Citation Nr: 1323708 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-13 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus (DMII), including as due to herbicide exposure. 2. Entitlement to service connection for a thyroid condition, including as due to herbicide exposure and/or as secondary to DMII. 3. Entitlement to service connection for hypertension, including as due to herbicide exposure and/or as secondary to DMII. 4. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, including as due to herbicide exposure and/or as secondary to DMII. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969, including service in Korea. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified at a hearing before an RO Decision Review Officer (DRO) in October 2010. A transcript of that hearing is of record. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran operated in or near the area of the Korean demilitarized zone (DMZ) in which herbicides were known to have been applied. 2. The evidence of record does not support a finding that any of the Veteran's claimed disabilities, type II diabetes mellitus, thyroid condition, hypertension, or bilateral peripheral neuropathy of the lower extremities, is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus, including as due to herbicide exposure, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.3.09 (2012). 2. The criteria for service connection for a thyroid condition, including as due to herbicide exposure and/or as secondary to DMII have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.3.09, 3.110 (2012). 3. The criteria for service connection for a hypertension, including as due to herbicide exposure and/or as secondary to DMII have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.3.09, 3.110 (2012). 4. The criteria for service connection for bilateral peripheral neuropathy of the lower extremities, including as due to herbicide exposure and/or as secondary to DMII have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.3.09, 3.110 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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) (2012); 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. Accordingly, 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. 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. The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An October 2008 VCAA letter from the RO informed the Veteran of all elements required by 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-service treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 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 identified private treatment. Moreover, his statements in support of the claim are of record. The Board further acknowledges that to date, VA has neither afforded the Veteran an examination, nor solicited a medical opinion regarding his claimed disabilities on appeal. However, the Board finds that a VA examination or medical opinion is not necessary to satisfy the duty to assist in this case. Under 38 U.S.C.A. § 5103A(d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence to make a decision on the claim. Id. As discussed below, there is no competent and credible evidence of record suggesting that the Veteran incurred any of his claimed disabilities during his service or that any such disability is otherwise associated with his military service. The Veteran himself contended in his September 2008 claim that he was not treated for either of his claimed disabilities during service. Rather, his sole contention is that he developed these claimed disabilities, either on a direct or secondary basis, as a result of herbicide exposure during his service. Where there is no competent or credible evidence of record suggesting that he indeed suffered such exposure, there is no duty to obtain a medical examination or opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeal for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that VA employees have two duties in conducting hearings. 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. During the Veteran's October 2010 DRO hearing, the issues were adequately identified, and the DRO and the Veteran's representatives asked specific questions directed at identifying outstanding evidence that could substantiate his claims, including most especially evidence to support his contention of having been exposed to herbicides during service in Korea. He was asked about his duties and the places he travelled during his service in Korea. In the end he was asked to submit any additional information that he could think of or find with respect to establishing his claim that he was exposed to herbicides during service. As such, the Bryant duties were met. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the Veteran's 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). II. Service Connection The Veteran seeks service connection for his claimed disabilities on appeal as either directly or secondarily related to exposure to herbicides during his service in Korea. He contends that he was exposed to herbicides while serving along Korean DMZ between December 1967 and December 1968. A. Governing Law and Regulations 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Additionally, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2012). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the non-service-connected disease or injury. See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. See 38 C.F.R. § 3.310(b) (2012). Service connection may also be established on a legal presumption based on herbicide exposure where a Veteran served on active duty "between April 1, 1968 and August 31, 1971 in a unit that, as determined by the Department of Defense (DoD) operated in or near the Korean DMZ in an area which herbicides are known to have been applied during that period..." See 38 C.F.R. §§ 3.307(a)(6)(iv), 3.184(c)(2) (2012). Such a Veteran is presumed to have been exposed to herbicide agent (Agent Orange) during service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See id.; see also McCartt v. West, 12 Vet. App. 164, 166 (1999). The DoD has identified specific units that served in areas along the Korean DMZ where herbicides were used between April 1968 and August 1971. See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.p. If a claimant's unit has not been determined to have served along the portion of the DMZ where herbicides were used, VA's Adjudication Procedure Manual provides that a verification request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) to determine the location of the Veteran's unit and whether exposure to herbicides can be verified. See id. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis Although the evidence of record reveals that the Veteran has been diagnosed with DMII, peripheral neuropathy of the lower extremities, hypertension and hypothyroidism, before the Board can consider whether these disabilities may be directly or secondarily related to service, it must determine whether the evidence can establish that the Veteran was exposed to herbicides during service, as his sole contention has been that these disabilities were incurred as a result of herbicide exposure. A review of the Veteran's service personnel records shows that he was assigned to serve with the Headquarters unit of the 2nd Brigade of the 7th Infantry Division in Korea from December 1967 to December 1968. His noted principal duty was "clerk typist." Additional records submitted by the Veteran reveal that he was a recipient of the Bayonet Badge for completing DMZ missions. The record contains three black and white photographs submitted by the Veteran. One photograph shows servicemen standing near a sign reading "Military Demarcation Line." The second photograph shows some tress along a path or road with a sign written in Korean. The third photograph appears to show Korean civilians standing with one or more servicemen near a sign reading, "Bullmoose Pass." In an October 2008 statement, the Veteran reported being assigned to guard duty, and noted that his duty station was close to the DMZ. He indicated that his job duties also required him to deliver orders to other units at the DMZ. He reported taking walks around his camp facility and that he did a lot of physical training in and around his camp. He reported noticing that the vegetation on the DMZ next to his camp was dead. He noted that afterwards, he was informed that the vegetation around the zone and camp had been sprayed with Agent Orange numerous times. During his October 2010 DRO hearing, the Veteran presented photographs that purportedly pertained to his service in Korea. His representative noted that these were the same photographs that had already been submitted. The Veteran indicated that one photograph showed a road along the DMZ with sparse vegetation or no vegetation at all. He reported that the picture was taken along the road toward a Korean city, but that he did not know spelling of the name of the city. He noted that his job during service was a distribution clerk, but that he accompanied his colonel as an extra security force during the colonel's official business. He reported that he was stationed within approximately one mile of the DMZ and that he was assigned to take orders to various units stationed along the DMZ. He reported seeing an aircraft fly overhead at one point that he believed was clearing vegetation, but indicated that he did not actually see herbicide being sprayed from the plane. With respect to his earlier statement, wherein he indicated that he was told that Agent Orange was used to clear vegetation along the DMZ, in response to questioning, the Veteran clarified that he was informed about herbicide use in Korea by VA personnel some time after he returned home from service. The Veteran also acknowledged during his hearing that he was not assigned to temporary duty or otherwise assigned to serve with any other unit during his service in Korea. He reiterated, however, that when any high ranking officer came to the area, he was usually assigned to accompany them as a guard or rifleman. He noted that while he did some travelling up and down the DMZ, he did not know how far he travelled other than to deliver orders to other infantry headquarters. After a thorough review of the evidence of record, the Board finds that the evidence does not show that the Veteran had service along a portion of the Korean DMZ were herbicide agents were known to have been used. In this regard, the Veteran's assigned unit was not one of the units identified by the DoD as having been in an area where herbicides were known to have been used. See VA's Adjudication Procedure Manual. Moreover, although the record shows that the RO submitted a request to the JSRRC to verify whether the Veteran was exposed to herbicides as he alleged, a March 2009 response indicated that there was no records of exposure to herbicides. Notably, the RO's request included the Veteran's reported contentions of having traveled near the DMZ while performing guard duty, of completing physical training near the DMZ, and of delivering orders to other units along the DMZ. While the record clearly establishes that the Veteran at least travelled near and visited portions of the DMZ during his service, there is no clear evidence to indicate that he served or travelled near that portion of the DMZ where herbicides were used. Moreover, although he submitted photographs which purportedly showed results of some sort of defoliation and evidence of his travel along part of the DMZ, there is no way for the Board to verify the location of any of his photographs along the DMZ or to verify whether the photographs indeed place the Veteran near the DMZ. Even if the Board were to conclude that the photographs were indeed taken by the Veteran and that the photographs showed evidence of defoliation, there is simply no clear evidence to show that any such defoliation took place as a result of an herbicide agent. Most notably, the photographs add no probative value in establishing whether or not the Veteran was in that area of the DMZ where herbicides were known to have been used. While sympathetic to the fact that the Veteran had service that placed him near the Korean DMZ, and while sympathetic to his belief that he must have been exposed to herbicides during such service, the Board is entirely bound by the governing regulations in this appeal, and the relevant regulations preclude the Board from awarding the presumption of herbicide exposure to a veteran who has not been shown, through service department verification, to have actually operated in or near an area along the Korean DMZ where herbicides are known to have been applied. The Board has also considered whether the Veteran may be entitled to service connection under general service connection principles as identified in Davidson, supra. A review of his service treatment records, however, reveals no indication that he was treated for diabetes, peripheral neuropathy, a thyroid condition, or hypertension during his service. To the contrary, the Veteran's September 1969 separation examination and associated report of medical history, show normal findings during clinical evaluation. Moreover, the Veteran has made no contention indicating that he suffered from any of his claimed disabilities during service or that he incurred any disability as a result of his service, other than by means of exposure to herbicide agent. As noted, his September 2008 claim affirmed that he was not treated for any claimed disability during service. Moreover, where service connection cannot be granted for DMII, there is no basis to award service connection for any claimed associated disability on a secondary basis. See Wallin, supra. Accordingly, the Board finds that the evidence of record fails to show that either of the Veteran's claimed disabilities of DMII, thyroid condition, hypertension, or bilateral peripheral neuropathy of the lower extremities had its onset during active service or is otherwise related to service, to include as due to herbicide exposure. Because the Veteran is not professionally qualified to provide a medical etiology regarding the onset of either of his claimed disabilities, and since there is no competent or credible evidence of record showing that any claimed disabilities had its onset during service or is otherwise related to any in-service disease, event, or injury, to include herbicide exposure, service connection must be denied. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for DMII, for a thyroid condition, for hypertension, and for bilateral peripheral neuropathy of the lower extremities. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claims for service connection for DMII, for a thyroid condition, for hypertension, and for bilateral peripheral neuropathy of the lower extremities are denied. ORDER Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for a thyroid condition is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs