Citation Nr: 1325226 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-04 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for a bilateral eye disability. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for callused and cracked feet. 5. Entitlement to service connection for a bilateral knee disability. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1963 to March 1967. Service in the Republic of Vietnam is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Board remanded the Veteran's claims for further development. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. The issue of entitlement to service connection for hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for erectile dysfunction, a bilateral knee disability, bilateral hearing loss, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, he had service in the Republic of Viet Nam and currently has diabetes mellitus. 2. The Veteran has cataracts that were caused by his diabetes mellitus. CONCLUSIONS OF LAW 1. Diabetes mellitus is presumed to have been incurred during service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2012). 2. The criteria for service connection for bilateral cataracts are met. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claim for service connection for diabetes mellitus, type II, and a bilateral eye disability, to include as secondary to his service-connected diabetes mellitus, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Legal Criteria-Service Connection A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For certain chronic disorders, including diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2023). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Exposure to Agent Orange Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, including Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341 -346 (1994); 61 Fed. Reg. 41442 -41449 and 57586-57589 (1996); 67 Fed. Reg. 42600 - 42608 (2002); 68 Fed. Reg. 27630 -27641 (2003); 72 Fed. Reg. 32395 -32407 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). III. Analysis A. Diabetes Mellitus As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In a December 2005 Physician's Statement, Dr. D.J.G., a private physician, reported that the Veteran had been diagnosed with diabetes mellitus, type II. Subsequent treatment records from Dr. D.J.G. and St Joseph's Chandler Medical Group (SJGCMG) also included a diagnosis of diabetes mellitus. As a result, Hickson element (1) has been met. With respect to in-service disease, the Veteran's service treatment records are negative for any complaints, treatment, or diagnoses relating to diabetes mellitus. Diabetes mellitus was not in fact diagnosed during service or in the one year presumptive period after service. The thrust of the Veteran's argument is that he was exposed to herbicides in connection with his military service. The record shows that the Veteran was awarded the Vietnam Service Medal. He served in the United States Air Force as a loadmaster. The Veteran's DD Form 214 reflects that the Veteran had a military occupation specialty of Aircraft Loadmaster. The Veteran has submitted a copy of a July 1966, DD Form 114, Military Pay Order, that authorized hazardous duty for what was certified to be "Combat Flying" for the period from June 17, 1966 to June 18, 1966. The certificate reported that the Veteran flew on two missions. An August 1966 Military Pay Order showed that he received adjusted pay for certified "Combat Flying" for the period dated from July 17 to July 18, 1966 and noted that he flew on two missions. In November 1966, he received adjusted pay in relation to certified "Combat Flying" for October 17, 1966, which recorded that the Veteran flew on two missions. He also submitted flight logs that revealed that he served with the 15th Military Airlift Squadron (MAC) that was assigned to the 63rd Military Airlift Wing at Hunter Air Force Base, Georgia. The flight logs noted that he had combat time in June, July, and October 1966 while flying on a C-124. In May 2007, the Veteran submitted photographs and an article from the internet relating to the use of C-124s. The article reported that as events in Southeast Asia led to an increase in the American presence there, the C-124s were soon heavily involved in airlift operations carrying cargo from the United States and Hawaii to Vietnam and Thailand. The Veteran noted that he flew with the plane to ensure that it would take off, fly, and land safely. He loaded up the plane and inspected the cargo on the ground. The C-124 carried oversized cargo such as jeeps, trucks, fixed wing aircraft, helicopters, bulldozers, troops, etc. The plane had ramps located in the front that made it possible to back the trucks, jeeps, etc into the plane. In a May 2007 Notice of Disagreement (NOD), the Veteran reiterated that part of his job as loadmaster on the C-124 was to load the plane in a safe and timely manner. In order to load the plane, he had to get on the ground in Vietnam and inspect the cargo that came from all over Vietnam. He indicated that from June 15 to June 18, 1966, he stayed in temporary quarters in Vietnam, while the engine was replaced on the plane. He alleged that during the October 17, 1966 mission, they were shot at during lift off while leaving DaNang. On his February 2009 Form 9, the Veteran indicated that he landed in Saigon, DaNang, Tan Son Nuht, and Bien Hoa. He reported that the incident that required the engine to be changed took place in Saigon. The National Personnel Records Center (NPRC) in May 2006 indicated that there were no records of the Veteran's exposure to herbicide. NPRC also found that there was no evidence in the Veterans file to substantiate any service in the Republic of Vietnam. There is no indication they had access to the pay records submitted by the Veteran. Pursuant to the February 2013 Board remand, the AMC requested that NPRC furnish the dates of the Veteran's Vietnam service. In March 2013, NPRC reported that they could not determine whether or not the Veteran served in the Republic of Vietnam; however, they furnished copies of pertinent documents or information from the file to assist the Board in making a determination. The pertinent records were comprised of additional service personnel records that included a performance report for the time period from June 1966 to February 1967, which noted his duties as Aircraft Loadmaster. The report showed that the Veteran supervised the loading and unloading of aircraft cargo, passengers, missiles, and vehicles in many types of global missions. Another letter of evaluation for the period from November 1966 to January 1967 indicated that the Veteran was the loadmaster on a C-124 and was responsible for loading, off-loading, and the security of the flight of the cargo while performing airlift and tactical missions throughout North Africa, the Middle East, and Europe, including Berlin. The AMC also requested a copy of the Veteran's pay records. In April 2013, the Defense Finance and Accounting Service (DFAS) responded that the request could not be completed and that all resources through DFAS-Indianapolis and the Federal Records Center had been exhausted and the records were not found. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability. While there is nothing in the record to substantiate the Veteran's claim of service in the Republic of Viet Nam, there is circumstantial evidence supporting the Veteran's claim. Moreover, it is reasonable to conclude that the type of service the Veteran had in the Republic of Viet Nam would not necessarily be verifiable by records from NPRC. The Veteran's statements to the effect that he stopped in Vietnam in order to load the plane and inspect cargo that came from all over Vietnam; that he stayed in temporary quarters in Saigon, Vietnam while the plane engine was repaired; and that he landed in Saigon, DaNang, Tan Son Nuht, and Bien Hoa in Vietnam in connection with missions which took him there, appear to be congruent with the Veteran's MOS and his VSM. See Baldwin, supra. While one performance evaluation listed several places in which the Veteran traveled and did not include Southwest Asia or Vietnam, this evaluation covered a time period that took place after the "Combat Flying" period in question. On the other hand, the evaluation that covered the time period in question simply noted that the Veteran performed global missions. The relevant evaluation detailed the Veteran's duties as a loadmaster, which was consistent with his reports. Accordingly, exposure to Agent Orange is presumed; Hickson element (2) has been satisfied. With respect to element (3), medical nexus, diabetes mellitus is presumed to be service connected when a veteran has had presumed Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2007). There is no medical evidence which serves to rebut that presumption. Element (3), medical nexus, has accordingly been satisfied on a presumptive basis. Service connection for diabetes mellitus Type II is accordingly granted. B. Bilateral Eye Disability The Veteran contends that his current bilateral eye disability is related to service, including conceded herbicide exposure therein. STRs reflect that on several occasions the Veteran was deemed to be medically incapacitated to fly. A November 1963 ophthalmology consultation noted complaints of trouble with reading, but not apparent visual problems were found on examination. On March 1966 annual flight physical report of medical history, the Veteran indicated that he had eye trouble. A clinical evaluation of the eyes was normal. In January 1967, the Veteran had complains of a sensation of "bubbling" in his left eye. He was diagnosed with resolving eosinophilic bronchitis. Four days later, he was completely asymptomatic. On June 1963 enlistment and March 1967 separation examination, a clinical evaluation of the eyes was normal. The Veteran's distance and near vision were reported as 20/20. The separation examination noted that he passed the color vision test. Additionally, his field of vision and intraocular tension were normal. He did not report any eye trouble on his March 1967 discharge report of medical history. The first post service documentation of an eye disability is in May 1986, approximately 19 years after his discharge from service, which showed mild refractive error and presbyopia. See treatment records from Georgia Eye Institute. It was not until February 1994, approximately 27 years after his discharge from service, that the Veteran had complaints of "flashes" and was diagnosed with primary open angle glaucoma (PAOG). In this regard, a lengthy period without evidence of treatment may also be viewed as evidence weighing against the Veteran's claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, on April 2013 VA examination, the examiner found that there was no evidence of any eye disability in service and the Veteran's vision was 20/20 uncorrected in both eyes throughout service. The examiner indicated that glaucoma wasn't diagnosed until 1994 and the Veteran's cataracts were related to his age and diabetes mellitus. There is no competent medical evidence to the contrary. Although the Veteran served in Vietnam and was exposed to herbicides such as Agent Orange, his current eye disabilities are not recognized by VA as having a positive association to such exposure. As such, the presumption of service connection for a current eye disability as a result of herbicide exposure does not apply. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309. Furthermore, there is no competent evidence in the record that suggests a relationship between presumed herbicide exposure and current eye disability. While evidence does not support a finding that chronic eye disability had its onset in service or is otherwise related to active duty, including herbicide exposure, cataracts have been related to his now service-connected diabetes mellitus. Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In support of an eye disability related to his service-connected diabetes mellitus, the Veteran submitted a December 2005 Physician's Statement, in which Dr. D.J.G. reported that the Veteran had visual complications that were directly related to his diabetes mellitus. Additionally, on April 2013 VA examination, the examiner found that the Veteran had age related and diabetic induced cataracts based on the characteristics of their appearance and the duration of his diabetes (2005). All elements supporting a grant of service connected on a secondary basis have been satisfied. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for secondary service connection for a bilateral cataracts have been met. ORDER Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for a bilateral cataracts is granted. REMAND The Veteran contends that his erectile dysfunction and foot calluses were related to service, including exposure to Agent Orange. In light of the above Board decision conceding Agent Orange exposure and granting entitlement to service connection for diabetes mellitus based on such exposure, a VA examination is necessary to determine the nature and etiology of the Veteran's erectile dysfunction and foot calluses. On review of the record, May 2007 treatment records from SJCMG Central Park revealed that the Veteran had calluses on the bottom of his feet; however, there is no medical evidence regarding the etiology of the calluses. Additionally, in support of his claim for erectile dysfunction, the Veteran submitted a December 2005 Physician's Statement, in which Dr. D.J.G. reported that the Veteran had erectile dysfunction that was directly related to his diabetes mellitus. However, the record also includes treatment records from Dr. D.J.G. beginning in February 1997, which included a diagnosis of erectile dysfunction long before the Veteran was diagnosed with diabetes mellitus in 2005. With respect to the question of medical nexus, because the Veteran's erectile dysfunction and foot calluses are not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's claims on a direct basis. See Combee, 34 F.3d at 1043-44. In regards to the Veteran's foot calluses and erectile dysfunction, the Board finds that there are medical questions presented by this case that are not currently adequately addressed by the evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between the Veteran's diagnosed erectile dysfunction as well as his foot calluses and his military service, in particular the presumed exposure to herbicides during service in Vietnam or, in the alternative, to his service-connected diabetes mellitus. These questions should be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In a September 2009 rating decision, the RO denied entitlement to service connection for bilateral hearing loss, tinnitus, and bilateral knee disability. In a statement received in October 2009, the Veteran referred to the September 2009 rating decision and requested to be rescheduled for another VA examination in conjunction with his claims or else consider this statement as his notice of disagreement (NOD). He was rescheduled for appropriate VA examinations in February 2010. He was advised in a March 2010 determination letter that his claims remained denied and he had one year from the date of the letter to tell VA if he did not agree with the decision. In May 2010 correspondence, the Veteran referenced the March 2010 letter and reported that he was officially filing a notice of disagreement with the decision to deny his claims for bilateral knee disability, bilateral hearing loss, and tinnitus. His statement constitutes an NOD with the denials of service connection. See 38 C.F.R. § 20.201 (2012). A statement of the case (SOC) has not been issued as it relates to the issues of service connection for bilateral knee disability, bilateral hearing loss, and tinnitus. The Board is required to remand the case for issuance of the statement of the case. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of the Veteran's erectile dysfunction and any foot calluses identified during the appeal period. The claims file and Virtual VA record should be reviewed in conjunction with such examination. All necessary testing should be accomplished. The examiner should: a) Provide an opinion as to whether there is at least a 50 percent probability (at least as likely as not) that the Veteran has erectile dysfunction and/or foot calluses that had their onset in active service; or are otherwise the result of disease or injury in service, to include Agent Orange exposure. b) If not related to service, then provide an opinion at the whether there is at least a 50 percent probability (at least as likely as not) that the Veteran's erectile dysfunction and foot calluses were caused or aggravated by the Veteran's service connected diabetes mellitus. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner should specifically comment on the December 2005 statement from Dr. D.J.G. indicating that the Veteran's erectile dysfunction was directly due to his diabetes mellitus as well as treatment records from Dr. D.J.G. that included a diagnosis of erectile dysfunction dating back to February 1997. Reasons should be provided for all opinions. In rendering these opinions, the examiner should consider the Veteran's reports of his history and symptoms. 2. Issue a SOC on the issues of entitlement to service connection for service connection for bilateral knee disability, bilateral hearing loss, and tinnitus. The issues should not be certified to the Board unless a timely substantive appeal is received. 3. If any benefit for which there is a perfected appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs