Citation Nr: 1327805 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-17 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for diabetic neuropathy, claimed as right arm nerve damage. 3. Entitlement to service connection for diabetic peripheral neuropathy of the lower extremities. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1971 to February 1974. He had another period of active service from February 1974 to December 1976 for which the character of discharge was found to be a bar to VA benefits in an August 1978 Administrative Decision. Therefore, only the period of service from June 1971 to February 1974 will be considered herein. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during military service. 2. There is no probative evidence that the Veteran's diabetes mellitus, type II, is causally or etiologically related to service or was incurred within a year of service. 3. There is no probative evidence that the Veteran's diabetic neuropathy, claimed as right arm nerve damage, is causally or etiologically related to service. 4. There is no probative evidence that the Veteran's diabetic peripheral neuropathy of the lower extremities is causally or etiologically related to service. 5. There is no probative evidence that the Veteran's hypertension is causally or etiologically related to service or was incurred within a year of service. 6. The probative evidence establishes that the Veteran's skin disability, psoriasis, was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for diabetic neuropathy, claimed as right arm nerve damage, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 3. The criteria for service connection for diabetic peripheral neuropathy of the lower extremities have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 5. The criteria for service connection for a skin disability, psoriasis, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in December 2008 fully satisfied the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records and VA treatment records have been obtained and associated with the claims file. The RO did not afford the Veteran a VA examination for the claims of service connection on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. While the Veteran had been diagnosed with diabetes mellitus, type II, diabetic neuropathy, and hypertension, there is no indication that they are associated with an in-service event, as discussed below in detail. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Service Connection 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). 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 mellitus, type II or hypertension become 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). A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Type II diabetes is among the diseases listed as presumptive to such exposure. 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). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). The Department of Defense (DoD) has confirmed that Agent Orange was used along the southern boundary of the Demilitarized Zone (DMZ) in Korea from April 1968 through August 1971. DoD has also identified specific military units that were assigned or rotated to areas along the DMZ where Agent Orange was used. For veterans who served in Korea from April 1968 through August 1971 in the specific units identified by DoD, exposure to Agent Orange is conceded. The Veteran served in the 9th Infantry Division in Korea from December 1975 to July 1976 and contends that he was exposed to herbicide agents in Korea. It cannot be presumed that he was exposed to herbicide agents in Korea because of his dates of service and unit assignment. In addition, his service in Korea was for the period of service for which VA benefits are not available due to the August 1978 Administrative Decision. Furthermore, the Veteran did not serve in Vietnam. Therefore, it cannot be presumed that the Veteran was exposed to herbicide agents in service, and thus service connection is not available for diabetes mellitus, type II, on a presumptive basis due to exposure to herbicides. See 38 C.F.R. § 3.307(a). The Veteran reported at his April 2005 Agent Orange examination that he received a letter from the Army stating that he was exposed to Agent Orange. He had therefore requested to be placed on the Agent Orange Registry. The Veteran's service personnel records show that he served at Fort Leonard Wood, Fort Polk, in Germany, and at Fort Hood during his period of service from June 1971 to February 1974. There is no letter of record from the Army stating that the Veteran was exposed to Agent Orange, and the dates and locations of the Veteran's service are not consistent with exposure to herbicide agents. Therefore, the Board does not find the Veteran's reports of exposure to herbicide agents during service to be credible. The Board notes that the Veteran has not been found to be service connected for his diabetes mellitus, type II, and that therefore as a matter of law he cannot be found to be service-connected for diabetic neuropathy. See 38 C.F.R. § 3.310(a) (2012). However, service connection will be considered on a direct basis. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence 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, 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 (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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A. Diabetes, Diabetic Neuropathy, and Hypertension The service treatment records (STRs) show that in February 1973 the Veteran suffered a laceration to the right arm with severed extensor tendons and no nerve involvement. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Service connection is already in effect for a right wrist laceration, and therefore the analysis herein is limited to neuropathy unrelated to this injury. The STRs do not show any complaints, treatment or diagnoses related to diabetes mellitus, neuropathy, or hypertension. February 2005 VA treatment records indicate that the Veteran had diabetes that was controlled by diet. The February 2005 VA treatment records also show that the Veteran's blood pressure was 148/81 and that he was prescribed lisinopril. The treatment records show ongoing treatment for hypertension without an opinion on etiology. At an April 2005 Agent Orange examination the Veteran reported having diabetes mellitus, type II for three years. At June 2005 VA treatment the Veteran complained of numbness in his feet of three weeks' duration that the treating providers felt was probably related to diabetes mellitus. VA treatment records show ongoing treatment for diabetes and diabetic neuropathy without an opinion on etiology of the Veteran's diabetes. The Veteran had a VA general medicine examination in September 2009 for an individual unemployability claim at which he reported that diabetes mellitus, type II did not occur during service. The examiner diagnosed the Veteran with diabetes mellitus, type II, and bilateral upper and lower extremity diabetic neuropathy. No opinion was provided on etiology. At the September 2009 VA examination the Veteran's blood pressure was 117/68, 119/66, and 118/70, and the examiner wrote that hypertension was not diagnosed. VA treatment records subsequent to the September 2009 VA examination indicate that the Veteran had a diagnosis of hypertension. Therefore, the Board finds that there is a current disability despite the opinion of the September 2009 examiner that the Veteran did not have a diagnosis of hypertension. There are no medical opinions of record indicating that the Veteran's diabetes mellitus, type II, neuropathy, and hypertension are related to service. Furthermore, the record does not show that they were incurred during service or that diabetes mellitus, type II, or hypertension were occured within a year of service. The record also indicates that the Veteran was diagnosed with diabetes mellitus, type II, neuropathy, and hypertension over 25 years after his military service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran has made statements to the effect that the diabetes mellitus, type II, diabetic neuropathy, claimed as right arm nerve damage, diabetic peripheral neuropathy of the lower extremities, and hypertension are related to service, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Because the evidence preponderates against the claims of service connection for diabetes mellitus, type II, diabetic neuropathy, claimed as right arm nerve damage, diabetic peripheral neuropathy of the lower extremities, and hypertension, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. B. Skin Disability The STRs show that in February 1973 the Veteran was diagnosed with psoriasis of the scalp, hairline, and right upper chest. There were also a few scattered lesions on the extremities. He was prescribed a topical solution. February 2005 VA dermatology treatment records indicate that the Veteran had had "fairly extensive" psoriasis of the scalp, face, elbows, buttocks and lower limbs. He had had chronic plaque psoriasis since age 21. On examination there was scaly, well-defined erythematous plaques on the elbows, buttocks, lateral thighs, knees, and most of the legs. The Veteran also was diagnosed with psoriasis at the September 2009 VA examination. Given the in-service diagnosis of psoriasis and the credible report from VA treatment that the Veteran has had psoriasis since age 21, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's psoriasis was incurred in service. Applying the benefit of the doubt doctrine, all reasonable doubt is resolved in favor of the Veteran when the evidence is in relative equipoise. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for a skin disability is granted. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for diabetic neuropathy, claimed as right arm nerve damage, is denied. Service connection for diabetic peripheral neuropathy of the lower extremities is denied. Service connection for hypertension is denied. Service connection for a skin disability, psoriasis, is granted. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs