Citation Nr: 1318767	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  12-05 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Diego, California


THE ISSUES

1. Entitlement to service connection for type II diabetes mellitus, claimed as secondary to in-service exposure to herbicides. 

2. Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as secondary to diabetes mellitus and in-service exposure to herbicides. 

3. Entitlement to service connection for peripheral neuropathy of the upper extremities, claimed as secondary to diabetes mellitus and in-service exposure to herbicides.

4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus and in-service exposure to herbicides.

5. Entitlement to service connection for renal disease, claimed as secondary to diabetes mellitus and in-service exposure to herbicides.
6. Entitlement to service connection for cerebrovascular accidents, claimed as secondary to diabetes mellitus and in-service exposure to herbicides.

7. Entitlement to service connection for a heart condition, claimed as secondary to diabetes mellitus and in-service exposure to herbicides.



REPRESENTATION

Veteran represented by:	Paul Bradley, Agent



ATTORNEY FOR THE BOARD

M. Donohue, Counsel



INTRODUCTION

The Veteran had active service from February 1969 to December 1972. 

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the RO. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).  

The issues of service connection for hypertension, renal disease, cerebrovascular disease, a heart condition and peripheral neuropathy of the upper and lower extremities are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDING OF FACT

The currently demonstrated type II diabetes mellitus is shown to be causally related to the Veteran's presumed exposure to herbicides that as likely as not was incident to his period of active service that included a visitation in December 1972 to the Republic of Vietnam.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by type II diabetes mellitus is due to disease or injury the incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  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 Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this 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).  


I.  Duties to notify and assist

The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012).  

VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. 

The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that service connection for diabetes mellitus rating is being granted.  

Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the benefit sought on appeal.


II.  Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3)  evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 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).  

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

Certain chronic disabilities, to include diabetes mellitus, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

VA regulations provide presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent or greater within a specified period in 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.  

They also provide for presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012).

These diseases include type II diabetes mellitus.  38 C.F.R. § 3.309(e).

VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32, 407 (Jun. 12, 2007). 

In Combee v. Brown, the United States Court of Appeals for the Federal held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994).  

As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, (see 38 C.F.R. § 3.309(e)), but also must determine whether his current disability is the result of active service under 38 C.F.R. § 3.303(d).



III.  Analysis

The Veteran contends that he developed type II diabetes mellitus as a result of his in-service exposure to herbicides.  Specifically, the Veteran asserts that, prior to his discharge from the Navy, he was flown from the USS Oriskany to the Republic of Vietnam (where he was exposed to herbicides) before boarding a larger aircraft on his return to the United States.  See, e.g., a June 2011 statement.

In support of his claim, the Veteran has submitted multiple lay statements that indicate that this was the method used to transfer personnel who left the ship during a cruise.  See, e.g., a May 2011 statement from D.K.; see also a January 2012 statement from the Veteran's representative.

The record also includes a command history for Fleet Tactical Support Squadron FIFTY for 1972.  This report indicates that the squadron provided logistic support for Seventh Fleet units which included providing "daily shuttles" between the Republic of Vietnam and the Seventh Fleet aircraft carriers in the Gulf of Tonkin (such as the Oriskany).  In this capacity the Board notes that deck logs from the Oriskany indicate that the carrier was stationed in this area in December 1972. 

Upon review, the Veteran's DD Form 214 states that his last duty assignment was the USS Oriskany.  This form also reports that the Veteran was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, and that he "served in Vietnam."

In one supporting lay statement, an individual noted that his records showed that there were four flights to the USS Oriskany in December 1972.  This included flights on December 3rd and December 5th of 1972.  This individual noted that the aircraft that made these flights would always fly to Da Nang in order to refuel because it was not capable of flying non-stop to the Philippines.  

The Veteran's personnel records show that he was transferred from the USS Oriskany on December 5th of 1972.  

Based on a careful review of the record, the Board finds that the competent and credible evidence tends to show that the Veteran as likely as not did visit the Republic of Vietnam in December 1972 prior to his discharge from service.  

In resolving all reasonable doubt in the Veteran's favor, he is presumed to have been exposed to herbicides in service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(i) and (iii).

In addition, the medical evidence shows that the Veteran has been diagnosed with type II diabetes mellitus. See, e.g., a June 2010 VA treatment record.  

Thus, based on the Veteran's presumed exposure to herbicides during his active duty as well as his current diagnosis of type II diabetes mellitus, service connection is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).


ORDER

Service connection for type II diabetes mellitus is granted.


REMAND

For the following reasons, the Board finds that the remaining issues must be remanded to ensure that that the Veteran is accorded full compliance with the statutory duty to assist.

The Veteran claims that his hypertension, renal disease, cerebrovascular disease, heart disability and peripheral neuropathy of the bilateral upper and lower extremities are due to his now service-connected type II diabetes mellitus.  He has also alleged that these disabilities are the result of his in-service herbicide exposure.  See a February 2012 statement from the Veteran's spouse.

The record indicates that the Veteran has been diagnosed with hypertension, renal failure, a cerebrovascular accident and neuropathy.  The record also indicates that mitral regurgitation was identified in a February 2010 VA echocardiogram study. 

Although none of the Veteran's diagnoses are on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e) (2012); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 

Further, service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012); see also Harder v. Brown, 5 Vet.App. 183, 187 (1993).  

Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App.439, 448 (1995).

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet.App. 509, 512 (1998).

Based on this evidentiary posture, the Board finds that these issues contain medical questions which cannot be answered by the Board.  See Colvin v. Derwinski, 1 Vet.App. 191, 175 (1999).

These questions concern the nature of the Veteran's claimed disabilities and whether such disorders were caused or aggravated by his now service-connected diabetes mellitus or are related to his presumed in-service exposure to herbicides. 

These questions must be addressed by an appropriately qualified medical professional.  A medical examination is therefore necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012).

Finally, the record reflects that the Veteran has been receiving ongoing VA medical treatment.  On Remand, the Veteran's recent treatment records should also be obtained and associated with his claims folder.  38 U.S.C.A. § 5103A(c) (West 2002).  See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent)

Accordingly, these remaining matters are REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for the claimed disabilities remaining on appeal.  After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider.

A specific request should be made for any outstanding VA medical records dated since August 2011.

All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder.

2. Then, the RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed hypertension, renal disease, cerebrovascular disease, heart condition and peripheral neuropathy of the upper and lower extremities.  The claims folder must be provided to the examiner for review. All necessary testing should be conducted. 

Following examination and review of the claims folder, the examiner is requested to provide an opinion as to:

A) whether it is at least as likely as not that the disorder(s) is/are related to the Veteran's military service.  In so doing, he or she should specifically address whether the any identified hypertension, renal disease, cerebrovascular disease, heart condition and peripheral neuropathy of the upper and lower extremities is related to the Veteran's active duty service, to include his presumed herbicide exposure therein, and;

B) whether it is at least as likely as not that any identified hypertension, renal disease, cerebrovascular disease, heart condition and peripheral neuropathy of the upper and lower extremities were caused or aggravated (permanently worsened beyond normal progression) by his service-connected diabetes mellitus. Complete rationale should be provided for all opinions expressed. 

3. After completing all indicated development, the RO should readjudicate the remaining issues on appeal.  If any benefit sought on appeal remains denied, the Veteran should be provided with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs