time aboardship.  He also admits that he never set foot on land in Vietnam.  He does, however, contend that the vessel was "over sprayed by herbicide carrying aircraft."  

As stated before, notwithstanding the provisions of 38 C.F.R. § 3.309(e), a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  It is the Veteran's general evidentiary burden to establish all elements of his claim, including the nexus requirement under 38 C.F.R. § 3.303(d).  Fagan v. Shinseki, 573 F.3d. 182, 1287 (2009).  

Although military records confirm that the U.S.S. ST. PAUL provided combat support, including rocket fire, from the waters off Vietnam, this vessel did not pass along the inland waterways of Vietnam or dock on the shore or at a pier in Vietnam during the Veteran's time on that vessel, so the presumption of Agent Orange exposure based on this vessel's service in Vietnam does not apply.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  Moreover, the notion that Agent Orange could contaminate a ship due to its proximity to the Vietnam coast was flatly rejected by the Court in Haas, and the Veteran has not presented any corroborative evidence that he was actually exposed to Agent Orange aboard ship.  Additionally, there is no evidence, other than mere conjecture, of any incidental exposure to dioxins via residue on returning sorties or by airborne drift.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (statements favorable to the veteran's' claim that do little more than suggest a possibility are too speculative to establish the required nexus for service connection).  

As regards the proposition that there was incidental dioxin contamination on the U.S.S. ST. PAUL, the Joint Services has found no evidence that there was residual dioxin contamination from returning sorties on vessels off Vietnam or on equipment that was used in Vietnam; and there is no evidence of record, other than the Veteran's unsupported allegation, to the contrary.  The Board therefore accords the Joint Services' determinations, which were made after diligent investigation, great weight; and accords the Veteran's bare, unsubstantiated allegations less weight.  See Owens v. Brown, 7 Vet. App. 429 (1995) (providing that it is the Board's fundamental responsibility to evaluate the probative value of the evidence).  The weight of the evidence is accordingly against the notion that the Veteran was exposed to Agent Orange during service, including his wartime service on the U.S.S. ST. PAUL in the waters off Vietnam.  Service connection for diabetes mellitus type II due to exposure to Agent Orange is therefore not warranted.   

In short, the preponderance of the evidence shows that the Veteran's diabetes mellitus type II, which began more than 40 years after service, did not begin during service and is not related to any incident of the Veteran's service, including a service-connected disability.  The evidence also preponderates against a finding that the Veteran was incidentally exposed to Agent Orange during his wartime service in the waters off Vietnam.  Service connection for diabetes mellitus type II based on all applicable theories of service connection, including alleged exposure to Agent Orange, or as aggravated by the Veteran's service-connected PTSD, is therefore not warranted and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for diabetes mellitus type II is denied.


REMAND

As regards the claims of service connection for hypertension and heart disease, the Veteran contends that these disorders may be secondary to his service-connected PTSD.  In October 2011, he submitted a letter written by a VA staff cardiologist/professor of medicine.  In this letter the cardiologist noted that the Veteran had been involved in combat with the possibility of instant death during the Vietnam War, and stated that this was a stress that has a long term effect on the body.  The cardiologist added that the feeling of constant danger can raise blood pressure and lead to behaviors that influence the general health and that could have an effect on diseases such as coronary artery disease.  He then advised that PTSD had been listed as being associated with increased risks for conditions such as angina, congestive heart failure, and asthma in a recent medical treatise work titled Psychosomatic Medicine 2009; (9):1012.

VA treatment records dating from 1996 indicate treatment, including nitroglycerin, for chest pain/angina (see, e.g., VAMC emergency department record dated April 16, 2011); and VA treatment records dated in December 2009 reflect a myocardial infarction, coronary artery disease, congestive heart failure, and hypertension.  

In September 2012 the Board remanded the issues of service connection for heart disease and hypertension for a VA examination and opinion as to whether the Veteran's heart disease(s) and hypertension were secondary to his service-connected PTSD.  In the examination instructions the Board requested that the examiner include a discussion of the opinions provided by the VA cardiologist.  The resulting October 2012 examination report, which was adverse to the Veteran, does not include a discussion of the VA cardiologist's opinion as the Board requested.  Accordingly, another examination and opinion is warranted.  

Since the claims file is being returned, it should be updated to include VA treatment records compiled since October 2012.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

As for the TDIU claim, a final decision on that question must wait until the other service connection claims on appeal are resolved, because TDIU benefits are based on the combined impairment of all service connected disabilities.  

Accordingly, the case is REMANDED for the following action:

1.  Associate, with the claims file, VA medical records pertaining to the Veteran dating from October 2012 to the present.  Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran.  

2.  After associating all outstanding records with the claims file, schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of the Veteran's heart disease and his hypertension.  

The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination.  All indicated tests should be done.  The examiner should then record all pertinent medical complaints, symptoms, and clinical findings, and review the results of any testing prior to completion of the report.

Following completion of the examination and a review of the claims file, to include service and post-service medical records, the examiner must state, for each diagnosed heart disorder and the Veteran's hypertension, whether it is at least as likely as not that the disorder was caused by the Veteran's service-connected PTSD.  

If it is determined that the Veteran's hypertension or any diagnosed heart disorder was not caused by the Veteran's service-connected PTSD, then opine, for each disorder, as to whether it is at least as likely as not that the disorder was aggravated by the Veteran's service-connected PTSD.  

NOTE:  Aggravation is defined as a permanent worsening beyond the natural progression of the disability.  

A complete rationale for all opinions must be provided, which should include a discussion of the Veteran's account as to the onset and history of his heart disease and hypertension, as well as the opinion expressed by the VA cardiologist in October 2011.  If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so.

3.  After completion of all of the above and any other development deemed necessary, re-adjudicate the claims.  If any claimed benefit remains denied, provide the Veteran a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
 
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs