Citation Nr: 1333281 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-35 878 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for a urinary disorder, claimed as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2007 rating decision in which the RO, inter alia, denied the Veteran's claims for service connection for diabetes mellitus, hypertension, and a urinary disorder. In April 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issue in July 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2007. In September 2011, the Board remanded the claims on appeal to the RO for further development. After accomplishing further action, the RO continued to deny the claims (as reflected in an August 2012 supplemental statement of the case), and returned these matters to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claims. A review of the documents in such folder reveals no additional evidence, other than the September 2013 Appellant's Brief, pertinent to the Veteran's claims. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Diabetes mellitus is among the diseases for which VA's Secretary has recognized there exists an etiological relationship with herbicides exposure, to include Agent Orange. 3. The objective evidence does not establish that the Veteran is entitled to a presumption of Agent Orange exposure or was actually exposed to Agent Orange during his period of service, as alleged; in fact, the objective evidence on this point weighs against a finding of actual exposure. 4. Diabetes mellitus is not shown in service or for many years thereafter, and there is no persuasive medical evidence or opinion establishing a relationship between this disability and the Veteran's service. 5. As service connection for diabetes mellitus has not been established, there is no legal basis for an award of service connection for hypertension or a urinary disorder on a secondary basis.. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, claimed as due to herbicide Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The claim for service connection for hypertension, as secondary to diabetes mellitus, is without legal merit. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. The claim for service connection for a urinary disorder, as secondary to diabetes mellitus, is without legal merit. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection for diabetes mellitus, hypertension, and a urinary disorder. Further, the letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The letter also provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter meets the VCAA's content and timing of notice requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, as well as extensive private treatment records. In addition, pursuant to the Board's September 2011 remand, the RO obtained the Veteran's service personnel records. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that no further RO action in connection with any claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection A. Factual Background A March 1962 service entrance examination was negative for any relevant abnormalities and no sugar was found in the Veteran's urine. The Veteran denied having sugar in his urine in an accompanying Report of Medical History (RMH). A January 1965 service discharge examination was negative for any relevant abnormalities and no sugar was found in the Veteran's urine. The Veteran denied having sugar in his urine in an accompanying RMH. The remaining service treatment records were negative for complaints, findings, or diagnosis related to diabetes mellitus. Service personnel records indicate that the Veteran was assigned to Inchon, Korea from May 1963 to May 1964 and that he was assigned to the Rifle 14th Infantry as a personnel specialist. Private treatment records dated from 2002 through 2006 that have been associated with the Veteran's claims file show diagnoses and treatment for diabetes mellitus, hypertension, and an overactive bladder. In several statements, the Veteran's spouse and his representative indicated that the Veteran's diabetes is due to his exposure to Agent Orange while performing his duties while stationed in Korea; and that hypertension and a urinary disorder are due to the diabetes mellitus. B. Analysis The Veteran and his wife contend that his diabetes mellitus was caused by his exposure to Agent Orange while serving in Korea. In addition, he claims that his diabetes mellitus caused or aggravated his hypertension and urinary disorder; direct service connection has not been alleged for these conditions. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, to include diabetes mellitus, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for diabetes mellitus), 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; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. The above-cited provisions specifically apply to Vietnam Era veterans, and have been extended to veterans who served near the Korean demilitarized zone (DMZ). See 38 C.F.R. § 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv). Service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. As noted, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. The Board notes, however, the Veteran's entire period of active military service was prior to the known use of Agent Orange or other herbicides in Korea. See Herbicide Exposure and Veterans With Covered Service in Korea, 76 Fed. Reg. 4,245-50 (Jan. 25, 2011) (specifying that covered service was between April 1, 1968, and August 31, 1971, in certain units operating in or near the Korean Demilitarized Zone (DMZ) in an areas in which herbicides are known to have been applied during that period. As noted above, service personnel records establish that the Veteran served in Inchon, Korea from May 1963 to May 1964. The service personnel records do not document any additional foreign service, to include any service in Vietnam. As laypersons, the Veteran and his wife are competent to report on matters observed or within their personal knowledge, and thus competent to relate any alleged occupational duties. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994), and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). In this case, there simply is no persuasive, objective evidence to support the Veteran's assertion that he was actually exposed to herbicides in Korea. As, on these facts, neither presumed nor actual in-service exposure to herbicides, to include Agent Orange, is warranted or shown, the Board has, like the RO, considered the claim for service connection for diabetes mellitus under other theories of entitlement. The Board also finds, however, that no other legal theory provides a basis for an award of service connection for the disability at issue. Here, the Veteran's service treatment records reflect no complaints or findings pertinent to, or diagnosis of, diabetes mellitus during service. No abnormalities with respect to such condition was noted in the January 1965 service discharge examination and the Veteran has not contended that his diabetes mellitus was present during service. The post-service clinical evidence contains a diagnosis of diabetes mellitus in December 2003. Absent competent evidence indicating diabetes mellitus within one year of the Veteran's separation from service, the Board finds that service connection may not be awarded on a presumptive basis as a chronic disease defined in 38 C.F.R.§ 3.309(a). The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability-in this case, approximately 38 years-is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, the lack of any evidence (or even lay assertions) of symptoms during service which have continued to the present day preponderates against awarding service connection on the basis of continuity of symptomatology. See 38 C.F.R. § 3.303(b). There also is no competent evidence or opinion even suggesting that there exists a medical nexus between the diabetes mellitus diagnosed so many years after the Veteran's discharge and any incident of service. None of the medical treatment records reflect any such opinion or even comment to that effect, and neither the Veteran, his wife, nor his representative have presented or identified any such existing medical evidence or opinion. Furthermore, on this record, VA is not required to obtain a medical opinion addressing the etiology of the Veteran's diabetes mellitus. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has a current disability (diabetes mellitus), but there is nothing to indicate that such disability may be associated with an event, injury, or disease in service, aside from the Veteran's own unsubstantiated assertions.. As previously discussed, the evidence does not persuasively establish in-service herbicide exposure, or any other in-service injury or event to which his diabetes mellitus is purportedly related. The Veteran also does not contend that he experienced any symptoms related to this disability during service or for many decades after service. Additionally, there is no medical or other competent evidence that even suggests that the current diabetes mellitus is in any way related to service. In the absence of evidence of an in-service disease, injury, or event, a remand of the above-referenced claim for an examination or to obtain an opinion as to the etiology of the Veteran's claimed diabetes mellitus would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's diabetes mellitus and his service would necessarily be based solely on the Veteran's unsubstantiated assertions regarding what occurred in service (here, herbicide exposure) advanced in support of this claim . The Board points out that a medical opinion premised on an unsubstantiated history has no probative value. See, e.g., Reona l v. Brown, 5 Vet. App. 458, 461 (1993); Swan v. Brown, 5 Vet. App. 229, 233 (1993). Simply stated, arranging for the Veteran to undergo VA examination or otherwise obtaining a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002). Therefore, VA has no obligation to obtain any medical opinion commenting upon the etiology of the Veteran's diabetes mellitus. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Furthermore, as for any direct assertions by the Veteran, his wife and/or representative that there exists a medical relationship between the Veteran's diabetes mellitus and service, the Board finds that no such assertions provide persuasive support for the claim. In this regard, the Board emphasize notes that the matter of the etiology of the disability here at issue is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). The Board acknowledges that lay assertions may serve to support a claim for service connection with respect to the occurrence of lay observable events or the presence of disability or symptoms of disability subject to lay observation (see, e.g., Jandreau v. Nicholson, 492 F.3d. 1372 (2007)), and that lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)). However, in this case, the specific matter of the etiology of the Veteran's diabetes mellitus falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 (providing that lay persons are not competent to diagnose cancer). As none of the identified individuals is shown to be other than layperson without appropriate training and expertise, none is competent to render a probative (i.e., persuasive) opinion on the complex medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, lay assertions of medical nexus have no probative value. Furthermore, as for the matters of service connection for hypertension and/or a urinary disorder on a secondary basis, the Board notes that, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, however, as service connection for diabetes mellitus has not been established, there is no legal basis for award of secondary service connection for any disability. Accordingly, the claims for service connection for hypertension and for a urinary disorder, each as secondary to diabetes mellitus, are without legal merit. See For all the foregoing reasons, each claim for service connection must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of- the-doubt doctrine. The Board notes, however, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus, type II, claimed as due to Agent Orange exposure is denied. Service connection for hypertension, claimed as secondary to diabetes mellitus, type II is denied. Service connection for a urinary disorder, claimed as secondary to diabetes mellitus, type II is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs