Citation Nr: 1322545 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-32 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, with associated complications, to include as a result of herbicide exposure. 2. Entitlement to service connection for a left foot fungus, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant served on active duty from March 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for diabetes mellitus, type II, with associated complications and left foot fungus, both to include as a result of herbicide exposure. The Board remanded the instant claims in May 2011 and August 2012 for further development. FINDINGS OF FACT 1. The evidence of record does not show that the appellant had active service in the Republic of Vietnam, that he served aboard a ship that docked in Vietnam, or that he was ever on the landmass or inland waters of Vietnam during the Vietnam era. 2. There is no competent and credible evidence establishing that the appellant was actually exposed to herbicides during his service. 3. The competent evidence of record does not show diabetes mellitus, type II or left foot fungus in service or for many years thereafter; and, there is no competent evidence suggesting the disorders are related to service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II with associated complications, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service, including from herbicide exposure in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2012). 2. Left foot fungus was not incurred in or aggravated by active service, including from herbicide exposure in Vietnam. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.App. 112 (2004); Quartuccio v. Principi, 16 Vet.App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the appellant nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The appellant was notified via letter dated in March 2006 of the criteria for establishing service connection, herbicide exposure, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2006. Nothing more was required. Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO obtained the appellant's service treatment records and VA treatment records. He submitted private treatment records and personal statements in support of his appeal. The Board has determined a VA examination is not necessary to assess the nature or etiology of the appellant's diabetes mellitus, type II. As the information and evidence of record is sufficient to decide the claim, VA need not conduct an examination with respect to the claim on appeal. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet.App. 79 (2006). Specifically, the evidence does not suggest and the appellant does not contend that he suffered from diabetes during service or within the year following discharge. There is no competent and credible evidence indicating an association between the appellant's diabetes and his military service. Indeed, aside from his alleged exposure to herbicides in service, he has not posited any argument relating his diabetes mellitus to service. Additionally, there is no competent and credible evidence that the appellant was ever physically on land in Vietnam during service or otherwise exposed to herbicides. Therefore, a VA examination is not warranted. Id. As for the appellant's claim for service connection for a left foot fungus, he underwent a VA examination in May 2011 in connection with this claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination was adequate, as it was predicated on a full reading of the appellant's medical records in the claims file. All of the pertinent evidence of record was considered, to include his statements, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. The appellant was provided an opportunity to set forth his contentions during a hearing, and he declined. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist 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 Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where an appellant served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). A claimant 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 claimant was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A claimant is entitled to a presumption of service connection if he is diagnosed with type II diabetes mellitus as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Inland waterways are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. It has been established that some offshore U.S. Navy and Coast Guard ships operated temporarily on Vietnam's inland waterways or docked to the shore; and, certain ships operated primarily on the inland waterways rather than offshore. Veterans who served aboard these ships qualify for the presumption of herbicide exposure. Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" navy because they operated on the blue-colored waters of the open ocean. Although some Blue Water Navy destroyers were involved with enemy interdiction, the majority of those operations were conducted by smaller vessels based along the coast or within the river systems of South Vietnam. These vessels are collectively referred to as the "Brown Water" navy because they operated on the muddy, brown-colored inland waterways of Vietnam. In general, patrolling of close coastal waters and the larger rivers was conducted by 50-foot swift boats while patrolling of smaller rivers and waterways was carried out by 30-foot river patrol boats. See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension Service). Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area. Following these temporary inland waterway operations, destroyers would return to patrolling the offshore gun line or travel farther out to sea for aircraft carrier escort duty. A number of Blue Water Navy amphibious assault and supply vessels also periodically entered inland waterways to deliver troops for combat missions or supplies for units stationed on the rivers. Id. In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy appellant, the evidence must show that the appellant's ship operated temporarily on the inland waterways of Vietnam or that the appellant's ship docked to the shore or a pier. Id. An August 2005 private treatment note indicates that the appellant has a current diagnosis of diabetes, which had its onset in 1987, at the age of 40. As this is a current disability, what remains to be shown is that this condition was incurred in or aggravated by his active service, to include as based on exposure to herbicides. Here, the appellant contends that his diabetes is due to herbicide exposure, which he claims occurred while serving aboard the USS Renshaw. He makes no contention to physically setting foot in Vietnam or that the USS Renshaw docked in Vietnam. He stated that his ship and another ship anchored off shore about 100 yards sometime in 1965 and 1966. At the outset, the Board notes that service in Vietnam coastal waters alone does not entitle a Veteran to presumptive service connection for herbicide-related disabilities. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Regarding the appellant's assertion of inland waterway service, the evidence of record, along with VA-recognized findings, does not support such a conclusion. Deck logs received in December 2011 from the National Archives provide no evidence of "brown water exposure."A memorandum from the Joint Services Records Research Center (JSRRC) states that they cannot verify herbicide exposure for Veterans who served aboard Navy ships during the Vietnam era. They also indicated there is no record of "brown water" service for this vessel. See January 2012 JSRRC response memorandum. Continuously updated non-exhaustive lists of U.S. Navy ships that have operated at some point in the inland waterways of Vietnam or else were moored at some location in the Republic of Vietnam, maintained by VA's Compensation & Pension (C&P) service, also do not corroborate the appellant's claim. The Board finds that the many resources checked by VA do not suggest that the USS Renshaw was ever in inland waterways, making the chance that additional research could substantiate the appellant's claim unlikely. Further, no objective evidence has been submitted by the appellant indicating that the USS Renshaw was ever in inland waterways. With regard to the appellant's lay statement asserting inland waterway service, the Board is not obligated to accept as fact statements made regarding non-medical activities, such as where the appellant was stationed at any given time. Compare Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) with Bardwell v. Shinseki, 24 Vet.App. 36 (2010). The appellant specifically stated that he was anchored offshore with another ship (ship's name not provided) in 1965 and 1966 (dates not provided). This alone is not sufficient evidence to indicate that the USS Renshaw was ever located in inland waters during the period of time the appellant was stationed on this vessel. Additionally, the Board remanded the instant claim in August 2012 for further development. At that time, it was noted that appellant's service personnel records showed he served aboard the USS Twining from May 1964 to September 1964. Additional research was done to determine if this vessel moved through inland waterways of the Republic of Vietnam during that time period. A memorandum was received from JSRRC in April 2013 indicating that the USS Twining was not recorded as ever having served in Vietnamese waters. Therefore, the evidence does not indicate that the appellant was exposed to any herbicides during service. The fact that the appellant is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, the appellant was not diagnosed with diabetes until 1987, approximately 20 years after separation from service. The record does not include any medical opinion suggesting his diabetes arose during service, nor does the appellant contend such. Service treatment records are entirely silent for any complaints, findings, or treatment for diabetes mellitus. None of the medical records after service provided a nexus between the appellant's diabetes mellitus, type II and his active duty service. Therefore, the appellant's claim for service connection for diabetes mellitus, type II and its related complications must be denied on a direct basis, in addition to on a presumptive basis as a chronic condition pursuant to 38 C.F.R. § 3.309(a). After careful review of the medical and lay evidence of record and the pertinent law and regulations, the Board finds that there is no competent evidence that the Veteran was exposed to herbicides during his service. The presumption of service connection thereby does not attach. The Veteran does not contend, and the evidence does not show, that his diabetes arose during service or within one year following discharge from service. Moreover, there is no competent evidence linking his diabetes to service and no competent evidence establishing that the Veteran was actually exposed to herbicides during his service. His assertion of exposure is outweighed by the evidence discussed above, which does not establish exposure. As such, service connection for type II diabetes mellitus is not warranted, and the claim must be denied. As for the claim for service connection for left foot fungus, that claim must also fail. The Board notes that the appellant has made his claim for service connection for left foot fungus on a direct basis, and also as a result of herbicide exposure. At the outset, it has already been established that the appellant was not exposed to herbicides during his active naval service. Moreover, foot fungus is not a presumptive disease. Again, the presumption of service connection does not attach. Therefore, service connection for a left foot fungus on a presumptive basis is not warranted. Further, as it relates to service connection on a direct basis, the appellant contends that he had left foot fungus in service. He maintains that he was treated for that fungus with an acid in service and that the fungus never completely resolved. Service treatment records are devoid of findings, treatment, or diagnosis of a foot fungus in service. The Board notes that the appellant is competent to attest to symptoms in service which are readily observable to a lay person. See 38 U.S.C.A. § 1154(a); Washington v. Nicholoson, 19 Vet.App. 362 (2005). He has asserted that he had a fungal infection of his left foot in service. The medical evidence of record since service shows VA and private treatment for plantar warts and calluses of the bilateral feet. Therefore, the Board remanded the instant claim for a medical examination and opinion. Pursuant to the Board's remand in May 2011, the appellant underwent a VA dermatology examination that same month. He gave a history of being treated with an acid for his foot fungus in service. Thereafter, he stated that he was told to use an over-the-counter medication. He also related that his feet would get really dry and crack. His toenails would fall off due to the fungal infections, and he was treated by the hospital corpsman for the fungus. During the examination, the examiner was unable to examine the appellant's left foot because he had undergone a left foot amputation in March 2010. The diagnosis was by history, bilateral foot fungal infections, status post bilateral below the knee amputations. The examiner opined that the appellant's history of bilateral foot fungal infections to include plantar warts and calluses was less likely as not related to his military service. The examiner stated he did review the appellant's claims file and according to those records, he was not seen in service for foot fungal infections. The examiner was unable to find any continuity of care for 30+ years in the medical records. According to medical literature, many troops were unable to get dry for days (the appellant denied having wet feet), opportunities for bathing were infrequent, and skin hygiene was poor. Bacterial and fungal infections of the feet were a major cause of temporary disability. However, the examiner was unable to find anywhere in the claims file where the appellant was treated for foot fungal infections in service. In 1999, he was seen for fungal infections, and in 2004, for ulcer debridement. According to the medical literature, diabetes mellitus, type II can cause fungal infections of the nails of the feet. It was noted that the appellant had diabetes mellitus since age 40, at that time, for approximately 25 years. Additionally, the examiner stated that since the appellant had bilateral below-the-knee amputations, he did not, at the time of the examination, have a current fungal infection. Because there were no feet to examine, the examiner could not provide a fully detailed description of pathology. He was unable to determine the nature or etiology of any skin disorder because he had no feet to examine. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the appellant had a left below-the-knee amputation in 2010, after he filed the claim for a left foot fungus in 2006. (He had a right below-the-knee amputation in 2004.) The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The appellant is competent to state that he had foot complaints in service. However, he is not able to diagnose the condition. His lay testimony describing his symptoms in service have not been later diagnosed by a medical professional who has established a nexus between that diagnosis and his service. He has been diagnosed with plantar warts and calluses, however, no foot fungus has been established prior to 1999, which was 32 years after service. Additionally, no medical personnel has provided a nexus between that diagnosed foot fungus and an event in service. In fact, only one examiner has provided a possible etiology of the left foot fungus. That examiner, in 2013, has indicated that the appellant has had diabetes for 25 years and has indicated that diabetes mellitus, type II can cause fungal infections of the nails of the feet. As the appellant has since sustained a below-the-knee amputation, no etiology of any problems with the feet can be ascertained. Since there is no competent medical evidence of record linking left foot fungus to the appellant's service, service connection for left foot fungus on a direct basis is not warranted, and the claim must be denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) ; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for diabetes mellitus, type II, with associated complications, to include as a result of herbicide exposure is denied. Service connection for fungus of the left foot, to include as a result of herbicide exposure, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs