Citation Nr: 1320783 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-34 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for cysts of the kidneys and the back. 3. Entitlement to service connection for thyroid cancer. 4. Entitlement to service connection for a heart condition, claimed as mitral valve prolapse. 5. Entitlement to service connection for peripheral neuropathy of the left upper extremity. 6. Entitlement to service connection for peripheral neuropathy of the right upper extremity. 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 8. Entitlement to service connection for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the issues on appeal. In May 2013, the Veteran testified before the Board at a hearing held via videoconference. Following the hearing, the Veteran submitted additional evidence with a waiver of original jurisdiction. The additional evidence contains a new claim for service connection for posttraumatic stress disorder (PTSD). The Board refers that claim to the RO for further development. 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). FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam or in the inland waterways of Vietnam. 2. The Veteran's diabetes mellitus first manifested many years after his separation from service and is not related to his service or to any incident therein, and did not manifest within one year following his separation from service. 3. The Veteran's cysts of the kidneys and back first manifested many years after his separation from service and are not related to his service or to any incident therein. 4. The Veteran's thyroid cancer first manifested many years after his separation from service and is not related to his service or to any incident therein, and a malignant tumor did not manifest within one year following separation from service. 5. The Veteran's heart condition, claimed as mitral valve prolapse, first manifested many years after his separation from service and is not related to his service or to any incident therein. 6. The Veteran's peripheral neuropathy of the left upper extremity first manifested many years after his separation from service and is not related to his service or to any incident therein, and acute or subacute peripheral neuropathy did not manifest within one year of the last date of exposure to herbicides. 7. The Veteran's peripheral neuropathy of the right upper extremity first manifested many years after his separation from service and is not related to his service or to any incident therein, and acute or subacute peripheral neuropathy did not manifest within one year of the last date of exposure to herbicides. 8. The Veteran's peripheral neuropathy of the left lower extremity first manifested many years after his separation from service and is not related to his service or to any incident therein, and acute or subacute peripheral neuropathy did not manifest within one year of the last date of exposure to herbicides. 9. The Veteran's peripheral neuropathy of the right lower extremity first manifested many years after his separation from service and is not related to his service or to any incident therein, and acute or subacute peripheral neuropathy did not manifest within one year of the last date of exposure to herbicides. CONCLUSIONS OF LAW 1. The Veteran's diabetes mellitus was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran's cysts of the kidneys and liver were not incurred in or aggravated by the Veteran's active service, nor may they be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. The Veteran's thyroid cancer was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 4. The Veteran's heart condition was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 5. The Veteran's peripheral neuropathy of the left upper extremity was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 6. The Veteran's peripheral neuropathy of the right upper extremity was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 7. The Veteran's peripheral neuropathy of the left lower extremity was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 8. The Veteran's peripheral neuropathy of the right lower extremity was not incurred in or aggravated by the Veteran's active service, nor may it be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (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); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. In this regard, a July 2011 notice, sent prior to the initial unfavorable RO decision issued in July 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. In June 2011, the Veteran was sent notice of the need to demonstrate that he served in the inland waterways of Vietnam or stepped foot on the landmass of Vietnam. Relevant to the duty to assist, the Veteran's service treatment records and service personnel records, as well as VA and private treatment records, have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's Virtual VA treatment records. The Veteran was afforded a VA examination in July 2011 to determine whether he suffered from diabetes and any diabetic residuals. The Board notes that a VA opinion as to the etiology of his claimed conditions has not been obtained. However, as will be discussed below, the competent, credible, and probative evidence of record fails to demonstrate that the Veteran served in Vietnam during the Vietnam War, which is the primary basis of his claims for service connection. Moreover, as will be discussed below, there is no evidence of any complaints, treatment, findings, or diagnoses referable to diabetes mellitus, cysts of the kidney or back, thyroid problems, heart problems, or neurological problems, during service. Additionally, the first evidence of a diagnosis of diabetes is dated in 1996, and the other disabilities on appeal were diagnosed subsequently. In that regard, the Veteran has not alleged a continuity of symptomatology since service; rather, he has contended that he is entitled to presumptive service connection based on exposure to herbicides, and that all of his other disorders stem from his exposure to herbicides, or are due to his diabetes mellitus; however, there is no evidence that he was exposed to herbicides, to include Agent Orange. Lastly, the Veteran has not claimed any condition that has been shown to have an etiological relationship to asbestos, and has provided no credible or probative statements, lay or medical, explaining the relationship of the conditions to asbestos exposure. Therefore, even if there was exposure to asbestos, the Board finds that there is no indication that the issues on appeal may be associated with the Veteran's military service. Thus, a remand for examinations and/or opinions is not necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal and inquired as to any outstanding evidence. And, the Veteran volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his disabilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include diabetes mellitus, calculi of the kidney, and malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that his diabetes mellitus, cysts of the kidneys and back, thyroid cancer, heart condition, and peripheral neuropathy of the upper and lower extremities were caused or aggravated by his service, to include as due to herbicide exposure. He contends that although he did not step foot on the landmass of Vietnam, and did not travel in the inland waterways of Vietnam, he did drink filtered sea water that was contaminated with herbicides. He also contends that he would board destroyer boats that had returned from Vietnam to his ship and had drunk water while aboard. Lastly, the Veteran contends that his conditions on appeal are due to asbestos exposure in service. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). First, the Board finds that the Veteran did not have the necessary service in order to receive presumptive service connection for any of the claims on appeal. Specifically, his service aboard the USS Prairie constitutes "blue water" service, rather than service in the inland waterways. In May 2011, the National Personnel Records Center stated that it could not determine whether the Veteran had service in the Republic of Vietnam, but that the USS Prairie had service in the official waters of Vietnam from March 16, 1973, to March 17, 1973. In June 2012, the Joint Services Records Research Center responded to the RO that the USS Prairie arrived in Subic Bay, Republic of the Philippines on March 10, 1973, then departed for the Anzuk Naval Base in Singapore on March 14, 1973, arriving in Singapore on March 19, 1973. The ship made port calls in Kaohsiung, Taiwan, Hong Kong, and Yokosuka. A review of the deck logs concurred with that history and did not reference the Republic of Vietnam. The Veteran has submitted reference materials that list the USS Prairie was a "blue water" navy ship. In light of such verification, the Board finds that the weight of the evidence is against a finding that the Veteran had service on the landmass of Vietnam or in the inland waterways. Thus, the Veteran is not afforded presumptive service connection for any of his claims based upon herbicide exposure. In finding such, the Board has considered the articles submitted by the Veteran stating that there was evidence that sea water off of the coast of Vietnam contaminated with herbicides caused diseases and disabilities in Veteran's with blue water service. However, the evidence does not show that the Veteran served off of the coast of Vietnam, as he contends. While he contends that he was so near the landmass of Vietnam that he could see land, and drank water off of destroyers returning from Vietnam, the record instead shows that his ship was in the official waters of Vietnam for one day while traveling to Singapore, rather than anywhere near the coastline, or in an estuary or was anchored. Moreover, the findings in those articles have not been adopted by the VA and are thus not considerations when determining presumptive service connection, which is specifically outlined by regulation. Nor have they been specifically linked to the Veteran by a medical professional. Despite the above, the Veteran is not precluded from establishing service connection with proof of actual direct causation from exposure from an herbicide agent or other link to service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The service treatment records are negative for any indication of diabetes mellitus or an endocrine disorder, a kidney disorder, reference to any complaints or abnormality of the thyroid or heart, or any neurological signs or symptoms. The records do document that the Veteran had a kidney infection in 1965, prior to enlistment in service, but do not demonstrate any kidney infection while in service. Moreover, the first diagnosis of diabetes mellitus is not until 1996, over 20 years following service separation, and the other claimed disabilities were diagnosed in the 2000s, many years following separation from service. Therefore, there is a lack of chronicity in service or showing of continuous symptoms since service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection). Moreover, there is no competent medical opinion relating the claimed conditions directly to service, including any scientific research or medical treatises relating the Veteran's specifically diagnosed conditions with herbicide exposure. Accordingly, service connection for diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities must be denied. The Board also finds that service connection for these conditions based upon asbestos exposure is not warranted. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis (IPF), or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty v. Brown, 4 Vet. App. 428, 432 (1993). M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. In this case, diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities are not diseases that have been medically associated with asbestos exposure. The Veteran has not submitted any statements, medical opinions, or medical literature to support his contention that these condition were due to asbestos exposure other than a general statement that such is the case. Thus, there is a complete absence of evidence to demonstrate that the claimed conditions have any association with asbestos exposure, despite if such exposure occurred in light of his Navy service. Therefore, the Board finds that there is no competent, probative, or persuasive evidence to grant service connection for the claims on appeal on that basis, or to further develop that claim. The Board notes that the Veteran has contended on his own behalf that his diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities are related to his military service, to include due to herbicide exposure and asbestos exposure. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities and any instance of his military service to be complex in nature. See Woehlaert, supra. In this regard, he does not possess the medical knowledge to attribute such disorders to any specific instance of his military service. Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond a Veteran's own conclusory statements regarding causation to establish that the Veteran suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his symptoms related to his diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities including symptoms such as pain, the Board accords his statements regarding the etiology of these disabilities little probative value as he is not competent to opine on such a complex medical question and has only offered conclusory statements regarding such inquiry. Thus, the Board attributes little probative weight to such statements and finds that they are outweighed by the probative evidence of record and VA regulation and case law. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for diabetes mellitus, cysts of the kidney and back, thyroid cancer, a heart disorder, and peripheral neuropathy of the bilateral upper and lower extremities. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for diabetes mellitus is denied. Service connection for cysts of the kidneys and the back is denied. Service connection for thyroid cancer is denied. Service connection for a heart condition, claimed as mitral valve prolapsed, is denied. Service connection for peripheral neuropathy of the left upper extremity is denied. Service connection for peripheral neuropathy of the right upper extremity is denied. Service connection for peripheral neuropathy of the left lower extremity is denied. Service connection for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs