Citation Nr: 1327591 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-33 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease, to include as due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the current appellate claims. The Veteran provided testimony at a hearing before a decision review officer (DRO) at the RO in July 2010, and before the undersigned Veterans Law Judge (VLJ) in October 2012. Transcripts from both hearings are of record. In December 2012, the Board remanded the current appellate claims for further development to include completing all notification and development outlined in Training Letter 10-06 and VA Manual M21-1MR regarding disability claims based on herbicide exposure from U.S. Navy and Coast Guard veterans of the Vietnam Era. The record reflects the Veteran was sent notification in compliance with these requirements via a December 2012 letter, and that these provisions were considered when the claims were readjudicated via a March 2013 Supplemental Statement of the Case (SSOC). All other development directed by the Board's remand appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Despite the foregoing, for the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's peripheral neuropathy claim. Accordingly this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board notes that the Veteran also perfected an appeal on the issue of entitlement to a compensable rating for bilateral hearing loss, and that this issue was included as part of the March 2013 SSOC. However, the Board had already denied this claim in December 2012, and nothing in the record reflects the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Therefore, this issue has been resolved and the Board does not have jurisdiction to further adjudicate the claim. FINDINGS OF FACT 1. The evidence shows that the Veteran served in the Republic of Vietnam during the Vietnam era and has been diagnosed as having diabetes mellitus type 2 and coronary artery disease. 2. The medical evidence shows that the Veteran's diabetes mellitus type 2 and coronary artery disease are compensably disabling. 3. The competent medical evidence reflects the Veteran has erectile dysfunction due to his type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for diabetes mellitus type II are met. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for a grant of service connection for coronary artery disease are met. 38 U.S.C.A. §§ 1110, 1116, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. The criteria for a grant of service connection for erectile dysfunction are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board finds that service connection is warranted for diabetes mellitus type II, coronary artery disease, and erectile dysfunction. As this represents a complete grant of the benefit sought on appeal with respect to these claims, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Nicholson, 492 F.3d 1372, 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 (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, 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); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran essentially contends that he developed type II diabetes mellitus, coronary artery disease, and erectile dysfunction as secondary to herbicide exposure while serving in Vietnam. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On August 31, 2010, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease were added to the list. 75 Fed. Reg. 53202 (2010). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke that do not directly affect the muscles of the heart. Id. at 53204. Further, for purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 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. § 3.307. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. The record reflects the Veteran had service aboard the U.S.S. America CVA-66 in the official waters of Vietnam. His service personnel records do not actually document service on the landmass or the inland waters of Vietnam. Nevertheless, the Veteran himself does not indicate such was the case. Rather, he has testified that he had contact with visitors who would come aboard from Vietnam. He also testified that he took trips into Da Nang to include when he left the ship at the end of his tour of duty. However, he had no official orders for these trips, nor are they indicated in his service personnel or treatment records. The Board acknowledges that the RO did request confirmation as to the Veteran's service in Vietnam, and the official response received in October 2008 from the National Personnel Records Center (NPRC) was that they were unable to determine whether he served in the Republic of Vietnam. This response also noted the various dates the U.S.S. America CVA-66 was in the official waters of Vietnam. In September 2010 the Veterans Benefit Administration issued a Training Letter detailing the procedures for adjudicating claims based on herbicide exposure from Navy veterans. The training letter explained that such vessels as gun line ships, aircraft carriers and supply and support ships were referred to as "Blue Water" navy as they operated in the blue-colored waters of the open ocean. Smaller vessels based along the close coastal waters or within the inland waterways of Vietnam were referred to as the "Brown Water" navy as they operated on the muddy, brown-colored inland waterways of Vietnam. VA has also promulgated a listing of the Navy ships associated with service in Vietnam and hence exposure to herbicide agents. See Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. The Board observes that the list of "Brown Water" ships does not include the U.S.S. America CVA-66, nor is there any indication that it docked at, or transited the inland waterways of the Republic of Vietnam, coincident with the time period when the Veteran was a member of its crew. Further, the designation of CVA is for aircraft carrier, attack, which reflects it was a "Blue Water" vessel that operated in the blue-colored waters of the open ocean. In short, there is no official record of the Veteran ever having served on the landmass or on land in the Republic of Vietnam. However, as already noted, he has not contended that such is the case. Rather, he has indicated that he took trips aboard aircraft when available, and that the aircraft that transported him out of the area at the end of his service stopped at Da Nang. His testimony on these matters at the July 2010 and October 2012 hearings is credible and plausible. Further, such actions are within the capability of a lay person to observe and are not inherently incredible. In fact, the circumstances in which he indicated he was on land in Vietnam appear consistent with the circumstances of his service. For example, he was aboard a ship that was within the official waters of Vietnam. In pertinent part, a NAVPERS Form 601-13 reflects that the Veteran served in a designated combat zone aboard the USS AMERICA in contiguous waters off Vietnam during various periods in 1970, including October 14 to 29, 1970. The NPRC also reported that his ship was in official Vietnam waters during May/June 1968 and July/Aug 1968, while he was assigned thereto. Based upon his location at that time as confirmed by official records, he certainly was in close enough proximity, and had a sufficient length of service, that the type of inland trips he described was certainly possible. The Board further notes that the Veteran's description of the aircraft in which he traveled is consistent with official military aircraft that would have provided such service. He testified at the July 2010 DRO hearing that he recalled the name and type of aircraft that transported him to/from Da Nang. It was called "Miss America." It was a "C-1A." At his October 2012 Board hearing he recalled that the C-1A flew from the carrier to Da Nang daily, carrying admirals and dignitaries. His carrier was CVA-66, the USS AMERICA. Concerning the claimed aircraft flights to/from Da Nang, online research performed at the Board produced this: Throughout the 1960s and 1970s the C-1 Trader carried mail and supplies to aircraft carriers on station in the Pacific Ocean during the Vietnam War and also served as a trainer for all-weather carrier operations. Another Internet "hit" reflects that CVA-66 did name its C-1 Trader, tail number "035," "Miss America." It was retired later, due to its age. The Board also notes that the Veteran's service records reflect that, on October 30, 1970, he was transferred from his ship to Subic Bay and Clark AFB and then to the nearest CONUS naval separation center. The Veteran has stated that his release date from active service arrived while serving in the Tonkin Gulf and so they placed him on another flight to Da Nang, where he then changed planes and flew back to the United States. The details supplied in this claim appear consistent with standard operating procedures as contended by the Veteran. The Board also wishes to emphasize that the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects the Veteran did was on land in the Republic of Vietnam during the Vietnam War era. Accordingly, the Board must conclude that he was presumptively exposed to herbicides while on active duty. See 38 U.S.C.A. § 1116. Adjudication of this case does not end with the finding that the Veteran was presumptively exposed to herbicides during his active service. The Board must now address whether his current disabilities are due to such exposure. Given the complex nature of the disease processed claimed by the Veteran, as well as the affect of herbicide exposure, the Board finds that competent medical evidence is required for such diagnoses. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Initially, the Board observes that the competent medical evidence, to include a January 2013 VA examination, shows the Veteran has type II diabetes mellitus and coronary artery disease (i.e., ischemic heart disease). Both disabilities are among the conditions presumptively associated with in-service herbicide exposure pursuant to 38 C.F.R. §§ 3.307, 3.309(e). Further, the evidence shows that the Veteran's diabetes mellitus type 2 and coronary artery disease are manifest to a compensable degree. Thus, service connection is warranted for these disabilities. Regarding the Veteran's erectile dysfunction, the Board observes that this is not one of the conditions listed as presumptively associated with herbicide exposure at 38 C.F.R. § 3.309(e). However, the January 2013 VA examination explicitly states that the erectile dysfunction is due to his diabetes; i.e., the erectile dysfunction is secondary to the diabetes. As stated above, the Board has found that service connection is warranted for his type II diabetes mellitus. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, service connection is warranted for erectile dysfunction on this basis. ORDER Service connection for diabetes mellitus type II is granted. Service connection for coronary artery disease is granted. Service connection for erectile dysfunction is granted. REMAND In this case, the Board observes that it is not clear from the evidence of record whether the Veteran has peripheral neuropathy of the lower extremities. Moreover, the January 2013 VA medical examination contains several internal inconsistencies on this matter. For example, the examiner checked "Yes" to the question of whether the Veteran had any of the following recognized complication of diabetes mellitus: diabetes peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes mellitus, and/or diabetic retinopathy. However, the examiner did not specific which of these complication(s), if any, the Veteran currently has. The examiner also checked "No" to the question of does the Veteran now have or has he/she ever been diagnosed with diabetic peripheral neuropathy? The examiner then checked "Yes" on the question of does the Veteran have any symptoms attributable to diabetic peripheral neuropathy; and identified mild paresthesias and/or dysethesias, as well as numbness, as symptoms for both of the lower extremities. Nevertheless, the examiner checked "No" to the question of does the Veteran have lower extremity diabetic peripheral neuropathy. In view of the foregoing inconsistencies, the Board finds that the January 2013 VA examination is not adequate to resolve the question of whether the Veteran currently has peripheral neuropathy of the lower extremities, and, if so, whether such disability is due to service or secondary to the diabetes mellitus for which the Board has determined service connection is warranted. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required in this case in order to accord the Veteran an adequate examination on this matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his claimed peripheral neuropathy since January 2013. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service claimed lower extremity symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination in accord to determine whether he currently has peripheral neuropathy, and, if so, the etiology thereof. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner must indicate whether the Veteran does currently have peripheral neuropathy of either lower extremity. If the Veteran does have such disability, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that it was incurred in or otherwise the result of his active service. If the examiner determines it is not directly related to service, then an opinion should be provided as to whether it was caused or aggravated by his now service-connected diabetes mellitus type II. By aggravation, the Board means a permanent increase in severity that is beyond natural progress. A complete rationale for any opinion expressed must be provided, and should reflect consideration of the January 2013 VA examination findings. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in March 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs