Citation Nr: 1334695 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-36 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to dependency, indemnity and compensation (DIC) on the basis of service connection for the cause of the Veteran's death. 2. Entitlement to service connection for diabetes mellitus, type II, with diabetic neuropathy and erectile dysfunction, for accrued benefits. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1967. He died in June 2006. The appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Cleveland, Ohio, regional office (RO) of the Department of Veterans Affairs (VA). These matters were previously before the Board in August 2012 and May 2013, but were remanded for additional development. The requested development has been completed, and the appeal has been returned for further consideration. The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of entitlement to DIC on the basis of service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Evidence in the claims file at the time of the Veteran's death shows that diabetes mellitus was first identified many years after service, and does not show in-service exposure to herbicides or otherwise link diabetes to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, with diabetic neuropathy and erectile dysfunction, on an accrued basis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5121(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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) (West 2002); C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In this case, the appellant was provided with a letter in October 2006 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided prior to the initial adjudication of her claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. This duty is limited due to the nature of the claim, as claims for accrued benefits are limited to the evidence in the folder or constructively in possession of VA at the time of the Veteran's death. 38 C.F.R. § 3.100(d)(4). However, the Veteran's service treatment records and personnel records have been obtained. The two remands provided the appellant an opportunity to submit additional authorization to obtain private medical records of which VA had notice prior to the Veteran's death, but the appellant did not respond. VA treatment records have been obtained, and the Veteran was afforded VA examinations prior to his death. The appellant declined her right to a hearing. There is no indication that there is any relevant evidence outstanding in this claim that is constructively in the possession of VA, and the Board will proceed with consideration of the appeal. Service Connection for Accrued Benefits The appellant contends that the Veteran developed diabetes with complications such as neuropathy and erectile dysfunction as a result of active service. She argues that he was exposed to herbicides such as Agent Orange in service, either in Vietnam or Panama. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. This method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Diabetes mellitus is one of the disabilities so noted. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) If diabetes mellitus becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of diabetes mellitus during 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. A lay person is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath; they are not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A veteran who during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "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. If a veteran was exposed to an herbicide agent as defined by 38 C.F.R. § 3.307(a)(6) during active military, naval, or air service, then type 2 diabetes shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumptions, a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The record shows that the Veteran died in June 2006. The appellant filed a claim for accrued benefits in August 2006. Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2013); 38 C.F.R. 3.1000(a) (2013). Moreover, an "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000(c) (2013). The appellant's claim was timely filed. "For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). After careful review of the evidence contained in the claims folder and the electronic record, the Board finds that entitlement to service connection for diabetes and its complications is not established under any theory of entitlement. The appellant contends that the Veteran served in Vietnam. She has submitted a photocopy of what is purported to be the Veteran's diary in which the entry "Went to Vietnam" is written on July 9, 1966. There were no entries in the diary subsequent to this date submitted. In addition, this record was received at the time of the appellant's claim for accrued benefits. Inasmuch as it was not in the claims file at the time of the Veteran's death, it cannot be considered in conjunction with the claim for accrued benefits. However, the Veteran's personnel records were in the claims folder. They are extensive and appear to be complete. The Veteran's DD 214 does not show that he was awarded the Vietnam Service Medal or any other decoration that would indicate he served in Southeast Asia. The personnel records include the Veteran's records of assignments, which do not reflect Vietnam service. These records do show that the Veteran served in the Panama Canal Zone from May 1965 to December 1966, arriving six months after enlistment. These dates coincide closely with the one year and six months of foreign service recorded on the DD 214. No evidence of temporary duty in Vietnam is in the file. There is a special order pertaining to the Veteran dated in October 1966, which was issued by the headquarters of the Veteran's unit in the Canal Zone. The Veteran was next assigned to Fort Campbell, Kentucky in December 1966. The service treatment records are also negative for any entries recorded in Vietnam. The claims folder also contains the transcript of an August 1997 hearing in which the Veteran describes his duties during service. He describes basic training followed by assignment to Panama. He also describes returning to Kentucky afterwards. While the Veteran does not deny having been to Vietnam, he does not include service there in his description of his military history. Even if the diary entry could be considered, the Veteran's official military records are far more probative than a photocopy from a datebook purporting to be the Veteran's, and the official records do not show Vietnam service. As the Veteran does not have Vietnam service, he is not presumed to have been exposed to herbicides such as Agent Orange. It follows that service connection for diabetes on a presumptive basis may not be awarded. 38 C.F.R. §§ 3.307, 3.309(e). The Board has also considered the contentions of the appellant that the Veteran was exposed to herbicides in Panama, but the preponderance of the evidence of record at the time of the Veteran's death shows otherwise. At a September 2005 VA Agent Orange examination, the Veteran stated that he was in Panama in 1965 and was involved in spraying herbicides. He said he drove trucks that were used for fogging and used the herbicidal spray. He also said that he sprayed the herbicide in his bunk area by hand. The appellant has also submitted a copy of an August 1999 newspaper article and other material from the internet that alleges Agent Orange was used in Panama. These materials were received after the death of the Veteran and may not be considered. 38 C.F.R. § 3.1000(a). While the Veteran was competent to report his duties; he never indicated why he believed that the chemical used was Agent Orange or, more specifically, 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; or picloram, which are the chemicals contained in the herbicides that have been associated with the diseases listed at 38 C.F.R. § 3.309(e). As a lay person he lacked the expertise to analyze the substances he used and say they were Agent Orange or related herbicides. In the absence of any competent evidence in the claims folder at the time of the Veteran's death to show that he was exposed to the chemicals listed at 38 C.F.R. § 3.307(a)(6), it follows that his diabetes mellitus may not be presumed to be associated with the herbicides the Veteran claims to have used in service. The Board has also considered service connection under other theories of entitlement. However, the service treatment records are negative for evidence or diagnoses of diabetes mellitus, and his October 1967 discharge examination and history do not note this disability. These records are also negative for evidence of neuropathy or erectile dysfunction. There is also no evidence that diabetes mellitus developed during or within a year of discharge from service. Instead, the post service medical records refer to an initial diagnosis in 1982, and the earliest records to confirm treatment for diabetes are dated 1988. His complications developed at a later date. This precludes service connection on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran never reported that diabetes or its symptoms were present in service or in the years immediately following service. There was no evidence at the time of the Veteran's death of a continuity of symptomatology since service. As noted, the medical evidence indicates the initial diagnosis was made in 1982, which was 25 years after discharge. Continuity of symptomatology is not established. Finally, there is no competent medical opinion that relates the Veteran's diabetes to active service. A diagnosis of diabetes would have required testing and medical expertise, as such lay persons, including the Veteran would not be competent to diagnose the disease. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); 38 C.F.R. § 3.159(a) (2013). As the preponderance of the evidence of record at the time of the Veteran's death is against the claim in every theory, entitlement to service connection for diabetes and its complications on an accrued basis is not warranted. ORDER Entitlement to service connection for diabetes mellitus, type II, with diabetic neuropathy and erectile dysfunction, for accrued benefits is denied. REMAND The Veteran's death certificate lists the cause of death as cardiac arrest, due to shock cardiogenic, due to congestive heart failure, due to idiopathic cardiomyopathy as the cause of death. Ischemic heart disease to include acute myocardial infarctions and coronary artery disease have been added to the list of diseases presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). M21-1MR, Part IV, Subpart ii, 2.C.10.o contains certain procedures that VA is to follow in cases where there is alleged to be exposure to herbicides in locations other than Vietnam or Korea. These have not been followed in this case. In the prior Remands, the RO/AMC was instructed to adjudicate entitlement to service connection for residuals of a low back, neck, and right leg injury, for accrued benefits; however, these claims were not adjudicated. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Utilize the information contained in the claims folder that the Veteran was assigned to the 508th Infantry at Ft. Kobbe, Canal Zone, Panama, from May 1965 to November 1966; the Veteran's descriptions of spraying herbicides found in the September 2005 Agent Orange examination; and any other information relevant to his service in Panama contained in the claims folder; and then follow the procedures found at M21-1MR, Part IV, Subpart ii, 2.C.10.o, "Verifying Herbicide Exposure on a Factual Basis in Locations Other Than in RVN or Korean DMZ". Each step taken and the resulting determination should be recorded and placed in the claims folder. 2. Adjudicate the issues of entitlement to service connection for residuals of low back, neck, and right leg injury, for accrued benefits. These issues should not be certified to the Board unless the appellant perfects an appeal. However, the issue of entitlement to DIC/service connection for the cause of the Veteran's death should not be returned to the Board until these inextricably intertwined issues have been adjudicated. 3. If any perfected appeal remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs