Citation Nr: 1329566	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  11-07 309	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut


THE ISSUES

1.  Entitlement to service connection for peripheral 
neuropathy of the left upper extremity.

2.  Entitlement to service connection for peripheral 
neuropathy of the right upper extremity.

3.  Entitlement to service connection for diabetes mellitus, 
type II.

4.  Entitlement to a total disability rating based on 
individual unemployability due to the service-connected 
disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Connecticut Department of 
Veterans Affairs



WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to March 
1969. 

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a February 2010 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Hartford, Connecticut, which denied the above claims.  The 
Veteran filed a notice of disagreement (NOD) with these 
determinations in July 2010, and timely perfected his appeal 
in March 2011.

The Veteran was afforded a Video Conference hearing before 
the undersigned Veterans Law Judge in August 2011.  A 
written transcript of that hearing was prepared and 
incorporated into the evidence of record.  

The Board notes that, in addition to the paper claims file, 
there is a Virtual VA paperless claims file associated with 
the above claims.  A review of the documents in such file 
reveals that they are either duplicative of the evidence in 
the paper claims file or are irrelevant to the issues on 
appeal.


FINDINGS OF FACT

1.  During the August 2011 Video Conference Hearing, the 
Veteran indicated his desire to withdraw his appeal seeking 
service connection for peripheral neuropathy of the right 
and left upper extremities.  The Board received such request 
prior to the promulgation of a decision.

2.  The Veteran's diabetes mellitus, type II is presumed to 
be etiologically related to in-service exposure to an 
herbicide agent.

3.  The Veteran is unable to secure or follow a 
substantially gainful occupation due to his service-
connected disabilities, given his education and occupational 
background.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal by the Veteran of a 
Substantive Appeal pertinent to the issues of entitlement to 
service connection for peripheral neuropathy of the right 
and left upper extremities, have been met.  38 U.S.C.A. § 
7105(b)(2),(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 
(2012).

2.  The Veteran's diagnosed diabetes mellitus, type II was 
incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) 
(2012).

3.  Resolving all reasonable doubt in the Veteran's favor, 
the criteria for a total disability rating based on 
unemployability due to the service-connected disabilities 
are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 4.3, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal 
that fails to allege specific error of fact or law in the 
determination being appealed.  A Substantive Appeal may be 
withdrawn in writing at any time before the Board 
promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may 
be made by the appellant or by his or her authorized 
representative.  38 C.F.R. § 20.204.  In August 2011, the 
Veteran testified during a Video Conference Hearing before 
the undersigned Veterans Law Judge; a transcript of that 
hearing is of record.  The Veteran stated that he wished to 
withdraw the issues of service connection for peripheral 
neuropathy of the right and left upper extremities.  Because 
this statement was later reduced to writing and incorporated 
into the record in the form of a written transcript, the 
transcript of that hearing has been accepted as the 
Veteran's withdrawal of the Substantive Appeal as to those 
issues.  See Tomlin v. Brown, 5 Vet. App. 355 (1993).  The 
appellant has withdrawn the appeal of the issues of 
entitlement to service connection for peripheral neuropathy 
of the right and left upper extremities, and, hence, there 
remain no allegations of errors of fact or law for appellate 
consideration regarding these issues.  As such, the Board 
does not have jurisdiction to review the appeal of the 
issues of entitlement to service connection for peripheral 
neuropathy of the right and left upper extremities, and they 
are dismissed.

II.	Duties to Notify and Assist

VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek 
to provide; and (3) that the claimant is expected to provide 
in accordance with 38 C.F.R. § 3.159(b)(1).  This notice 
must be provided prior to an initial unfavorable decision on 
a claim by the agency of original jurisdiction (AOJ).  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In light of the Board's decision to grant the Veteran's 
claims of service connection for diabetes mellitus, type II 
and a TDIU, a discussion as to whether VA's duties to notify 
and assist the appellant have been satisfied is not 
required.  The Board finds that no further notice or 
assistance is necessary, and the appeal at this time is not 
prejudicial to the Veteran.

III.	 Service Connection

Service connection may be granted for a disease or injury 
incurred in or aggravated by service.  38 U.S.C.A. § 1110.  
Service connection may also be granted for any disease 
diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) 
medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service occurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in-service disease 
or injury and the present disability. Hickson v. West, 12 
Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). 

However, the absence of a documented disability while in 
service is not fatal to a claim for service connection.  
Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  When a 
Veteran does not meet the regulatory requirements for a 
disability at separation, he can still establish service 
connection by submitting evidence that a current disability 
is causally related to service.  Hensley v. Brown, 5 Vet. 
App. 155, 159-60 (1993).  

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for the evidence which it finds 
to be persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  See 
Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight 
is not accorded to each piece of evidence contained in the 
record; every item of evidence does not have the same 
probative value.  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise, 
with the Veteran prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  38 U.S.C.A. § 5107; Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990).  When there is an 
approximate balance of positive and negative evidence 
regarding any issue material to the determination, the 
benefit of the doubt is afforded to the Veteran.

Diabetes Mellitus, type II

The Veteran contends that his diabetes mellitus is a result 
of his time in active service.  Specifically, the Veteran 
contends that his diabetes mellitus, type II is a result of 
Agent Orange exposure while serving in Vietnam. 

Certain Veterans - namely, those who served in Vietnam 
between January 9, 1962, and May 7, 1975 - are presumed by 
law to have been exposed to herbicides during service.  38 
U.S.C.A. § 1116.  Generally, the presumption of herbicide 
exposure does not apply to Vietnam-era Veterans unless they 
served within the land borders of Vietnam during the 
prescribed period.  Haas v. Peake, 525 F.3d 1168, 1172 (Fed. 
Cir. 2008) (holding that Veterans who served on ships off 
the coast of Vietnam but who never set foot within the land 
borders of Vietnam are not entitled to the presumption of 
herbicide exposure).

The applicable criteria also provide that a disease 
associated with exposure to certain herbicide agents, listed 
in 38 C.F.R. § 3.309(e), will be considered to have been 
incurred in service under the circumstances outlined in this 
section even though there is no evidence of such disease 
during the period of service.  38 C.F.R. § 3.307(a).  
Diabetes mellitus type II is one of these diseases.  38 
C.F.R. § 3.309(e).  

The Veteran's DD-214 shows that he received the Vietnam 
Service Medal with two Bronze Service Stars, the Republic of 
Vietnam Campaign Medal, the National Defense Medal, 
Sharpshooter (Rifle) and the Purple Heart.  Additionally, 
the Department of the Army records note that the Veteran was 
awarded the Purple Heart for wounds he received in 
connection with military operations against a hostile force 
while serving in the Republic of Vietnam.  There is no 
affirmative evidence in the record to establish that the 
Veteran was not exposed to herbicides during service.  In 
fact, in a December 2010 rating decision, the RO granted 
service connection for ischemic heart disease, and conceded 
in-service exposure to herbicides.  Therefore, he is 
entitled to a presumption of exposure to herbicide agents.

The Veteran submitted an August 2011 private physician 
statement.  The physician stated that the Veteran was 
diagnosed with diabetes on March 31, 2010 with a NbA1c test 
of 6.2.  He concluded that this diagnosis may be a result of 
Agent Orange exposure.  

On balance, the record of evidence supports the conclusion 
that the Veteran has a current disability of diabetes 
mellitus, type II.  Since the Veteran is presumed to have 
been exposed to herbicides and has been diagnosed with a 
disease presumptively linked to herbicide exposure, namely 
diabetes mellitus, type II, the Board finds it reasonable to 
conclude that service connection for diabetes mellitus, type 
II, is warranted.  The appeal is granted.

IV.	 TDIU Consideration

Total disability ratings for compensation based on 
individual unemployability may be assigned where the 
schedular rating is less than total if it is found that the 
disabled person is unable to secure or follow a 
substantially gainful occupation as a result of 1) a single 
service-connected disability ratable at 60 percent or more, 
or 2) as a result of two or more disabilities, provided at 
least one disability is ratable at 40 percent or more, and 
there is sufficient additional service-connected disability 
to bring the combined rating to 70 percent or more.  See 38 
C.F.R. §§ 3.340, 3.34l, 4.16(a).  In this regard, the Board 
highlights that disabilities resulting from a common 
etiology or a single accident, and disabilities affecting a 
single body system (i.e., the orthopedic, digestive, 
respiratory, cardiovascular-renal, or neuropsychiatric 
system), are considered to be one disability.  38 C.F.R. 
§ 4.16(a).  Where these percentage requirements are not met, 
entitlement to the benefits on an extraschedular basis may 
be considered when the Veteran is unable to secure and 
follow a substantially gainful occupation by reason of 
service-connected disabilities.  See 38 C.F.R. § 4.16(b).

Entitlement to a TDIU requires the presence of an impairment 
so severe that it is impossible for the average person to 
secure and follow a substantially gainful occupation.  See 
38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In 
reaching such a determination, the central inquiry is 
"whether the Veteran's service-connected disabilities alone 
are of sufficient severity to produce unemployability." 
Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  
Consideration may be given to the Veteran's level of 
education, special training, and previous work experience in 
arriving at a conclusion, but not to his age or the 
impairment caused by non-service- connected disabilities.  
See 38 C.F.R. §§ 3.341, 4.16, 4.19.

In making this determination, the Board must assess the 
credibility and probative value of evidence, and, provided 
that it offers an adequate statement of reasons or bases, 
the Board may favor one medical opinion over another.  See 
Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. 
Derwinski, 1 Vet. App. 190 (1991).  While the Board is not 
free to ignore the opinion of a treating physician, it is 
free to discount the credibility of that physician's 
statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 
(1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).  

The Board notes that the fact that a Veteran is unemployed 
or has difficulty obtaining employment is insufficient, in 
and of itself, to establish unemployability.  The relevant 
question is whether the Veteran is capable of performing the 
physical and mental acts required by employment, not whether 
he or she can find employment.  See Van Hoose v. Brown, 4 
Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15).  

The Veteran contends that he is entitled to a TDIU.  
Specifically, he reported that he his psychiatric and heart 
disabilities have rendered him unemployable.  

In this case, service connection is in effect for 
posttraumatic stress disorder, rated as 70 percent 
disabling; ischemic heart disease, post myocardial 
infarction, rated as 30 percent disabling; multiple wound 
scars of the thorax and back, rated as 10 percent disabling; 
residuals of a left knee injury, rated as noncompensable; 
and scar of the right frontal temporal area, rated as 
noncompensable.  Additionally, the Board notes that the 
Veteran's claim of service connection for diabetes mellitus, 
type II has been granted above.  The Veteran's combined 
disability rating is 80 percent, as of March 4, 2009.  
Accordingly, the Veteran meets the percentage requirements 
of 38 C.F.R. § 4.16 because at least one disability is 
ratable at 40 percent or more, PTSD, and his additional 
service-connected disabilities bring his combined disability 
rating to 80 percent, which is above the required 70 percent 
rating.

Of record is a July 2008 Vet Center psychiatric assessment, 
which noted that the Veteran's PTSD symptoms caused 
significant impairment of his functioning in employment, 
social settings, relationships, and marriage.  

The Veteran and his spouse testified before a Veterans Law 
Judge at an August 2011 Video Conference hearing.  The 
Veteran believed that his service-connected PTSD and heart 
condition rendered him incapable of any gainful employment.  
The Veteran reported previous employment as a steel worker, 
maintenance helper, and mechanic.  He reported that he had 
an eighth grade education.  He testified to such work 
problems as being up tight, difficulty handling orders, and 
too much stress.  The Veteran's wife stated that his job was 
kind and worked with his PTSD symptoms, by allowing him to 
go off by himself.  He also reported difficulty going 
grocery shopping because of the crowds.  The Veteran 
reported that he continued to go to PTSD counseling twice a 
week.  The Veteran worked on wood and made walking sticks, 
but mostly did this activity by himself.  He attended 
church, but did not participate in any organizations he was 
a member of.  The Veteran reported problems with shortness 
of breath due to his heart condition, even when sedentary.  
He easily lost his breathe doing chores or using the stairs, 
and had to hire people to mow his lawn and weed.  

The Veteran submitted an August 2011 private physician 
statement.  The physician stated that given the limitation 
of the Veteran's multiple medical and psychiatric issues, he 
believed that the Veteran was not able to be employed. 

After a careful review of the evidence, the Board finds that 
the Veteran's pertinent lay evidence and the positive nexus 
opinion provided by the Veteran's private physician, 
demonstrate that his service-connected medical (ischemic 
heart disease, multiple wound scars, left knee disability, 
and scar of the right frontal temporal area) and psychiatric 
(PTSD) disabilities render him unemployable.  Therefore, the 
Board finds that reasonable doubt exists as to whether the 
Veteran is able to secure and follow substantially gainful 
employment as a result of his service-connected 
disabilities.  Accordingly, applying the doctrine of the 
benefit of the doubt, the Board grants the Veteran's claim 
of entitlement to a TDIU.  38 U.S.C.A. § 5107(b).


ORDER

The appeal as to the matters of entitlement to service 
connection for peripheral neuropathy of the right and left 
upper extremities are dismissed.

Service connection for diabetes mellitus, type II is 
granted.

Subject to the laws and regulations governing monetary 
awards, entitlement to a total disability rating based on 
individual unemployability due to the service connected 
disabilities is granted.





____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs