Citation Nr: 1318942 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 12-35 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1954 to November 1957 and January 1958 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a bilateral knee disability is 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. In September 2008, the RO denied the Veteran's claim of entitlement to service connection for a bilateral knee disorder. 2. The evidence associated with the claims folder subsequent to the RO's September 2008 decision has not been previously submitted to agency decisionmakers, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service-connection for a bilateral knee disorder. 3. The Veteran had no verified service in the Republic of Vietnam during the Vietnam War era, nor does the evidence show his exposure to Agent Orange or other herbicide during his period of service, including during his service at Dover Air Force Base (AFB) in Delaware. 4. Diabetes mellitus was not shown in service or within the first post-service year, and no probative and competent evidence has been received which relates diabetes mellitus to the Veteran's period of active service. CONCLUSIONS OF LAW 1. The September 2008 RO rating decision that denied the Veteran's claim for service connection for a bilateral knee disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2012). 2. As evidence received since the RO's September 2008 denial is new and material, the criteria for reopening the Veteran's claim for service connection for a bilateral knee disorder are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Diabetes mellitus was not incurred in or aggravated by service, and such may not be presumed to have been so incurred including as secondary to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bilateral Knee Disability: Claim to Reopen A. Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the Veteran's application to reopen the claim for service connection for a bilateral knee disorder was received in August 2010. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in December 2010. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. To the extent that this claim has been reopened, any failure of VA to provide the Veteran the specific notice requirements concerning new and material evidence, as addressed in Kent v. Nicholson, 20 Vet. App. 1 (2006), is harmless error. B. Analysis The RO denied the Veteran's claim of entitlement to service connection for a bilateral knee disorder in September 2008 on the basis that the Veteran's a bilateral knee disorder was not incurred in service. The Veteran was notified of the unfavorable decision but did not submit a Notice of Disagreement (NOD) or otherwise indicate disagreement within one year. As such, the September 2008 rating decision is final. 38 U.S.C.A. § 7105(c). The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence added to the claims file since the September 2008 denial includes buddy statements from fellow servicemembers attesting that the Veteran complained of knee pain during active service. Consequently, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection for a bilateral knee disorder. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a bilateral knee disorder are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To that extent, the appeal is granted. Diabetes Mellitus A. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in December 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The December 2010 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records, post-service VA and private treatment records, and Social Security Administration (SSA) disability records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. In this case, the Veteran has not been provided a VA examination to determine the nature and etiology of his diagnosed diabetes. VA need not conduct an examination with respect to the service connection claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case because there is no competent evidence indicating that diabetes is related to service. Therefore, a VA examination to evaluate his claimed diabetes is not warranted. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). B. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be presumed for certain chronic diseases, such as diabetes mellitus, which become manifest to a compensable degree within a prescribed period after discharge from service (one year), even though there is no evidence of such disease during the period of service, provided the veteran had active service of 90 days or more. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2012). C. Analysis Here, the Veteran contends that his diabetes is secondary to Agent Orange exposure. Though the Veteran readily concedes that he did not serve in the Republic of Vietnam, he instead contends that he was exposed to herbicides by the aircraft he worked on during time while he was stationed at Dover Air Force Base (AFB). There is no question that the Veteran has suffered from diabetes during the appeals period. The earliest evidence of a diagnosis of diabetes is a January 1999 VA progress note. As to the Veteran's exposure to Agent Orange during service, however, the greater weight of the evidence is against that conclusion. Again, the Veteran's service personnel records do not reflect and the Veteran himself does not contend that he had service in the Republic of Vietnam. Instead, the Veteran has stated that he was exposed to Agent Orange while stationed at Dover AFB in Delaware. In multiple statements, the Veteran asserted that he was exposed to Agent Orange while stationed at Dover as a crew chief whose duties included working on aircraft that had flown missions into Vietnam. Service personnel records indicate that the Veteran was a crew chief while stationed at Dover AFB; however, that theory is not one that has been accepted by the VA as an indication of exposure to herbicide agents. As neither the required service in Vietnam nor other exposure to Agent Orange herbicides has been shown, service connection for diabetes mellitus will not be considered on a presumptive basis with respect to Agent Orange or other herbicides. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. As the Veteran is not entitled to a presumption of service connection, he must instead establish that his diabetes was incurred in or aggravated by active service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (if VA finds a Veteran not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine whether service connection can be established on an direct basis). Service treatment records, including examination reports dated in May 1954, November 1957, January 1958, October 1963, January 1965, November 1967, are negative for a diagnosis of diabetes or findings of sugar in the urine. As indicated earlier, the first objective evidence of a diagnosis of diabetes mellitus was in January 1999, more than 30 years after his military service. It must be concluded based on the evidence that the Veteran's diabetes mellitus did not become manifest to a compensable degree within a year after his discharge from service. 38 C.F.R. §§ 3.307, 3.309; see Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). In addition, there is no competent medical evidence that establishes a causal connection between the Veteran's diabetes mellitus disorder, and his military service or claimed Agent Orange or herbicide exposure for that matter. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). This evidentiary deficiency concerning the nexus element is fatal to the claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ('A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.'). While several lay assertions have been submitted by the Veteran asserting that his diabetes mellitus was the result of his military service, mere lay assertions of this purported cause-and-effect relationship do not constitute competent and credible evidence to satisfy this nexus requirement. See Grottveit v. Brown, 5 Vet. App. 91 (1993). Diabetes mellitus, type II, is not a simple medical condition, and as such is not a condition that can be perceived through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Personal knowledge is that which is perceived through the use of the senses.). For the foregoing reasons, the claim for service connection for diabetes must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER New and material evidence has been received to reopen a claim for service connection for a bilateral knee disorder; to that extent, the appeal is granted. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), are applicable to this appeal. As determined previously, the Veteran's claim for service connection for a bilateral knee disorder has been reopened. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. §5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Service treatment records, including examination reports dated in May 1954, November 1957, January 1958, October 1963, January 1965, November 1967, are negative for complaints of knee pain or a diagnosis of a chronic knee disorder. In a March 1969 VA examination, musculoskeletal symptoms were noted as within normal limits. In an August 1988 private evaluation, the Veteran was evaluated for back pain as a result of a lifting injury at work. He also complained of pain radiating down his thigh to his calf and ankle. In a SSA disability benefits form dated in December 1990, the Veteran reported that post-service he worked as a heavy equipment mechanic. His job required lifting crank shafts, reversers, and blocks, as well as carrying approximately 10 feet. The heaviest and most frequently lifted were items weighting approximately 125 pounds. In a June 1992 private evaluation, the Veteran complained that his right knee bothers him. Upon physical examination, ranges of motion of the bilateral knees were normal. A VA MRI of the left knee dated in February 2008 revealed medical compartment osteoarthritis changes in the bilateral knees. In a July 2010 VA progress note, the Veteran complained of bilateral knee pain. He stated he has had problems "forever." He associated his problem with standing on concrete and going up and down ramps for many years, particularly in the service. He was having problems with climbing and descending steps, nighttime pain, and mostly persistent pain. After a physical examination, the diagnosis was osteoarthritis of the knees. The Veteran submitted lay statements from two fellow servicemembers in August 2010 and from his daughters in August 2010 asserting that they remember the Veteran complaining about his knees while on active service. The Board notes that the Veteran has not been afforded a VA examination in order to determine the nature and etiology of his claimed knee disorder. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant's active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); See Charles v. Principi, 16 Vet. App. 370 (2002) (where there is competent evidence of a current disability and evidence indicating an association between the disability and active service, there must be competent evidence addressing whether a nexus exists). Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for a bilateral knee disorder and that further medical examination and opinion in connection with this claim is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain outstanding records of treatment received by the Veteran for the disability at issue from VA and non-VA medical providers. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The Veteran should be afforded a VA examination to determine the etiology of any current knee disorder. All indicated tests and studies are to be performed, and a comprehensive recreational, occupational, and medical history is to be obtained. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on the results of the physical examination and claims file review, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current knee disorder was incurred as a result of active service. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs