Citation Nr: 1320864 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 02-17 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a heart disability, to include hypertension, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for diabetes mellitus type 2, to include as due to Agent Orange exposure. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2001 and August 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in December 2012 for further development. The Board issued a decision denying service connection for a heart disability in February 2006. In July 2008, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. The Board also issued a January 2004 decision in which it denied service connection for diabetes mellitus type 2. In December 2012, the Board re-opened the Veteran's service connection claim for diabetes mellitus type 2 and remanded the underlying issue (as well as entitlement to service connection for a heart disability) for further development. The issue of entitlement to service connection for a heart disability, to include hypertension 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. FINDING OF FACT The evidence does not reasonably show that the Veteran's diagnosed diabetes mellitus had its origins in service, or for many years thereafter, and the Veteran did not serve in the Republic of Vietnam. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1133, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in December 2010 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for diabetes mellitus. Moreover, the post-service evidence does not indicate any current complaints or treatment referable to until many years following separation and there are no lay assertions of continuous symptomatology since active service. Furthermore, the records contain no competent evidence suggesting a causal relationship between the current disability and active service. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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 was incurred in service. 38 C.F.R. § 3.303(d). Service connection for diabetes mellitus type 2 may be established on a presumptive basis for if a Veteran was exposed to an herbicide agent such as Agent Orange during service. 38 C.F.R. §§ 3.307, 3.309. 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. See 38 C.F.R. §§ 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. Notwithstanding the presumptive provisions, service connection for claimed residuals of herbicide exposure also may be established by showing that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994)(citing 38 U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303). The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute "service in the Republic of Vietnam" for the purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a Veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In the present case, the Veteran's service treatment records fail to show any findings attributed to diabetes mellitus. His December 1985 separation examination showed a normal endocrine system. VA treatment records reflect that the Veteran was diagnosed with diabetes in September 2000 (14 years after service). He has not claimed, and the record does not indicate, that his diabetes mellitus, type II, had its onset during his active service or to a compensable degree within one year of service. Accordingly, the central issue for consideration is whether the Veteran was exposed to Agent Orange during service. The Veteran's service personnel records do not indicate that he served in the Republic of Vietnam while on active duty. The regulations regarding presumptive service connection as a result of herbicide exposure are explicit. The Veteran must have service in the Republic of Vietnam between January 9, 1962 and May 7, 1975 to be afforded the presumption of herbicide exposure. Though the Veteran contends his exposure occurred during an airlift operation, there are no indications in the service personnel records that he participated in such operations during service in areas requisite to invoking the applicable presumption, and no evidence indicating that he was stationed in Vietnam such as would warrant a requisite finding that he was exposed to Agent Orange. The Veteran has argued that he was exposed to Agent Orange during his service in Thailand. Service department records show that he served in Thailand from March 1972 to March 1973. However, service department records weigh against a finding that the Veteran was exposed to Agent Orange while stationed in Thailand. VA Fast Letter 09-20 (May 6, 2009) provides information regarding developing evidence of herbicide exposure in claims from Veterans with Thailand service during the Vietnam Era and provides updated information concerning herbicide use in Thailand during the Vietnam era. These materials provide that if a claimed herbicide exposure cannot be resolved based on the information contained in the accompanying memorandum, then follow-up inquiries are now being sent to the Joint Services Records Research Center (JSRRC). The memorandum reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. This memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. While the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. Further, the Memorandum provides that if the Veteran's claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. VA Fast Letter 09-20 Memorandum. In addition, a recent directive from the VA Office of Public Health and Environmental Hazards indicates that United States Army Veterans who provided perimeter security on Royal Thai Air Force bases anytime between February 28, 1961 and May 7, 1965, may have been exposed to herbicides and may qualify for VA benefits. The directive references a recently declassified 1973 Department of Defense report entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand" which states that there was significant use of herbicides on the fenced-in perimeters of certain Thai military bases to remove foliage that provided cover for enemy forces. VA has determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. The above materials reflect that the Veteran did not serve in Thailand during the periods in which Agent Orange exposure was possible, and that there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Thus, in this case, there is an inadequate factual foundation upon which to conclude that the Veteran was exposed to Agent Orange based upon service in Thailand. VA Fast Letter 09-20 Memorandum. For the reasons set forth above, the persuasive evidence does not show that the Veteran met the criteria for presumptive Agent Orange exposure based on his documented service in Thailand. 38 C.F.R. § 3.307(a)(6)(iii), VA Fast Letter 09-20 (May 6, 2009). Nonetheless, the Board must consider whether service connection for diabetes is warranted on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the RO sent the Veteran a December 2010 correspondence requesting evidence of herbicide exposure. The Veteran submitted numerous statements in support of the claim (VA Form 21-4138), but he failed to provide evidence of herbicide exposure. The Board recognizes that the Veteran's DD214 states "Airlift of Hazardous Materials (Initial), 30 hrs., February 1979." However, a reference to hazardous materials is insufficient to establish that the Veteran was exposed to Agent Orange. Additionally, the Board notes that the DD214 states that this airlifting of hazardous materials occurred in February 1979 (6 years after the Veteran served in Thailand). In December 2010, the RO contacted the National Personnel Records Center (NPRC) with a request to furnish any documents showing exposure to herbicides. The NPRC responded that it had no records reflecting exposure to herbicides. Because the evidence of record does not demonstrate active service in the Republic of Vietnam, the presumptive provisions of 38 C.F.R. § 3.307(a)(6)(iii) (2012) are not applicable here. Thus, even though diabetes mellitus is among the presumptive diseases associated with herbicide exposure under 38 C.F.R. § 3.307(e), a grant of service connection is not possible on this basis. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, in the present case, the Veteran has not presented any independent competent evidence to show that his currently diagnosed diabetes mellitus, type II is causally related in in-service herbicide exposure. In conclusion, the evidence does not support a grant of service connection, on either a direct or presumptive basis, for diabetes mellitus, type II. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for diabetes mellitus type 2 is denied. REMAND As noted in the introduction, in February 2006, the Board denied the Veteran's claim for service connection for a heart disability, to include hypertension. The decision was vacated by the Court because the Board failed to explain the adequacy of an August 2005 VA examination report. In February 2010, the Board remanded the issue, in part, so that the Veteran could undergo another VA examination. The Veteran underwent an examination in May 2010. The May 2010 VA examiner found opined that the Veteran's current heart disability is less likely than not related to service. For the most part, the examination report appears thorough. However, there are some areas that require clarification. For example, the examiner notes that the service treatment reports reference a possible congenital anomaly such as Tetrology of Felot and other life threatening anomalies. He stated that at the top of the report, it stated "Cyanosis, CHF, and CARDIOMEGALY AND AT A YOUNG AGE." [Emphasis in original]. He then stated that this is not a report of this Veteran because at the time, he was in his 20s and very active, with no history of congenital heart condition and corrective surgery. The Board is not entirely clear as to what report the examiner is referring, or what the examiner means when he stated that this is not a report of this Veteran. The Board cannot find any report with the quoted language at the top. It notes that a February 1976 report lists a provisional diagnosis of "Cyanotic in CHF." Written underneath this diagnosis appears to be the words "2 mo. old." However, the "2 mo. old" part has been crossed out. In any case, the Board notes that there is evidence that the Veteran's heart disability may predate service; accordingly an opinion should be offered as to whether a cardiovascular disability did preexist service and if so, whether it was aggravated by service. The May 2010 examiner also stated that "in service blood pressure readings did not indicate the presence of a heart disability to include hypertension during active service." However, the Board notes that an undated treatment report reflects that the Veteran presented for a routine dental examination in no acute distress. His seated blood pressure was 150/110. He was supposed to be evaluated for possible hypertension, and the provisional diagnosis was listed as hypertension. The Board notes that the treatment report is typewritten, with the exception of the blood pressure reading, which is handwritten. The Board also notes that the Veteran submitted a copy of a December 20, 1985 dental report with the words "Hypertension 150/110" handwritten on it. However, on the original document, there is no mention of hypertension or any blood pressure reading. In fact, another dental record (also dated December 20, 1985) reflects that the blood pressure was 138/86. Consequently, the 150/110 blood pressure reading and mention of hypertension is called into question; and the RO has rightfully questioned whether it was the Veteran who altered the document. Nonetheless, the Board does note that a number of the in-service blood pressure readings are elevated. His blood pressure readings were as follows: October 1972 110/80 September 1980 124/78 November 1976 136/90 May 1982 120/78 March 1977 120/80 June 1983 132/70 October 1977 118/80 July 1983 132/70 August 1978 134/88 October 1983 142/88 July 1979 128/90 December 1983 134/86 July 1979 140/84 October 1984 150/100? September 1979 140/76 March 1985 150/100 September 1979 110/74 May 1985 108/74 - 144/100 October 1979 124/80 October 1985 140/86 January 1980 126/88 December 1985 138/86 September 1980 118/80 Several of these blood pressure readings (most notably the 128/90 reading of July 1979; the 150/100 readings of October 1984 and March 1985; and the May 1985 hospital report noting blood pressure readings as high as 144/100) reflect elevated diastolic levels. The May 2010 VA examiner failed to note the provisional diagnosis of hypertension and the elevated in-service blood pressure readings. Moreover, he failed to render an opinion as to whether the Veteran's disability pre-existed service. Consequently, the Board finds that a remand is necessary so that the Veteran can undergo another VA examination. The examiner should address the elevated blood pressure readings in the service treatment records; the provisional diagnosis of hypertension; the January 1976 chest x-ray that was interpreted as showing the possibility of cyanotic congenital heart disease; the February 1976 chest x-ray report noted marked cardiomegaly; and the December 1983 treatment record that indicates that the Veteran reported having a "murmur for years." The Board recognizes that the Veteran is frustrated by the continued adjudication of the claim. However, the evidence still does not show a chronic heart disability, to include hypertension, in service or within one year of service. There also is no competent medical nexus linking his heart disability to service. Consequently, there is insufficient evidence for the Board to grant the claim. The only options left for the Board are to remand the claim or to deny it. Given that the Court vacated the Board's previous denial based on the inadequacy of a VA examination, the Board finds that a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA examination for the purpose of determining the nature, etiology and severity of the heart disability, to include hypertension. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any disability began during or is causally related to service. The examiner should comment on the elevated blood pressure readings and the provisional diagnosis of hypertension in the service treatment records; the January 1976 chest x-ray that was interpreted as showing the possibility of cyanotic congenital heart disease; the February 1976 chest x-ray report noted marked cardiomegaly; and the December 1983 treatment record that indicates that the Veteran reported having a "murmur for years." Additionally, the examiner should render an additional opinion addressing: (a) whether any heart disability, to include hypertension clearly and unmistakably preexisted the Veteran's entrance into service; if so, (b) whether any such disorder increased in severity during service; and, if so, (c) whether such increase in severity represented the natural progression of the condition, or was beyond the natural progress of the condition (representing a permanent worsening of such disorder). The examiner should provide a rationale for the opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner must provide a rationale as to why this is so, and must indicate what if any additional evidence would permit an opinion to be made. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs