Citation Nr: 1334702 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-35 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1964 and from July 1966 to December 1968. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, May 2010, and February 2012, the Board remanded this case for further development. In the February 2012 decision, the Board noted that the issue of entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board did not have jurisdiction over the issue it was referred to the AOJ for appropriate action. This issue has still not been adjudicated by the RO and is again referred back for initial consideration. The Board notes that, in addition to the Veteran's claims file, there is also a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. FINDINGS OF FACT 1. Diabetes mellitus type II has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active military service, to include exposure to Agent Orange. 2. Prostate cancer has not been shown to have had its onset in service or within one year of service, and such disability is not otherwise a result of active military service, to include exposure to Agent Orange. CONCLUSIONS OF LAW The criteria for an award of service connection for diabetes mellitus type II have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). The criteria for an award of service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in February 2005 and March 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The latter communication also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued and the claim was thereafter readjudicated. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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. These four factors are: (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. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment referable to diabetes mellitus type II or prostate cancer. Moreover, the post-service evidence does not indicate any current complaints or treatment for these disabilities until many years following separation. Furthermore, the records contain no competent evidence suggesting a direct causal relationship between the current disabilities and active service. Rather, the Veteran contends that presumptive service connection is warranted based on Agent Orange exposure in service. However, as noted below, that has not been shown by the evidence in this case. For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as diabetes mellitus type II, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, certain disorders associated with herbicide agent (Agent Orange) exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In addition, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemia. The final rule was issued in August 2010 and became effective August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). Veterans who 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 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)(iii). In Haas v. Peake, 525 F.3d 1168 (2008), the Federal Circuit held that VA's regulation defining "served in the Republic of Vietnam," under the Agent Orange Act, to mean "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam," was reasonably interpreted by VA to require that a service-member had set foot within land borders of Vietnam in order to be entitled to statutory presumptions of both exposure and service connection for specified diseases under the Act. Haas, 525 F.3d at 1187; 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). The Federal Circuit also stated that a Veteran who had served on board a Navy ammunition supply ship operating in the Vietnamese coastal waters had not "served in the Republic of Vietnam" under the Agent Orange Act and regulations since he had never gone ashore from the ship and set foot within land borders of Republic of Vietnam. Haas, 525 F.3d at 1193; 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). Notwithstanding the foregoing presumption provisions, the U.S. Court of Appeals for the Federal Circuit (Circuit Court) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran contends that he is entitled to service connection for prostate cancer and diabetes mellitus, type II, to include as secondary to Agent Orange in service. He was diagnosed with the former in October 2000 and the latter in April 2004. The Veteran contends that he set foot in Vietnam en route to Thailand and should thus be presumed to have been exposed to herbicides, warranting service connection on a presumptive basis. In this regard, the Board notes that the service treatment records do not indicate aany treatment for, or manifestations of, prostate cancer or diabetes mellitus type II in service. Nor does the medical evidence indicate a diagnosis or manifestations of these conditions within one year of discharge. In this case, the Veteran's service personnel records show that he was stationed in Thailand beginning in May 1968. He contends that he traveled to Thailand in May 1968 on military aircraft with the 555th Redhorse Unit via Air Force bases in Florida, Alaska, and the Republic of Vietnam. He explained that he landed in Vietnam and remained in country until he could get a flight out to Thailand. As a result, he received 30 days of in country combat pay for his stay in Vietnam. In order to assist the Veteran in obtaining information that may corroborate his claim, the RO made inquiries and this matter was remanded by the Board in order to conduct relevant searches of military records. The service treatment and personnel records do not establish service in the Republic of Vietnam or in the Korean demilitarized zone (DMZ) that would enable a presumption of herbicide exposure. 38 C.F.R. § 3.307(a)(6). The DD-214 for the Veteran's first tour of active duty shows no foreign or sea service. However, the AF Form 7 from his second period of service shows that he served at U-Tapao Airfield with a permanent duty station at the Royal Thai Air Force base in Nakhon Phanom in Thailand from May 1968 until his separation. This service is Thailand is sufficient to satisfy the requirements for the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. See Manual of Military Decorations and Awards, A-6 (Department of Defense Manual 1348.33-M, September 1996). In December 2004, the RO made a Personnel Information Exchange System (PIES) request in an effort to determine the Veteran's dates of service in Vietnam. That request spanned all dates of service and included both names by which the Veteran has been known. The PIES response in February 2005 indicated that it could not be determined whether the Veteran had active service the Republic of Vietnam. An additional PIES response dated in September 2010 regarding travel order and pay stubs that may reflect special pay status and all TDY (temporary duty) orders was negative, as no travel vouchers were found. A July 2009 Formal Finding Memorandum determined, based on a review of the Veteran service personnel records and a response from the National Personnel Records Center, that the Veteran did not have service in the Republic of Vietnam. A July 2011 Formal Finding Memorandum determined that documents unavailable for review included travel orders; pay stubs, which reflect special pay status, travel vouchers, and all TDY (temporary duty) orders from in May 1968 on military aircraft with 555th Redhorse Unit via Air Force bases in Florida, Alaska, and the Republic of Vietnam. This was based on a January 2011 responses from DFAS stating that the Veteran was not on the retired rolls and that there was no information available, from HQ AFPC dated in February 2010 stating that the Veteran records were located at the NPRC, and from the NPRC dated in September 2010, finding that there were no vouchers on file. In addition, in February 2012, the Board noted that Department of Defense records indicated a significant use of herbicides on the fenced-in perimeters of military bases in Thailand during the Vietnam Era. The Veteran's personnel records noted that his military occupational specialty (MOS) was liquid fuel system maintenance specialist, and this was not the type of MOS for which duty on the air base perimeter is presumed. See VA Adjudication Procedure Manual, M21-1MR Part IV, Subpart ii, Chapter 2, Sec C(10)(q). However, the specific duties of this position, particularly whether it involved duty on or near the perimeters of this base, were unclear. As such, the Board found that he should be asked to provide additional information with regard to his daily activities while in Thailand in order to determine whether or not he was exposed to herbicides along the perimeter of the base in U-Tapao Airfield or Nakhon Phanom in Thailand. Alternately, if the Veteran was not assigned to duty along the air base perimeter, he was to provide the approximate dates, location, and nature of any actual herbicide exposure. This information was then to be submitted to the Joint Service Records Research Center (JSRRC) for verification of the alleged herbicide exposure. A response from the JSRRC was received in May 2013 indicating that the 556th Civil Engineering Squadron (CES) (Red Horse) was stationed at U-Tapao Royal Thai Naval Airfield (RTNAF) from August through September 1968. The data was negative and did not report of the Veteran or unit personnel duty assignment locations or their living quarter locations in proximity to the U-Tapao base perimeter. The JSRRC reported that, to date, available historical data does not document tactical herbicide spraying, testing or storage at U-Tapao RTNAF or Nakhon Phanom Royal Thai Air Force Base during August through September 1968. A May 2013 Formal Finding regarding Agent Orange exposure determined that the evidence failed to confirm that the Veteran was exposed to herbicides. Based on the foregoing, the Board finds that entitlement to service connection for prostate cancer and diabetes mellitus type II is not warranted in this case. Here, the Veteran has been diagnosed with both disabilities. The Board also notes that both disabilities are presumptive disabilities caused by exposure to Agent Orange under 38 C.F.R. § 3.309. However, exposure to Agent Orange has not been established in this case, and the medical evidence does not indicate that the Veteran was diagnosed with these conditions until many years following service. Moreover, no medical evidence suggesting a connection between the Veteran's military service and his diagnosed diabetes mellitus and prostate cancer exists in this case. The Veteran contends that his claimed disabilities are related to his service. In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that they observe and that are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that in this case, the etiology of the Veteran's disorders is a complex medical question, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such a complex medical question. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus type II is denied. Service connection for prostate cancer is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs