Citation Nr: 1317995 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-25 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. 2. Entitlement to service connection for gatroesophageal reflux disorder (GERD), to include as secondary to service-connected sinusitis or anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty in the United States Air Force from November 1967 to June 1978, with an additional period of reserve service following separation from active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Los Angeles, California, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a Travel Board Hearing in May 2011. A transcript is associated with the claims folder. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. These issues were among those before the Board in September 2011, at which time it was determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for diabetes mellitus. The issues of service connection for diabetes mellitus on a de novo basis and service connection for GERD were remanded for additional development. They have now been returned to the Board for further appellate review. The issue of service connection for bronchial asthma was also remanded by the Board in September 2011. Subsequently, service connection for this disability was granted in a January 2013 rating decision. This represents a complete grant of the benefit sought on appeal, and this issue is no longer before the Board. Unfortunately, the Board will find that it necessary to once again REMAND the issue of service connection for GERD to include as secondary to service connected sinusitis or anxiety. This issue will be 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 Veteran did not serve in Vietnam, and is not presumed to have been exposed to herbicides such as Agent Orange. 2. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides such as Agent Orange while on temporary duty in Thailand in the spring of 1972. 3. The service treatment records are negative for complaints, treatment or diagnoses regarding diabetes; diabetes was initially diagnosed many years after discharge from service and has not been related to active service by continuity of symptomatology or competent medical opinion. CONCLUSION OF LAW Diabetes mellitus was not incurred due to active service, not may it be presumed to have been incurred due to active service. 38 U.S.C.A. §§ 1101, 1112, 1110, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in January 2004 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. Although the notification regarding the assignment of disability ratings and effective dates was not received until after the initial adjudication of the claim in a September 2011 letter, this does not result in any harm to the Veteran, as his claim has been readjudicated since receipt of the notification. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained, as well as his personnel records. Private medical records and VA treatment records have been obtained. The Veteran has offered testimony at a Board hearing, and a transcript of this hearing is in the record. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. An attempt has been made to verify his claimed exposure to herbicides with the U.S. Army and Joint Services Research Center (JSRRC). The development in cases of alleged herbicide exposure in Thailand contained in the provisions of M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n), (p), and (q) has been completed. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that he has developed diabetes mellitus as a result of exposure to herbicides such as Agent Orange during active service. He notes that he did not serve in Vietnam, but contends that he had approximately 10 days of temporary duty at Korat airbase in Thailand, and that the airplane in which he was traveling also touched down at U-Tapao airbase in Thailand. The Veteran states that while in Thailand he serviced the C141 cargo aircraft that transported herbicides such as Agent Orange. He believes that he was exposed to the residue of herbicides on the inside of these airplanes. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. This method, however, may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309, such as diabetes mellitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If diabetes mellitus becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of diabetes mellitus during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. 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 or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, then diabetes mellitus is among the diseases that shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that 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); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 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 VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). In this case, the medical evidence clearly shows that the Veteran has a current diagnosis of diabetes mellitus, and that he is continually followed and treated for this disability. Therefore, the requirement of a current diagnosis of the claimed disability has been met. The Veteran's diabetes mellitus, however, must still be related by the evidence to his active service before service connection can be established. The Board will now turn to the Veteran's claims that he was exposed to Agent Orange during service, which in turn led to the development of his diabetes mellitus. The Veteran does not claim to have served in Vietnam, and his records do not show that he served in Vietnam. Therefore, he is not presumed to have been exposed to herbicides such as Agent Orange during service. 38 C.F.R. § 3.307. The Veteran does claim to have been exposed to Agent Orange or a similar herbicide during temporary duty in Thailand in the spring of 1972. His personnel records have been obtained, and while they do not contain any specific reference to duty in Thailand, his DD Form 214 does show some overseas service during this period. In addition, the Veteran has provided sworn testimony that he had such service, which the Board finds credible. It follows that for the purpose of this decision, the Board will proceed as if the Veteran's service in Thailand has been verified. The Board, however, notes that simply having service in Thailand is not sufficient to show that the Veteran was exposed to herbicides such as Agent Orange. Such exposure must still be verified. The Veteran testified that he had temporary duty in Korat Air Force Base in Thailand, in April 1972. His duty was to service C141 cargo aircraft that flew back and forth from Vietnam. The Veteran states that he worked primarily on the flight line, and that he worked up to 18 hours each day. This lasted for approximately 10 days. Afterwards, he boarded a transport plane which was also carrying some Marines. The plane landed in U-Tapao air force base in Thailand to drop off the Marines, where it refueled and stayed a couple of hours before departing. See Transcript. The Veteran has submitted additional statements that indicate he believes the C141 aircraft on which he worked carried herbicides such as Agent Orange, and that this cargo left a residue to which he was exposed. The Veteran's contentions were sent to the JSRRC for verification in July 2012. The response stated that available historical information does not document the spraying, testing, transporting, storage or usage of Agent Orange at U-Tapao Air Base Thailand in March 1972 to May 1972. Also, the information does not document any shipment of Agent Orange or tactical herbicides to U-Tapao or through the aerial port squadrons by any mode of transportation. Therefore, the Veteran's contentions pertaining to exposure to herbicides through contact with C141 aircraft are not supported by the evidence. The Board notes that the provisions of M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n), (p), and (q) contain instructions and information pertaining to contentions regarding herbicide exposure at one of the Royal Thai Air Force Bases including U-Tapao and Korat. Basically, these provisions note that historical information obtained from the Department of Defense show that the only use of tactical herbicides in Thailand was in some limited testing in 1964 near Pranburi. This location was not near either Korat or U-Tapao, and occurred nearly eight years before the Veteran's deployment. Commercial herbicides were sporadically used within the perimeters of air bases; however, only Veterans whose duties were near the perimeter of the base, such as security policeman or dog handlers, can be conceded to have been exposed. The Veteran testified that he worked for up to 18 hours a day on the flight line, and there is no indication that his duties took him to the perimeter of the base. Finally, these provisions note that there is no presumption of secondary exposure based on being near or working on aircraft that flew over Vietnam, and it is inaccurate to think that herbicides covered every aircraft associated with Vietnam. Also, there are no studies for which VA is aware showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(r). The Board must conclude that the preponderance of the evidence is against a finding that the Veteran was exposed to an herbicide such as Agent Orange while on temporary duty in Thailand. A copy of Compensation and Pension (C&P) Service's "Memorandum for the Record" will be placed in his claims file. Finally, the Board notes that the Veteran has presented written statements indicating that he was exposed to the residue of Agent Orange while cleaning the insides of C141 airplanes stateside, and that these aircraft contained dead vermin that were covered with the residue of Agent Orange. Although the Veteran no doubt worked about these aircraft, there is no evidence whatsoever that he was exposed to herbicides such as Agent Orange while doing so. Although the Veteran does not state why he believes that the vermin were killed by herbicides or why there would be residue in the airplane, it bears repeating that there are no studies for which VA is aware showing harmful health effects from any such secondary or remote herbicide contact that may have occurred. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(r). It follows that as the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides such as Agent Orange during service. In the absence of such exposure, his current diabetes mellitus may not be presumed to be the result of herbicide exposure. The Board must still consider entitlement to service connection for diabetes mellitus on a direct basis; however, this is not supported by the evidence. The Veteran's service treatment records are entirely negative for complaints, treatment or diagnoses regarding diabetes. His April 1978 separation examination states that the endocrine system was normal, and the urinalysis was negative for sugar or albumin. The Veteran denied having a history of sugar or albumin in his urine on the Report of Medical History obtained at that time, although his mother was noted to be diabetic. The post medical records are also negative for evidence regarding the onset of diabetes until many years after discharge from service, and until after the Veteran's discharge from the reserves. Periodic physical examinations for the reserves show that the Veteran had a normal endocrine system in May 1982 and November 1985, and the urinalyses conducted at these times were negative for sugar or albumin. The Veteran himself has stated that his diabetes mellitus was first diagnosed in 1990, which was approximately one year after his 1989 discharge from the reserves. Therefore, there is no continuity of symptomatology between the diabetes that was diagnosed in 1990 and the active service that ended in 1978. Finally, the Board notes that his diabetes mellitus has not been related to active service by competent medical opinion. He was afforded a VA Agent Orange examination in November 2002 which noted that diabetes is considered connected to exposure to herbicides such as Agent Orange. As has been demonstrated, however, there is no evidence that the Veteran has such exposure, and this examination did not otherwise relate the Veteran's diabetes to service. There is no other competent medical opinion that relates the Veteran's current diabetes mellitus to service on a direct basis. At this juncture, the Board notes that the Veteran has not been provided a VA examination that addresses the matter of service connection on a direct basis. In the complete absence of any evidence that relates the current diagnosis of diabetes to service on that basis, even the low evidentiary threshold required to trigger the need for an examination has not been met. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board has considered the Veteran's own opinion that his diabetes mellitus is related to service, but notes that this is largely based on the unsupported belief that he was exposed to Agent Orange in service. He has not related his diabetes mellitus to service on a direct basis, and as this is not the type of disability to which a layman can draw conclusions based on direct observation, there is no evidence that he has the requisite competence to do so. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. REMAND The Veteran contends that his GERD may be related to service-connected disabilities such as his sinusitis or anxiety. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). The September 2011 remand requested that the Veteran be provided a VA gastrointestinal examination to determine the etiology of his GERD. The examiner was to opine as to whether the Veteran's service-connected sinusitis caused or aggravated his GERD. The examination was conducted in November 2011 and an opinion was obtained in January 2013. The January 2013 opinion addressed both service connection on a direct basis, and as secondary to the Veteran's sinusitis. The Board, however, notes that the record includes a May 2011 private medical opinion that states the Veteran's GERD may be attributed to his service-connected anxiety. The rationale for this opinion said that anxiety may cause increase acid production worsening GERD. Furthermore, the January 2013 opinion noted that the Veteran's active duty gastric condition was at least as likely as not transient and acute in nature and secondary to causes that included his emotional state. These two opinions raise the possibility that the Veteran's GERD was either caused or aggravated by the Veteran's service-connected anxiety disorder. This theory has not yet been addressed. Therefore, an additional examination and opinion must be obtained in order to ascertain if the Veteran's GERD is due to or aggravated by his service-connected anxiety. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA gastrointestinal examination in order to determine the nature and etiology of his gatroesophageal reflux disorder. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner for use in the study of this case. After the completion of the examination and review of the record, the examiner should provide the following opinions: a) Is it at least as likely as not that the Veteran's GERD was caused by his service-connected anxiety disorder? b) If the answer to (a) is no, is it at least as likely as not that the Veteran's GERD was aggravated (permanently increased in severity beyond the natural progression of the disease) by his service-connected anxiety disorder? c) If the answer to (b) is yes, is it possible to establish a baseline of severity for the Veteran's GERD prior to aggravation? If so, please describe that baseline. The reasons and bases for all opinions must be provided. If the examiner finds that they are unable to provide the requested opinion without resort to speculation, the reasons and bases for that opinion should also be provided. Any evidence necessary to provide the requested opinion should be identified and an attempt should be made to obtain this evidence. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs