Citation Nr: 1331874 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-00 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus type 2, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetic neuropathy of the lower extremities, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a May 2011 hearing by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. Subsequent to certification of the Veteran's appeal to the Board in May 2011, additional VA treatment records were associated with the claims file in electronic format. Review of these records indicates that they are cumulative and redundant of the evidence already of record. Accordingly, the Board finds that these records do not require referral of the appeal to the Agency of Original Jurisdiction, and that appellate adjudication may proceed. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam. 2. The evidence of record does not relate the Veteran's diagnosed diabetes mellitus type 2 to his military service. 3. The evidence of record does not establish a diagnosis of diabetic neuropathy. CONCLUSIONS OF LAW 1. Diabetes mellitus type 2 was not incurred in, aggravated by, or in any way related to service, nor may it presume to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Diabetic neuropathy was not incurred in, aggravated by, or in any way related to service, nor may it presume to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A November 2006 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA learned through internal inquiry in January 2011 that the Social Security Administration had no records pertaining to any claims filed by the Veteran for benefits from that agency. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were not conducted as the record posed no questions of medical fact relating to the issues on appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts 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 Board hearing the VLJ noted the elements that were lacking to substantiate the Veteran's claims. The Veteran was assisted at the hearing by an accredited representative who with the VLJ asked questions to ascertain the Veteran's disabilities' history and etiology. The VLJ identified the types of evidence the Veteran could submit to help substantiate his claims, and asked the Veteran to identify any sources of outstanding, pertinent evidence, but none was identified by him or his representative. The hearing focused on the elements necessary to substantiate the claims and the pertinent regulations relating to presumptive service connection based on herbicide exposure. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran seeks service connection for diabetes mellitus and diabetic neuropathy. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). 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. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(6)(iii) (2013). The phrase "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. See 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2013). The decision of the Court of Appeals for the Federal Circuit in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged herbicide exposure. Haas, 525 F.3d at 1193-1194. If a veteran were exposed to an herbicide agent during active military service, certain diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); 74 Fed. Reg. 21,258 (May 7, 2009); 75 Fed. Reg. 53,202 (Aug. 31, 2010). This list includes diabetes mellitus type 2 if manifest to a compensable degree at any time after service, and early-onset peripheral neuropathy, if manifest to a compensable degree within one year of service separation. Id.; see also 78 Fed. Reg. 54,763 (Sept. 6, 2013). 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 will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The benefit of the doubt rule is inapplicable when the preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran has asserted that he was exposed to herbicides in service during his service on the U.S.S. Enterprise. He claims his diabetes resulted from this herbicide exposure, and that his diabetic neuropathy resulted either directly from the herbicide exposure or was proximately caused by his diabetes. As a threshold issue, VA and private treatment records reflect a diagnosis of and treatment for diabetes mellitus type 2, as well as certain diabetic complications (retinopathy, nephropathy, and erectile dysfunction), but does not reflect a current diagnosis of diabetic neuropathy. The lower extremity neurologic symptoms such as numbness and tingling described by the Veteran throughout the appeal were diagnosed by the January 2007 VA examiner as lower extremity radiculopathy related to the Veteran's service-connected lumbar spine disability. Of note, the Veteran's lumbar spine disability is rated as 20 percent disabling and his radiculopathy of the left lower extremity is rated as 60 percent disabling. See November 2012 Rating Decision. In any event, the evidence establishes that the Veteran's lower extremity neurologic symptoms are not of diabetic etiology; no diagnosis of diabetic neuropathy is shown in the record. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Without competent evidence of a current diagnosis, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetic neuropathy. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the Veteran's claim for service connection for diabetes mellitus, review of his Department of Defense Form 214 (DD-214) reflects that he had 1 year, 11 months, and 27 days of active duty service; 1 year, 11 months, and 5 days of that service as "foreign and or sea service." Accordingly, it is likely that the Veteran was stationed aboard the Enterprise for the entirety of his military service after initial training. The National Personnel Records Center (NPRC) has determined that during the period of the Veteran's military service from March 1972 to March 1974, the Enterprise was in the official waters of the Republic of Vietnam for short periods between October 1972 to March 1973. However, the NPRC noted in December 2006 that there were no records showing that the Veteran was exposed to herbicides. The Board has also reviewed the U.S. Navy's Dictionary of American Naval Fighting Ships (DANFS), which does not reflect that the Enterprise docked in Vietnam during the Veteran's time on that ship, or, as the Veteran testified during his Board hearing, traveled further inland than aircraft carriers normally travel. Rather, the DANFS indicates that the Enterprise was located near Yankee Station, which is located off the Vietnam coast, consistent with the NPRC's findings as to the dates the Enterprise was in the official waters of Vietnam, but not docked at the shoreline. Moreover, the Veteran's service personnel records do not establish in-country service in Vietnam, for the purposes of the controlling regulations during that period; no in-country dates are listed on the DD-214 and no other personnel record establishes that the Veteran went ashore from the Enterprise. Similarly, the service treatment records do not establish in-country Vietnam service. A November 1972 service treatment record reflects that the Veteran injured his back after jumping from a pier to a pier-side camel, a type of pontoon boat, in June 1972. In contrast, a February 1974 record indicates the Veteran's report that the back injury, listed as having occurred in July 1972, happened when the ship was in port in San Diego, California. Regardless, on land visitation is not established. During his Board hearing, the Veteran denied setting foot on land in Vietnam, but expressed his belief that when the ship was in the official waters of Vietnam, it was the same as his having set foot on land there since he was receiving combat pay. Even if the Veteran received combat pay, VA regulations do not presume exposure to herbicides based on combat pay. The Veteran also alleged that during the ship's time in official waters, he and fellow boatswain mates would take in supplies onto the flight deck that were tainted with a material he was told was weed killer or brush killer and he felt might have been herbicides; he also testified that he wondered whether herbicides traveled through vents and airways of the ship. The Veteran's testimony is acknowledged. However, his lay perception of receiving materials or possibly being exposed to airborne pathogens cannot be accepted as proof that he was exposed to herbicides during his service aboard the Enterprise. His statements are speculative and therefore not probative. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, even though diabetes mellitus type 2 is among the diseases listed as presumptively related to herbicide exposure, because the evidence does not establish that the Veteran had such exposure, service connection for diabetes mellitus type 2 on a presumptive basis is not warranted. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, service connection on a direct basis is not warranted in this case either. The evidence fails to show that that diabetes had its onset in service, manifest to a compensable degree within a year after service, and does not establish a nexus between the Veteran's diabetes mellitus type 2 and active service. Service treatment and personnel records do not reflect such and no post service medical reports show disease manifested to a compensable degree within a year of service. Additionally, the record does not contain a nexus opinion by either a VA or private clinician noting such a relationship. The Veteran's assertions in this regard are not probative as the evidence does not establish that he has received medical training to offer such an opinion, as opposed to lay observations, as statements to the etiology of medical conditions like diabetes are not within the purview of laypersons. Compare Jandreau, supra, to Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To the extent that the Veteran asserted his diabetes was related to in-service herbicide exposure because he and his brother (both Vietnam era veterans) were the only family members to carry a diabetes diagnosis, a November 2002 private treatment record contradicts this statement, as it notes that the Veteran's late father also had diabetes. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). Accordingly, service connection for diabetes mellitus type 2 is also not warranted on a direct basis. The preponderance of the evidence is against the Veteran's claim. There is no doubt to be resolved, and service connection for diabetes mellitus is also not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for diabetes mellitus type 2 is denied. Entitlement to service connection for diabetic neuropathy is denied. ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs