Citation Nr: 1334590 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 12-10 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for erectile dysfunction, to include on a presumptive basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from November 1963 to November 1967, including service in Thailand from February 1966 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's April 2012 substantive appeal included a request for a Hearing before a member of the Board. However, the Veteran, through his representative, withdrew that request in a November 2012 statement. There are no other hearing requests of record, so the Board deems his request for a hearing withdrawn. 38 C.F.R. § 20.704(e). In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are additional treatment records among the Veteran's paperless records in the Virtual VA system, from the Columbia VA Medical Center (VAMC) covering treatment from April 2001 to September 2008. There are no records for this Veteran in VBMS. FINDINGS OF FACT 1. The Veteran had active service in Thailand during the Vietnam War, and his military occupational specialty was an aircraft mechanic. He did not serve in the Republic of Vietnam, and was not exposed to herbicides in Thailand or otherwise in service. The Veteran's diabetes mellitus first manifest many years after service. 2. Diabetes Mellitus was not incurred in or aggravated by active service, nor may it be presumed to be so incurred or aggravated. 3. The Veteran's erectile dysfunction first manifest many years after service, and was not incurred in or aggravated by active service, nor may it be presumed to be so incurred or aggravated. CONCLUSION OF LAW 1. The criteria for a grant of service connection for diabetes mellitus, including as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for a grant of service connection for erectile dysfunction, including as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Duty to Notify The VA satisfied its duty to notify the Veteran. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. § 5103, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159; provide that VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion of the evidence is to be provided by the claimant, and which part VA will attempt to obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for benefits administered by the VA. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability rating and effective date elements of a claim for service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that following the Veteran's March 2010 claim and prior to the initial adjudication of the claim in July 2010, the RO mailed the Veteran a letter in March 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims. This March 2010 notice satisfied VA's duty to notify the Veteran. The Duty to Assist The VA has also satisfied its duty to assist the Veteran in the development of his claims. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records with the claims file in November 1986, pursuant to an unrelated 1986 claim for service connection of the residual disability from an in-service hernia repair. The RO associated the Veteran's service personnel records with the claims file in June 2010, in development of the claims currently on appeal. The Veteran has not reported or submitted private treatment related to the issues of service connection for diabetes and erectile dysfunction. The RO further associated the Veteran's Columbia VAMC treatment records with his claims file and Virtual VA. The Board is cognizant that the VA also has a duty to obtain "relevant" Social Security Administration (SSA) records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Here, the private treatment records filed with the Veteran's 1986 claim unrelated to the issues on appeal show a 1983 diagnosis for multiple sclerosis, and October 1986 award for SSA benefits based on multiple sclerosis. As the Veteran was diagnosed in 1983, and receiving SSA benefits more than 20 year prior to developing diabetes and 15 years prior to developing erectile dysfunction; the SSA records do not appear to be relevant to the issues on appeal. 38 U.S.C.A §5103A(d) also includes a duty to provide the claimant with a VA examination when such medical information is necessary to make a decision on the claim. However, the duty to provide a medical examination in a service connection claim is limited to situations that meet the criteria of 38 C.F.R. § 3.159(c)(4)(i). Thus, the VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board reviews the RO's use of that discretion under McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent recurrent symptoms of a disability, (2) evidence establishing that an injury or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or another service connected disability; but (4) insufficient competent medical evidence on file to make a decision on the claim. McLendon, 20 Vet.App. at 81 (2006). Here the Veteran's personnel records reveal no indication that the Veteran was ever exposed to herbicides, in Thailand or otherwise. The Veteran has not argued any basis other than herbicide exposure for service connection of diabetes and erectile dysfunction in either his March 2010 claim, March 2010 VCAA response, October 2010 notice of disagreement, or April 2012 substantive appeal. Further, service treatment records show no indication for the in-service onset of either diabetes or erectile dysfunction. The Veteran is required to show in-service injury or disease in order to trigger the VA's duty to assist him with a VA examination under McLendon. As such, there is no duty to provide a VA examination. As VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or § 38 C.F.R. 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Accordingly, the Board will address the merits of the claim. II. The Merits of the Claim The Veteran seeks service connection for diabetes and erectile dysfunction, including as due to exposure to herbicides in Thailand during the Vietnam Era. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain (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, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of establishing service connection for a disability resulting from exposure to herbicides, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to herbicides, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or 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. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In other words, for the purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Also presumed to have been exposed to such agents during active service are individuals who, during the Vietnam era, served in the United States Air Force at certain Royal Thai Air Force Bases, including Takhli, as a security policemen, security patrol dog handler, or member of a security police squadron, or were otherwise near the base perimeter. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(q). M21-1MR Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(q) provides that this determination should be made on a facts found or direct basis. When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) 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) are also satisfied. 38 C.F.R. § 3.309(e). To be service connected under this presumption, diabetes, shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A claim of presumptive service connection for a chronic condition could still prevail in spite of diagnosis beyond the one year presumptive period with a showing of continuity of related symptomatology after discharge. 38 C.F.R. §§ 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Presumptive Service Connection In his March 2010 application for service connected compensation, the Veteran specifically sought presumptive service connection for diabetes and erectile dysfunction, and argued that his exposure to herbicides while serving in Thailand during the Vietnam Era caused these conditions. As discussed above, diabetes is a disease subject to presumptive service connection under 38 C.F.R. § 3.309(e). The Veteran's Columbia VAMC treatment records verify his September 2008 diagnosis for diabetes. The Columbia VAMC treatment records also show diagnosis for erectile dysfunction as early as April 2001. However, erectile dysfunction does not appear on the list of diseases associated with herbicide exposure at 38 C.F.R. § 3.309(e), and therefore that claim for service connection must be denied on a presumptive basis. Having determined that the Veteran has a current diagnosis for diabetes, which is subject to presumptive service connection under 38 C.F.R. § 3.309(e), the only remaining question before the Board is whether the Veteran was exposed to herbicides at Takhli RTAFB. Also as discussed above, exposure to herbicides in Thailand requires evidence as to work along the perimeter of a RTAFB. The Veteran's service personnel file reflects that he served from February 1966 to December 1966 at Takhli RTAFB. This service falls during the Vietnam Era as defined at 38 C.F.R. § 3.307(a)(6)(iii); and, as discussed above, Takhli is on the list of RTAFBs where herbicides were used along the perimeter. Therefore the relevant question is whether the Veteran served on the perimeter of Takhli RTAFB. In this case, there is conflicting evidence on this issue which must be weighed. According to his DD Form 214 and personnel file, the Veteran's military occupational specialty was that of an aircraft mechanic. This would suggest that he did not work on the perimeter of Takhli RTAFB. However, the Veteran has argued in his October 2010 notice of disagreement, that despite his military occupational specialty, he served on the perimeter of Takhli RTAFB. 38 U.S.C. § 1154(a) requires that the VA give all due consideration to all pertinent medical and lay evidence in evaluating a claim to disability. The provisions for herbicide exposure in Thailand at RTAFBs specify that the Veteran must have worked near the base perimeter, and the Veteran has offered lay testimony that he indeed worked on Takhli RTAFB's perimeter. To give this evidence all due consideration, the Board must analyze its credibility and probative value, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for rejection of any material evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). The Veteran's lay testimony is "competent" as to matters that he has actually observed or sensed and are within his "personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is therefore competent to provide lay evidence as to factual matters, such as his location on Takhli RTAFB. However, determinations of credibility are within the province of VA and must be made accordingly. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran's service personnel file supports the Veteran's assertions to the extent that he was stationed at Takhli RTAFB from February 1966 to December 1966. The service personnel file includes his DD214, foreign service records, and chronological listing of service; which further demonstrate his work at Takhli RTAFB exclusively as an aircraft mechanic. An aircraft mechanic would have worked indoors in the hanger, and on the flight line. The Veteran reported as much in his November 2007 claim for service connection of hearing loss, reporting work on "a number of flight lines," with "one and two engine jet fighter planes." This is inconsistent with the Veteran's report of working on the perimeter of Takhli RTAFB in his October 2010 notice of disagreement. Further, the October 2010 notice of disagreement was internally inconsistent as it reported both working on the perimeter of Takhli RTAFB and "on the air field or hangers." The Veteran has alternatively argued on his March 2010 VCAA response that he was secondarily exposed to herbicides by working on contaminated aircraft. Unfortunately, there is no statutory or regulatory presumption of herbicide exposure based on working with contaminated aircraft. In the evaluation of the evidence, VA adjudicators may properly consider internal inconsistencies, facial implausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1447, 1481 (Fed. Cir., 1997). Here the Veteran's lay testimony in his March 2010 VCAA response and October 2010 notice of disagreement is inconsistent with the information in his service personnel records and his November 2007 claim for service connection of hearing loss. The information in the service personnel file is completely in keeping with the other evidence of record, and in no way indicates work on the perimeter of the Takhli RTAFB. The assertion in the October 2010 notice of disagreement is further internally inconsistent, and must be considered unreliable. As such, the Veteran's assertion as to work on the perimeter of Takhli RTAFB is not credible. The Board finds that the Veteran's service personnel file is the most probative evidence of record as to whether the Veteran worked on the perimeter of Takhli RTAFB. Therefore, he cannot be presumed to have been exposed to herbicides in Thailand. The Veteran's service personnel records further demonstrate that he did not serve in the Republic of Vietnam, and he is therefore not entitled to the presumption that he was exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). The Board has also considered presumptive service connection for diabetes under 38 C.F.R. § 3.309(a). However, the Columbia VAMC treatment records show September 2008 as the earliest possible diagnosis for diabetes, with merely impaired glucose readings from November 2006 to September 2008 prior to that date. As the Veteran separated from service in 1967, this fails to satisfy the requirement at 38 C.F.R. § 3.307 for manifestation within one year, or the alternate requirement at 38 C.F.R. § 3.303(b) and in Walker, 708 F.3d at 1336 for a continuity of symptoms after service. Therefore the evidence of record does not support a finding of presumptive service connection under 38 C.F.R. § 3.309(a). Further as erectile dysfunction is not a disease listed at either 38 C.F.R. § 3.309(e) or 38 C.F.R. § 3.309(a), presumptive service connection for erectile dysfunction must be denied. Direct Service Connection Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, the fact that the veteran does not meet the requirements of 38 C.F.R. § 3.309 does not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of direct causation, showing that his in-service exposure to an herbicide or other in-service injury caused any current disorders. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). As discussed above, the requirements for direct service connection are laid out in 38 C.F.R. § 3.303 and Shedden, 381 F.3d 1163. The Board will address each of the three elements of direct service connection in turn. Initially, as discussed above, The Columbia VAMC treatment records establish April 2001 diagnosis for erectile dysfunction and September 2008 diagnosis for diabetes. Therefore the Veteran has current disabilities, and has satisfied the first element of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Next, the Board must address the element of an in-service event or injury. The Veteran's service treatment records are completely silent as to any in-service genitourinary or endocrinological signs or symptoms which could be attributed to the onset of either erectile dysfunction or diabetes. In fact, the Veteran's September 1967 separation examination report recorded normal results of clinical evaluation of the endocrine and genitourinary systems. Further, the Veteran has not argued that his diabetes or erectile dysfunction had their onsets in service; in fact, his March 2010 VCAA response and October 2010 notice of disagreement specified his belief that these diseases were caused by his exposure to herbicides in Thailand. Again, the Columbia VAMC treatment records show the onset for both conditions in the last 12 years, nearly 35 years after separation from service. Therefore the evidence of record does not support a finding that the Veteran had any genitourinary or endocrinological problems or symptoms in service, and fails to satisfy the second part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Finally, the evidence of record must show that the Veteran's current diagnosis is related to an in-service injury, event, or disease. As mentioned above, lay evidence may demonstrate the presence of any of the elements for service connection. Davidson, 581 F.3d at 1316. However, the Veteran has consistently asserted that it was his exposure to herbicides in Thailand that led to his development of diabetes and erectile dysfunction, and has never cited any other facet of his service as linked to the current diagnoses for diabetes and erectile dysfunction. The Columbia VAMC treatment records include no medical nexus opinions for either condition. Therefore the evidence of record does not support a finding that either the Veteran's diabetes or his erectile dysfunction are related to an in-service injury, event, or disease; and fails to satisfy the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claims, the evidence is not in equipoise, and there is no basis to apply it. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly service connection for diabetes is denied, and service connection for erectile dysfunction is denied. ORDER Service connection for diabetes mellitus is denied. Service connection for erectile dysfunction is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs