Citation Nr: 1327296 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 05-10 816A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, including as secondary to herbicide exposure. 2. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus, type 2. 3. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as secondary to diabetes mellitus, type 2. 4. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from January 1967 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2004 and October 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The claims file before the Board is a rebuilt file. In addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claims. A review of these electronic documents reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In November 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In January 2011 and November 2012, the Board remanded these matters for additional development. In May 2013, the Veteran submitted additional evidence and waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. There is no probative evidence indicating the Veteran served in Vietnam during the Vietnam era, or that he was exposed to Agent Orange during his service. 2. Diabetes mellitus was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 4. Hypertension was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 5. Peripheral neuropathy of the bilateral upper extremities was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 6. Peripheral neuropathy of the bilateral lower extremities was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for diabetes mellitus are not met38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for establishing service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for establishing service connection for peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2011 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The November 2011 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claims were thereafter readjudicated, most recently in a March 2013 supplemental statement of the case. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented testimony in support of his right ear hearing loss claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection, to include questions regarding Agent Orange exposure. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The record reflects that the current claims file is a rebuilt file. When service treatment records are missing, VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo, 9 Vet. App. 46 (1996). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service personnel records, VA outpatient treatment records, Social Security Administration (SSA) records, and private treatment records. Additionally, the Veteran provided testimony at a November 2010 Board hearing, and also submitted multiple documents and photographs. The Board notes that a VA examination has not been conducted in this case. However, as the Veteran has not been found to have been exposed to Agent Orange, he does not contend that his disabilities are related to service for reasons other than such exposure, and there is no competent evidence even suggesting a relationship between the claimed disabilities and service on a basis other than his claimed exposure, a VA examination is not warranted. 38 C.F.R. § 3.159(c)(4). In January 2011 and November 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) for additional development. The actions requested in the prior remands have been undertaken. In this regard, appropriate development was conducted in an attempt to verify his claimed exposure and a memorandum was prepared concerning the need for further attempts. Additionally, corrective VCAA notice was provided, a request for service treatment records was made, and SSA records and private treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was a very active participant in the claims process by submitting extensive evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes, hypertension, or organic diseases of the nervous system becomes manifest to a degree of 10 percent 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that he is entitled to service connection for diabetes as a result of Agent Orange exposure during service. He claims his hypertension and peripheral neuropathy of the extremities is secondary to his diabetes. Throughout the course of this claim and appeal, the Veteran has reported that during his tour in Thailand he was stationed in Korat, and on one occasion was on temporary duty (TDY) in Ubon for a period of 30 days. He reports that during that TDY period he was sent into a jungle area, in an unknown location, to repair a downed aircraft. He noted that he was unsure as to whether this jungle area was in Vietnam. At his November 2010 Travel Board hearing, the Veteran reported that this occurred in approximately July 1969. He has also noted TDY to Takhili AFB and has alleged exposure near the perimeter at Korat. 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. 38 C.F.R. § 3.307(a). A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases, including type 2 diabetes mellitus and acute or sub-acute peripheral neuropathy, 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 section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). Recently, 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31,1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv)). Upon consideration of the record, the Board finds that the preponderance of the competent and probative evidence is against a finding that the Veteran was exposed to Agent Orange during his military service. The Veteran's service personnel records do not show, and the Veteran does not specifically contend that he served in Vietnam or near the DMZ in Korea. On this point, he testified that his excursion to the jungle may have been to Vietnam and that he might have stopped to refuel in Vietnam, but he did not actually know. The National Personnel Records Center responded that there was no evidence of the Veteran's exposure to herbicides and they could not determine whether he served in Vietnam. While the Veteran's DD Form 214 indicates that he received the Vietnam Service Medal and Vietnam Campaign Medal, such medals are insufficient to establish that the Veteran set foot in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1196 (Fed.Cir.2008) ("it is undisputed that some servicemembers who received the Vietnam Service Medal were never either in Vietnam or in its territorial waters[.]"). Accordingly, he may not be presumed to have been exposed to Agent Orange. Regarding the Veteran's contentions that he was exposed to Agent Orange while serving in Thailand, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to Agent Orange during such service. Information from the Department of Defense (DoD) indicates that only limited testing of tactical herbicides was conducted in Thailand from April to September 1964. The location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. The Department of the Air Force indicated that other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 -17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." It was also noted that the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, but does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. In March 2013, the U.S. Army and Joint Services Records Research Center (JSRRC) responded that they research the available July 1969 historical information submitted by the 388th field Maintenance Squadron (FMS), and its higher headquarters, the 388th Tactical Fighter Wing. They stated that the information does not document the spraying, usage, transportation of storage of Agent Orange or tactical herbicides at Ubon RTAFB, Thailand. While the Veteran contends that he was exposed to Agent Orange during his service in Thailand, the record does not reflect that the Veteran has any specialized knowledge in identifying chemical compounds or determining whether commercial sprays used were, in fact, herbicides as 38 C.F.R. § 3.307(a)(6). Moreover, the Department of Defense has indicated that no tactical herbicides were used in Thailand after 1964. The Veteran did not service in Thailand until 1968. The Board finds the official records are more probative and persuasive than the Veteran's contentions on this point. Accordingly, the Board finds the most probative evidence is against a finding that the Veteran was exposed to Agent Orange during service. Thus, the presumptions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012) are inapplicable. Notwithstanding the above, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, however, the evidence does not reflect, and the Veteran does not contend, that his diabetes mellitus, hypertension, or bilateral upper and lower extremity peripheral neuropathy arose during service or within one year following discharge from service. With respect to post service medical records, private treatment records first document diagnoses of diabetes mellitus and hypertension in July 2003. VA treatment records dated in August 2008 reflect that the Veteran was assessed with peripheral neuropathy. There is no competent evidence suggesting any of these disorders is related to service for reasons other than the alleged herbicide exposure. The Veteran alleges that his diabetes is due to Agent Orange exposure and his hypertension and peripheral neuropathy are secondary to his diabetes. The Board notes that in a May 2006 letter, Dr. Chase opined that, if the Veteran was exposed to Agent Orange, it is as likely as not that his current diabetes was caused by this exposure. However, as noted above, the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange. As Dr. Chase's opinion is predicated on the assumption that the Veteran was exposed to Agent Orange, this opinion has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). With respect to the Veteran's claims for service connection for hypertension and peripheral neuropathy on a secondary basis as due to diabetes, as noted above, service connection for diabetes has not been established. Review of the record further indicates that the Veteran has not established service connection for any disability. Accordingly, there is no legal basis upon which to award service connection for hypertension and peripheral neuropathy on a secondary basis. 38 C.F.R. § 3.310. For all the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claims for service for diabetes mellitus, hypertension, and peripheral neuropathy of the bilateral upper and lower extremities, and the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for diabetes mellitus, type 2, is denied. Service connection for hypertension is denied. Service connection for peripheral neuropathy of the upper extremities is denied. Service connection for peripheral neuropathy of the lower extremities is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs