Citation Nr: 1334576	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  11-21 204	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin



THE ISSUE

Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure.  



REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs



ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel



INTRODUCTION

The Veteran had active service from April 1968 to April 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

Diabetes mellitus was not manifested in service or in the first post-service year, and the preponderance of the evidence is against a finding that the Veteran's current diabetes mellitus is related to an event, injury, or disease in service.  


CONCLUSION OF LAW

Service connection for diabetes mellitus is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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; (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication.  A November 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  The November 2009 letter also informed him of degree of disability and effective date criteria.  It is not alleged that notice in this case was less than adequate.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, and post-service treatment records.  

The Board acknowledges that the Veteran was not provided with an examination regarding his claim.  However, the Board finds that VA's duty to provide the Veteran with an examination for this claim has not been triggered.  Specifically, the Veteran alleges that his diabetes is due to herbicide exposure, and there is no indication that the claimed disability may be related to an in-service event or a disease manifested in accordance with presumptive service connection regulations, nor is there any competent probative evidence that any claimed disability may be related to service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); see also 38 C.F.R. § 3.159(c)(4)(i).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

B. Legal Criteria, Factual Background, and Analysis

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  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 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 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).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

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.  The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  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 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a).  

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 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 U.S.C.A. § 1113, 38 C.F.R. § 3.307(d), are also satisfied: AL amyloidosis, type II diabetes mellitus, chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).  

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).  

Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

At the outset, the Board notes that the evidence shows the Veteran has been diagnosed with diabetes mellitus.  Accordingly, the first element of service connection is met.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  

In this case, the Veteran asserts presumptive service connection under 38 C.F.R. § 3.309(e) as disorders caused by exposure to herbicides.  Specifically, he contends that while stationed at Ft. Dix in New Jersey, he traveled to McGuire Air Force Base (also in New Jersey) on a regular basis whenever a planeload of soldiers returned from Vietnam, and that he would handle their bags that were purportedly contaminated with Agent Orange; he does not allege that he served in the Republic of Vietnam or that he stepped foot in the Republic of Vietnam.  

The Veteran's DD Form 214 shows his decorations and awards include the National Defense Service Medal and the Good Conduct Medal; there are no decorations denoting service in Vietnam.  

Personnel records show that the Veteran was stationed at Ft. Dix from June 1968 to March 1969, and stationed in Germany from April 1969 to April 1970.  

In light of the above, the Veteran's claim seeking service connection for diabetes is not within the purview of 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309, and to substantiate the claim he must present credible and competent supporting evidence both that he was exposed to herbicides, and that such exposure caused his diabetes.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).  

Service treatment records do not show evidence of diabetes in service.  The evidence shows diagnoses for diabetes as early as February 2008, although the Veteran stated in his October 2009 original claim for service connection that he was diagnosed with diabetes six to seven years prior (i.e., 2002 or 2003).  Even conceding for the limited purpose of this appeal that the Veteran was diagnosed with diabetes in 2002, such shows that he was diagnosed with the disease approximately 32 years after his separation from service.  As there is no evidence or allegation the disease became manifest to a compensable degree within the first year after his discharge from service, presumptive service connection for a chronic disability under 38 C.F.R. § 3.303(a) is not available.  The Veteran has not asserted, nor does the evidence show, that he had continuous symptoms since his separation from service, so consideration of service connection as a chronic disorder under 38 C.F.R. § 3.303(b) is also not applicable.  

To the extent the Veteran alleges secondary exposure based on handling bags of soldiers that returned from Vietnam that were purportedly exposed to Agent Orange, there is no presumption of such exposure.  While the Veteran may be competent to state that he handled the bags of soldiers that returned from Vietnam, he is not competent to state that the bags carried or were contaminated with Agent Orange.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Court in Bardwell v. Shinseki, 24 Vet. App. 36 (2010) held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service.  Here, as noted above, the Veteran does not contend, and his service records do not show, that he served in Vietnam.  Rather, as indicated, he asserts that he had Agent Orange exposure due to duties he performed at McGuire Air Force.  Thus, the Board finds his statements are not competent evidence that he was exposed to an herbicide during his service.  See Bardwell.  

To establish service connection for his diabetes under these circumstances, the Veteran must show that the disease is somehow otherwise related to his active service.  Post-service treatment records note the diagnosis of diabetes, but there is no competent evidence in the record to suggest that the disease is or may be related to the Veteran's service.  No medical professional has ever suggested that the Veteran's diabetes was related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion.  To the extent the Veteran relates his diabetes to his service (to include herbicide exposure), the Board finds that such is not competent evidence.  The matter of a nexus between a current disability such as diabetes and service is (in the absence of continuity of symptomatology which the Veteran is not alleging) a question that is beyond lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  


ORDER

Service connection for diabetes mellitus is denied.  



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs