Citation Nr: 1331033 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-23 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1972. He also served in the Air Force Reserve from September 1972 to September 1974 and the Arizona Air National Guard from November 1982 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the RO in Muskogee, Oklahoma, which denied service connection for diabetes mellitus type II. A videoconference hearing was held in April 2010 before the undersigned Veterans Law Judge. The Board remanded this case in July 2010 so that additional development could be undertaken to determine whether there was corroborative evidence of the Veteran's service in Vietnam, and so that additional VA treatment records could be obtained. As will be explained in more detail in the VCAA and law and analysis sections below, the RO has substantially complied with the directives of the Board's remand. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran's diabetes mellitus type II did not have its onset during active service or within one year after service; and it is not related to any in-service disease, event, or injury. CONCLUSION OF LAW Diabetes mellitus type II was not incurred in or aggravated by military service, nor may it be presumed to have been so incurred to include as a result of in-service exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. § 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. 38 C.F.R. § 3.159(b). 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in July 2007 informed the Veteran of all five elements required by 38 C.F.R. § 3.159(b), as stated above. Regarding the duty to assist, VA obtained the Veteran's service treatment records, service personnel records, and copies of his VA treatment records dated from 1988. The RO contacted the National Personnel Records Center (NPRC) to determine whether there was any evidence of the Veteran's exposure to herbicides in service and whether there was any evidence that the Veteran's unit was involved in flights to Vietnam. The NPRC responded that there was no evidence of exposure to herbicides in service but that they did not keep records of unit histories, et cetera. The RO also contacted the Air Force Historical Research Agency to determine if there was any corroborative evidence that the Veteran had any service in Vietnam. A response was received from this agency in December 2011 addressing the RO's inquiry essentially finding that the Veteran's flying into Vietnam would have been unlikely. It was noted that if the Veteran knew the exact dates he flew into Vietnam, the matter could be researched. The RO thereafter contacted the Veteran for additional information concerning his alleged Vietnam service in a December 2011 letter, but the Veteran did not respond. It appears that the RO has exhausted all efforts to corroborate the Veteran's claimed service in Vietnam and any further research at this point would be futile. The RO did not afford the Veteran a VA examination for the diabetes mellitus. 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. The record does not show that the Veteran's diabetes mellitus type II was incurred in service. His statements concerning the onset of his diabetes are not found to be credible, as discussed below, and the service treatment records show no treatment for diabetes mellitus. 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 been afforded a hearing in April 2010 before the undersigned Veterans Law Judge (VLJ) in which he and his wife presented oral argument in support of his service connection claim for diabetes mellitus. 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 or DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2010 hearing, the VLJ sought to clarify why the Veteran believed he had exposure to Agent Orange in service and what type of treatment for diabetes mellitus he was alleging in service. The VLJ also asked specific questions directed at identifying the criteria for service connection and sought to identify any pertinent evidence not currently associated with the claims, including whether the Veteran had any outstanding records confirming his exposure to Agent Orange in service. The Veteran also volunteered his treatment history and symptoms since service. 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 March 2009 Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. B. Law and Analysis The Veteran alleges that he currently has diabetes mellitus as a result of exposure to herbicides in Vietnam. He contends that although he was never stationed in Vietnam, he was assigned to a plane that brought troops in and out of Vietnam. See videoconference hearing transcript, April 2010. The Veteran reports that while assigned to the 72nd Mechanic's Com at Ramey Air Force Base in Puerto Rico, he flew into a city in Vietnam where he was staffed for almost three weeks. He also relates another instance, while stationed in Wichita Kansas, in which he again flew into Vietnam. Service connection may be granted for any disease 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). In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The U.S. Court of Appeals for the Federal Circuit has held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). VA regulations provide that certain diseases, including type II diabetes mellitus shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e) (2013). 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(a)(6)(iii). In Haas v. Peake, 525 F.3d 1168 (2008), the United States Court of Appeals for the Federal Circuit held that § 3.307(a)(6)(iii) was reasonably interpreted by VA as requiring that a servicemember had actually set foot within the land borders of Vietnam in order to be entitled to statutory presumptions of herbicide exposure and service connection. 38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). "Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau, 492 F.3d at 1377, n4. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. 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) (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). The record shows that the Veteran has a diagnosis of diabetes mellitus type II. However, there is no corroborative evidence that the Veteran was exposed to herbicides during his military service. The Veteran's service personnel records show that he was assigned to the 72nd FMS, Ramey Air Force Base, Puerto Rico as of May 1969 and the 91st Air Refueling Squadron at McConnell Air Force Base in Wichita, Kansas at the time of his release from active duty. The records reflect that his military occupational specialty during service was that of a jet engine mechanic. In April 2010, the Board remanded so that the RO could attempt to determine when the Veteran was reassigned from the 72nd FMS at Ramey Air Force Base to the 91st Air Refueling Squadron at McConnell Air Force Base; and so that attempts could be made to obtain records of the Veteran's unit histories. Thereafter, the RO contacted the National Personnel Records Center (NPRC) and requested any documents showing exposure to herbicides and any records of when the Veteran was reassigned from Ramey Air Force Base to McConnell Air Force Base. The RO also requested any unit history records for the 72 FMS, Ramey Air Force Base, Puerto Rico, and the 91st Air Refueling Squadron at McConnell Air Force Base in Wichita to determine whether these units were involved with flying to and landing within the land borders of Vietnam. The NPRC responded to the first request that there were no records of exposure to herbicides. Regarding the second request, the NPRC noted that unit histories, staff journals, action reports, lessons learned, et cetera, were not maintained at the NPRC. Subsequently, the RO forward its inquiry regarding whether the Veteran could have been involved in flying to and landing in Vietnam to the Air Force Historical Research Agency. The response received was the following: While numerous SAC maintenance personnel were sent TDY to either U-Tapao Royal Thai AFB, Thailand, or Anderson AFB, Guam, to support the KC-135 and B-52 air operations over South and North Vietnam, none of them were sent to Vietnam, as all SAC KC-135 and B-52 aircraft were prohibited from landing at the USAF bases in that country, due to the dangerous nature of their location and the extremely high value of these aircraft to the overall National Defense of the United States. Unless your veteran has exact dates that he went into Vietnam for some very unusual repair reason, I have to discount such a request. There were very few, repeat, very few instances where KC-135s ever landed in VN, and even fewer (if any) times that a B-52 landed in VN. This report was signed by an Archivist at the Air Force Historical Research Agency. The RO thereafter contacted the Veteran in December 2011 to request the time and dates of the alleged exposure to herbicides including any evidence that he physically visited inland the country of Vietnam between January 9, 1962 and May 7, 1975. However, the Veteran did not respond. In January 2012, the RO made a formal finding of lack of information required to corroborate the claim for service connection for in-service herbicide exposure. The record does not show any corroborative evidence that the Veteran had any service in Vietnam, as he alleges. He does not allege exposure to herbicides other than in Vietnam. Therefore, there is no probative evidence that the Veteran was exposed to herbicides. For this reason, the Veteran is not entitled to the benefit of the presumptive regulations concerning his diabetes diagnosis and claimed herbicide exposure. The record also does not establish that the Veteran's diabetes mellitus is otherwise related to his military service. The Veteran's service treatment records are negative for any findings or treatment of diabetes mellitus. All urinalyses conducted in service were negative. The Veteran also denied any personal or family history of diabetes in September 1982. After service, the Veteran filled out health questionnaires dated from November 1988 through December 1996 in which he denied any history of diabetes. In December 1996, the Veteran was found to have hypoglycemia and to be at risk for developing diabetes mellitus. In May 1997 it was noted that he was on a diabetic diet. The first diagnosis of diabetes of record, however, was not until May 1999. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's diabetes mellitus is not related to any event in service. In making this determination, the Board finds it significant that the only evidence of record indicating a possible nexus between any current diabetes mellitus and his military service are the Veteran's assertions. The Board acknowledges that the Veteran is competent to report that he has continued to experience symptoms of diabetes since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The Veteran is also competent to report that he was treated for diabetes in service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he was treated for diabetes mellitus in service and has continued to receive such treatment since service. However, the Board finds that the Veteran's statements are not credible with respect to the onset and continuity of his diabetes. While he testified that he started treatment for diabetes mellitus in 1982, the service treatment records show that he denied any history of diabetes in September 1982. He also denied any history of diabetes on health questionnaires after service dated from 1988 to 1996. Therefore, with respect to the onset of experiencing any diabetes mellitus symptoms or treatment, the probative value of the Veteran's lay assertions is diminished and the Board cannot rely on his statements. Even if the Veteran's statements regarding the onset of the diabetes mellitus were credible, it does not follow that any present diabetes mellitus is necessarily related to any demonstrated continuous symptomatology. While the Veteran is competent to state that he has suffered from symptomatology since service, he is not competent to determine the underlying cause of the symptoms, i.e., diabetes mellitus, etc. The Veteran contends that his current diabetes is related to his service; however, there is no competent medical evidence or opinion to corroborate these contentions. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between an in-service event or injury and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of any diabetes mellitus are merely speculation as to a possible cause as he is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. Additionally, as the Veteran's first diagnosis of diabetes mellitus was in 1999 and the first symptoms of hypoglycemia were in 1996, approximately 9 to 12 years after discharge from service, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's current diabetes mellitus had its onset during active service or are related to any in-service disease, event, or injury. See 38 U.S.C.A. §§ 1110, 1131. Accordingly, the Board finds that the criteria for service connection for diabetes mellitus are not met and the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). ORDER Entitlement to service connection for diabetes mellitus type II is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs