Citation Nr: 1333878 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-45 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1969. He had prior service from March 1965 to August 1967 with the U.S. Naval Reserve Surface Division in drill pay status with several periods of active duty for training (ACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The claims were remanded to obtain outstanding treatment records in May 2013. The Board finds substantial compliance with the May 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era; and, he has not presented any credible evidence of in-service exposure to herbicide agents. 2. Diabetes mellitus, type II, was not present in service or until many years after service and there is no competent evidence of a causal connection between the Veteran's diabetes mellitus, type II, and military service or any incident therein. 3. Prostate cancer was not present in service or until many years after service and there is no competent evidence of a causal connection between the Veteran's residuals of prostate cancer and military service or any incident therein. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in active duty, and may not be presumed to have been incurred in active duty or as a result of Vietnam Era herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Residuals of prostate cancer were not incurred in active duty, and may not be presumed to have been incurred as a result of Vietnam Era herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. With respect to his claims, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. Here, in December 2006 and March 2009 the Veteran was notified via letters of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting a veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that the duty to assist requirement has also been fulfilled. All relevant, identified, and available evidence has been obtained. The Veteran's service treatment records and Virtual VA and Veterans Benefits Management System (VBMS) files have been reviewed. With regards to the Veteran's assertion that he was exposed to herbicides in service as a Vietnam Era serviceman, VA has obtained the Veteran's service personnel records and also conducted the appropriate development to verify whether or not his military service included setting foot on land or serving within the interior waterways inside the territorial confines of the Republic of Vietnam. Towards this end, in a May 2009 Department of the Army Memorandum, the Joint Services Records and Research Center (JSRRC) issued a statement that to date, the JSRRC has found no evidence that indicates Navy ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam, used, stored, tested, or transported tactical herbicides. Additionally, it was noted that the JSRRC cannot document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Therefore it was concluded that the JSRRC could provide no evidence to support the Veteran's claim of exposure to tactical herbicide agents while service aboard a Navy ship during the Vietnam era. The Board thus finds that VA has discharged its duty to assist the Veteran in developing his claim with respect to determining whether or not any presumptions of exposure to herbicide during active service in the Republic of Vietnam are applicable to his case. Furthermore, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. As such, the Board determines that it may proceed with the evidence already associated with the claims file and a Remand to obtain any additional records is not required. Next, the Board acknowledges that a VA medical examination was not provided with respect to the Veteran's claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding to remand an issue for a medical nexus opinion, the Board notes that the Federal Circuit upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by a veteran, in which case an examination may not be required). The Board concludes that an examination is not needed with respect to the issues on appeal. The Veteran's service treatment records do not reflect treatment for diabetes mellitus or his prostrate. In fact, his April 1969 separation examination reflected a normal clinical examination of his genitourinary system and his sugar test was negative. Moreover, although post-service VA records confirm a diagnosis of diabetes mellitus as early as October 2002, the Veteran alleged in an October 2006 optometry record that he had first been diagnosed 8-9 years prior. As such, at earliest he was diagnosed with diabetes mellitus in 1997 or 1998, almost 30 years post service. Moreover, his prostate cancer was diagnosed in April 2003 and he underwent surgery in June 2003, over 30 years following separation from service. Further, although the Veteran asserts that he was exposed to herbicides in service, as will be discussed in more detail below, the evidence weighs against the Veteran's contentions of this exposure. Given the absence of evidence of chronic manifestations of diabetes mellitus or prostate cancer for decades following separation from service, and no competent evidence of a nexus between service and his claim, a remand for a VA examination is simply not warranted. The Board concludes that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). II. Service Connection The Veteran is a Vietnam War Era serviceman who served in the United States Navy aboard a blue-water vessel shown in his records as the USS Ranger (CVA-61). His claimed diabetes mellitus, type II, and prostate cancer are diseases presumptively linked to exposure to herbicides. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995). Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The provisions of § 3.303(b) only apply to the list of chronic disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002); see Mercado-Martinez v. West, 11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Significantly, he has not alleged that any of his claimed disorders occurred during any period of ACDUTRA or INACDUTRA service. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as diabetes mellitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for diabetes mellitus, type II, may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Finally, 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. 38 C.F.R. § 3.307(a)(6) (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus, type II, and prostate cancer shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2013) are also 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); see Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (holding that VA's requirement that a veteran must have been present within the land borders of Vietnam - must have actually set foot therein - at some point in the course of duty in order to be entitled to a presumption of herbicide exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). A veteran who never went ashore from the ship on which he served in the Vietnam coastal waters is not entitled to presumptive service connection. Id. The Veteran has acknowledged throughout the record that although he is a "blue water" Veteran he was exposed to herbicides when personnel and equipment returned to the ship and also when the wind carried the Agent Orange offshore onto his ship. See June 2009 Notice of Disagreement, April 2013 Statement of Representative. He additionally argues in his November 2009 substantive appeal that he should be service-connected for his diabetes mellitus and residuals of prostate cancer due to herbicides because those who served off the shores of Vietnam should be eligible for the same benefits as those who served in country. He makes no specific allegation of being physically in Vietnam. Although he maintains that the presumption of service connection should attach, the Board finds the contrary. Indeed, to the extent that the Veteran implicitly or overtly asserts a theory of service connection based on in-service Vietnam Era herbicide exposure, such a claim is denied outright by the Board as the Veteran has no presumption of exposure to herbicides during active duty. His service records do not establish that he served within the territorial boundaries of the Republic of Vietnam (including 'brown water' service on the interior waterways of the Republic of Vietnam). The Veteran's military records do not establish that he ever set foot within the territorial confines of Vietnam, nor did he ever serve aboard a navy vessel that docked in a Vietnamese port or operated on the inland waterways of Vietnam, nor did he otherwise serve in any area where herbicides were known to be used. Therefore, he is not presumed to have been exposed to herbicides during active duty and is not entitled to any of the presumptions afforded by the law and regulations for service connection for diseases associated with Vietnam War Era herbicide exposure. The Veteran's service records confirm that the Veteran served aboard the USS Ranger (CVA-61) in the Vietnam area of operations from September 1967 to May 1969. Proof of a naval vessel mooring in the Republic of Vietnam while a veteran was serving on board weighs favorably in establishing service within the land borders of the Republic of Vietnam. In this regard, VA's Compensation & Pension service continually updates a non-exhaustive list of U.S. Navy ships that, at some point, operated in the inland waterways of Vietnam or were moored at some location in the Republic of Vietnam. The USS Ranger does not appear on this list. See VA's Compensation & Pension Service Bulletin (most recently updated July 2013). Again, the Veteran makes no allegation that he actually set foot in Vietnam, that his vessel had ever moored in Vietnam, or that his vessel falls under the purview of being a brown-water ship. Turning to the question of service connection for diabetes mellitus, type II, and residuals of prostate cancer by way of presumption of exposure to herbicides, the law is clear that the individual must have served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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) (2013). The totality of the evidence weighs against such service. The Board does not find the evidence sufficient to show that the Veteran had active service in Vietnam. The Veteran does not argue the contrary. There can be no basis to grant service connection based on presumption of exposure to herbicides. Emphasis is placed on the fact that the presumption of exposure and service connection only applies to Veteran's whose duties fell within the specifications set for under 38 C.F.R. § 3.307(a)(6)(iii). Exposure to personnel and equipment that may or may not have been contaminated with herbicides or with wind potentially carrying herbicides onto his ship does not enjoy this presumption. Indeed, short of his assertion of being exposed to contaminated personnel and equipment, or through the wind, which is nothing short of speculation on his part, the record contains no supporting evidence that the Veteran was exposed to Agent Orange or any other herbicide agent during his active service. As discussed above, the Veteran did not serve in Vietnam. As a factual matter, he is therefore not deemed to have been exposed to herbicides in military service and is accordingly not entitled to any regulatory presumptions of service connection based on such exposure. With respect to presumptive service connection under 3.309(a), in light of the lack of medical evidence reflecting a diagnosis of diabetes mellitus, type II, within one year of the Veteran's separation from service, service connection on a presumptive basis for a chronic disorder is also not available. 38 C.F.R. § 3.309(a) (2013). Nevertheless, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disorders and any other incident of active service. The Veteran's service treatment records show no treatment for diabetes mellitus, type II, or a prostate disorder in service. His April 1969 separation examination reflected a normal clinical examination of his genitourinary system and his sugar test was negative. Following his discharge from active duty in May 1969, the records do not show that diabetes mellitus was manifest to a compensable degree within the one-year presumptive period afterwards. Moreover, although post-service VA records confirm a diagnosis of diabetes mellitus, type II, as early as October 2002, the Veteran alleged in an October 2006 optometry record that he had first been diagnosed 8-9 years prior. As such, at earliest he was diagnosed with diabetes mellitus in 1997 or 1998, almost 30 years post service. Moreover, his prostate cancer was diagnosed in April 2003 and he underwent surgery in June 2003, over 30 years following separation from service. Although the Veteran has primarily asserted that his diabetes mellitus and residuals of prostate cancer should be presumptively granted as due to herbicide exposure, he has implied that these disorders may be directly related to service. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent to diagnose disorders such as diabetes mellitus or prostate cancer, as these are not disorders that may be diagnosed by their unique and readily identifiable features, and thus require a determination that is 'medical in nature.' See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran's reported history of continued symptomatology since active service is not found to be credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, as noted above records do not reflect a diagnosis of diabetes mellitus for several decades following separation from service. Moreover, although he filed a claim for educational benefits in August 1969, a claim for diabetes mellitus, type II, was not filed until September 2006. The fact that the Veteran was aware of the VA benefits system, sought out a claim for another benefit, but made no reference to his purported history of diabetes mellitus since service, weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as fact finder to draw a reasonable inference). Had the Veteran been experiencing diabetes mellitus at that time, there seems to be no reason why the Veteran would not have filed a claim for this disorder. The value of the Veteran's assertions are additionally diminished, given that there is clinical evidence indicating that his blood sugar levels were normal at the time he left service. Continuity has not here been established, either through the competent evidence or through the Veteran's statements. With respect to his prostate cancer, the Board has also considered the Veteran's statements regarding continuity of symptoms. However, in a very recent decision the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Prostate cancer is not a disease identified under 3.309(a). Continuity of symptomatology is simply not applicable in the present case. Having determined that the Veteran's alleged clinical history regarding onset and continuity of diabetes mellitus is not credible, and regarding prostate cancer is inapplicable, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's diabetes mellitus or prostate cancer to active duty, despite his contentions to the contrary. No medical professional has established a relationship between these disorders and active duty. Moreover, as noted above, the Veteran is not competent to provide testimony regarding the etiology of his diabetes mellitus or prostate cancer, as they are not diagnosed by unique and readily identifiable features, and do not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's diabetes mellitus or prostate cancer are found to lack competency. Emphasis is placed on the fact that the Veteran has not provided any credible evidence supporting his contentions that he was exposed to herbicides in service. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. Service connection for residuals of prostate cancer, to include as due to herbicide exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs