Citation Nr: 1329997 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-35 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a nerve condition of the left arm, to include carpal tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1972 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2009 and July 2010 rating decisions of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's Virtual VA file. The Board has reviewed the Veteran's Virtual VA file and finds that aside form the hearing transcript, there are no additional relevant records contained therein. The issues of entitlement to service connection for a back disability and a left arm disability 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. It is not shown that the Veteran was exposed to an herbicide agent (to include Agent Orange) during service. 2. Type II diabetes mellitus was not manifested in service or in the first post-service year, and is not shown to be related to the Veteran's active service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in or aggravated by active service, nor may service incurrence or aggravation of this disability be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the Court has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in May 2010, prior to the initial adjudication of the claim. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. The Veteran's service treatment records (STRs) and relevant parts of his service personnel records are associated with his claims file, and pertinent, available, post-service treatment records have been secured. The National Personnel Records Center (NPRC) was contacted in May 2011 to verify whether the Veteran was exposed to Agent Orange in service. In June 2011 the NPRC stated it had insufficient evidence to corroborate exposure. In March 2012, the Veterans Benefit Administration (VBA) reviewed Department of Defense (DoD) records concerning herbicide testing at Aberdeen Proving Ground. This research revealed that some herbicide was conducted in remote locations of the facility from May 1965 to May 1966 with an additional test performed the week of July 14, 1969, on Poole's Island, south of Aberdeen Proving Ground. It was noted that these testing was performed prior to the Veteran's service at this facility and that verification of contact of herbicides on clothing and material that had previously been in Vietnam could not be verified. The Veteran was informed of these findings and was requested to provide additional evidence. The Board finds that no additional development, as for medical opinions or examinations is necessary. In Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, the Federal Circuit noted that 38 C.F.R. § 3.159(c)(4)(i) requires that a claimant establish that he or she has suffered an event, injury, or disease in service in order to trigger VA's obligation to provide a VA medical examination or obtain a medical opinion. Here, there is no medical evidence of diabetes mellitus until many years after the Veteran's service and the evidence does not establish in-service contact to herbicides. Accordingly, a medical opinion is not necessary to decide this claim, as such opinion could not establish related disease or injury in service. See also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is not required to accept a medical opinion that is based on the appellant's recitation of medical history). Evidentiary development in this matter is complete to the extent possible. The Veteran has not identified any other pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, may be presumed to have been incurred or aggravated in service if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include Type II diabetes) to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has determined that 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). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran has argued that he was exposed to Agent Orange while serving at the Aberdeen Proving Grounds. He argues that he handled equipment returning from Vietnam including uniforms from dead soldiers which were covered in Agent Orange. This exposed him to Agent Orange which ultimately caused his diabetes. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnoses of Type II diabetes mellitus. VA treatment records dated from February 2010 show the Veteran had a new diagnosis of diabetes mellitus Type II. The RO has attempted to verify the Veteran's claimed exposure to Agent Orange. In May 2011 the RO contacted the NPRC to verify whether the Veteran was exposed to Agent Orange in service. In June 2011 the NPRC stated it had insufficient evidence to corroborate exposure. The Veteran was informed of the NPRC findings and was requested to provide additional evidence. The Veteran provided a statement in February 2012 restating his previous allegations of exposure to Agent Orange; he did not provide any additional information. As noted above, in March 2012, VBA reviewed DoD records that showed that while there had been some Agent Orange testing at Aberdeen Proving Grounds the testing predated the Veteran's service. Moreover, it stated that if the alleged exposure was through clothing from soldiers who served in Vietnam, said remote exposure cannot be verified. At the May 2013 videoconference hearing the Veteran stated he had been exposed to Agent Orange at Aberdeen Proving Grounds while handling deceased soldiers' belongings who had served in Vietnam. It is not in dispute that the Veteran now has Type II diabetes mellitus. However, it is neither alleged, nor shown by the record, that this disability was present in service or manifested in the Veteran's first year post-service. Furthermore, there is no medical opinion in the record that directly relates the Veteran's diabetes to service or to any event therein. Accordingly, service connection for Type 2 diabetes mellitus on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309) is not warranted. The Veteran alleges that his diabetes resulted from his exposure to Agent Orange in service. However, while the Veteran contends he was exposed to Agent Orange through tainted clothing and belongings from soldiers who served in Vietnam the record does not contain any verified exposure of that kind. While he may have handled belongings from soldiers who served in Vietnam, exposure to Agent Orange through such handling is not shown and has not been verified. Consequently, the Veteran's claim seeking service connection is not within the purview of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (which provides for establishing service connection for diseases, including diabetes mellitus, on a presumptive basis based on herbicide exposure therein for veterans who served on land in Vietnam). The Veteran may still establish service connection for diabetes mellitus by affirmative and competent evidence that such disease is related to his service or some event therein. However, as noted above, the first evidence of a diagnosis of this disability is many years after the Veteran's discharge from service in 1973 (2010 according to the VA treatment records). Such a long interval between service and the initial diagnosis is, of itself, a factor against a finding that this disability is service-related. Furthermore, there is no competent evidence that links diabetes mellitus to the Veteran's service. The Veteran believes that his Type II diabetes mellitus is related to Agent Orange exposure in service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Here, however, medical expertise is required to answer the question of whether the Veteran's current diabetes mellitus is related to his active service. The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value in light of the lack of evidence of in-service herbicide exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the Veteran's claims. ORDER Service connection for Type II diabetes mellitus, to include as secondary to herbicide exposure, is denied. REMAND The Veteran seeks entitlement to service connection for a back disability and a left arm disability. In regards to the back, the Veteran has alleged that he has had back problems since service after having back issues while exercising and carrying 60-65 pound packs on his back. VA outpatient treatment records show the Veteran has been diagnosed with lumbar spine strain, osteoporotic bones in the spine, an old fracture of the left L4 transverse process and degenerative disc disease. While service treatment records are silent for any problems related to the back, the Veteran is competent to state he had back problems such as back pain in service. In regards to the left arm, service treatment records show that in March 1973 the Veteran was treated for a laceration to the left forearm which required stitches. The Veteran was afforded a general VA examination in January 2009 for purposes of a pension claim. At the time, his back and left arm were examined, but no medical opinion regarding a nexus to service was provided. On remand, and to ensure due process, a new VA examination should be afforded and a medical opinion as to the etiology of any identified disability should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed back and left arm disability. The Veteran's claims file, to include any relevant records in Virtual VA, must be made available to the examiner for review in connection with the examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and following this review and examination of the Veteran, the examiner must identify all current disabilities of the back and left arm, to include any nerve disability of the left arm. For each back and/or left arm disability diagnosed, the examiner must offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed disability of the back and left arm is causally or etiologically related to any event, injury or disease in the Veteran's military service. A clear rationale for all opinions should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why. 2. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 3. After completing these actions, the RO/AMC should conduct any other development necessary and as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. Thereafter, the RO/AMC should readjudicate the claims based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs