Citation Nr: 1334782 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-47 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as secondary to Agent Orange exposure. 2. Entitlement to service connection for hypertension, as secondary to diabetes mellitus. 3. Entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the feet, as secondary to diabetes mellitus. 5. Entitlement to service connection for a thyroid disorder, including as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The appellant served on active duty from February 1964 to February 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an October 2008 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO). The Virtual VA claims file has been reviewed. The Board notes that, pursuant to his request in his November 2010 substantive appeal, the Veteran requested a hearing before the Board; however, in December 2010, the Veteran withdrew the Board hearing request. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2013). Subsequently, private treatment records were obtained. However, in the August 2013 Informal Hearing Presentation, the Veteran's representative, on behalf of the Veteran, waived the right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). FINDINGS OF FACT 1. The Veteran did not have service in Vietnam and the evidence does not demonstrate that he was exposed to Agent Orange during service. 2. Diabetes mellitus was not manifest during service or within one year of separation. Diabetes mellitus is not attributable to service. 3. Hypertension is unrelated (causation or aggravation) to a service-connected disease or injury. 4. Peripheral neuropathy is unrelated (causation or aggravation) to a service-connected disease or injury. 5. Erectile dysfunction is unrelated (causation or aggravation) to a service-connected disease or injury. 6. A thyroid disorder was not manifest during service or within one year of separation. A thyroid disorder is not attributable to service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Hypertension is not proximately due to or a result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). 3. Erectile dysfunction is not proximately due to or a result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). 4. Peripheral neuropathy of the feet is not proximately due to or a result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). 5. A thyroid disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110,1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in March 2008 to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, service personnel records, ship deck logs, post-service private treatment records, and the Veteran's own statements in support of his claims. The Veteran has not been examined by VA in connection with his claims for service connection; however, no examination or nexus opinion is required regarding the claims as the evidence demonstrates no related injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such a currently diagnosed disorder could be related. For these reasons, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claims for service connection. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, 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); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA 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); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). As will be discussed below, the evidence does not reflect that the Veteran has been exposed to Agent Orange. He is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease (including hypertension), endocrinopathy, organic disease of the nervous system, and diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As cardiovascular-renal disease (i.e., hypertension), endocrinopathy, organic disease of the nervous system, and diabetes mellitus are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection Factual Background The Veteran's service treatment records do not show blood glucose testing. At separation, urinalysis was negative for sugar. According to the separation examination report, clinical evaluation of the Veteran's heart, vascular system, endocrine system, genitourinary system, neurological system, and lymphatic system was normal. Blood pressure was 120/78. At that time, the Veteran denied experiencing high or low blood pressure, growths, sugar or blood in urine, gain or loss of weight, frequent urination, venereal disease, and foot trouble. Private treatment records from East Jeffersonville Medical, dated 2007 through 2010, indicate that the Veteran has a history of treatment for hypothyroidism, diabetes mellitus, hypertension, and deep venous thrombosis. A February 2006 record from Scott Memorial Hospital states that there was a history longer than 30 years of diabetes mellitus, hypertension, and hypothyroidism. The Veteran testified before a Decision Review Officer at the RO in February 2010. The Veteran testified that he felt that his diabetes mellitus and thyroid disorder were related to service, and that his hypertension, peripheral neuropathy, and erectile dysfunction were secondary to his diabetes mellitus. He also testified that he served aboard the USS Pratt in the Gulf of Tonkin, and thus had Agent Orange exposure. The Board notes that, in a May 2008 decision, the Federal Circuit held that VA regulations required that a veteran have set foot within the land borders of Vietnam for presumptive service connection and that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection. The Federal Circuit further held that VA's amendment to its Adjudication Procedure Manual excluding veterans who had not set foot in Vietnam was not invalid nor impermissibly retroactively applied. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The claimant in Haas filed a petition for a writ of certiorari to the United States Supreme Court, which was denied on January 21, 2009. See Haas v. Peake, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Nonetheless, in January 2010, VA issued Compensation and Pension Bulletin: January 2010 which extended the presumption of herbicide exposure based on "service in the Republic of Vietnam" to certain Navy veterans who served during the Vietnam War on vessels with specific designations, or that conducted "brown water" operations, despite designations as "blue water" vessels. In this regard, the Board notes that the Veteran's DD 214 confirms that the Veteran had 3 years, 3 months, and 1 day of foreign and/or sea service. The Veteran reported that he served on a ship in the waters off the coast of Vietnam; the Veteran does not allege service within the land borders of Vietnam, although he did report that he unloaded cargo from the ship onto land. Service personnel records show that the Veteran served on the USS Pratt. The RO obtained a ship history and logs for the USS Pratt, which showed that the USS Pratt had service in the Western Pacific beginning in July 1967, and had service in the Gulf of Tonkin, at the North SAR (Search and Rescue) Station during August and September 1967; it anchored once, on August 8, 1967. The ship sailed in the Da Nang Op area, but did not anchor, dock, or moor. The history and deck logs for the USS Pratt also do not show that the ship docked or transited inland waterways of Vietnam; none of the ship's personnel are confirmed as having stepped foot in Vietnam. Thus, the USS Pratt does not fall within the extension provided by the VA in the Compensation and Pension Bulletin: January 2010. The presumptive period for Agent Orange exposure includes service in Vietnam from January 9, 1962 through May 7, 1975. See 38 C.F.R. § 3.307(a)(6). As the Veteran did not have service in Vietnam during the requisite time periods, he is not entitled to presumptive service connection in accordance with 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board also notes that, although the Veteran contends that he was exposed to Agent Orange during his military service, he has not provided any additional evidence confirming such exposure. In this regard, multiple searches of the National Personnel Records Center (NPRC), Joint Services Records Research Center (JSRRC), and National Archives and Records Administration (NARA), indicate that no period of service by the Veteran in Vietnam or any herbicide exposure during the relevant time period can be documented. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Thus, his alleged exposure to Agent Orange remains unsubstantiated. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). Diabetes Mellitus and Thyroid Disorder The Veteran in this case alleges that he developed diabetes mellitus and a thyroid disorder as a result of his active naval service. According to his statements, the Veteran's service aboard the USS Pratt resulted in Agent Orange exposure, and his diabetes mellitus should be presumptively service-connected; the Veteran also alleges that his thyroid disorder is related to his Agent Orange. With respect to peripheral neuropathy, hypertension, and erectile dysfunction, the Veteran does not contend that these conditions had causal origins in service. Rather, he asserts that they are secondary to diabetes mellitus, in that the conditions were either caused or aggravated by that condition. The Veteran's claim is limited neither by the theory that he advances nor the precise disability he identifies. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay Veteran's assertion of his or her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). The Veteran has appealed the denial of service connection for diabetes mellitus and a thyroid disorder. The Veteran's claims must be denied. In this case, there is no evidence of diabetes mellitus or a thyroid disorder during service or within one year of separation. Rather, at time of separation, the appellant denied pertinent pathology. Furthermore, the endocrine system and urinalysis were normal. Although there was a report in 2006 of a greater than 30 year history of diabetes mellitus and a thyroid disorder, such history does not establish a manifestation of either a thyroid disorder or diabetes mellitus within one year of separation and certainly does not establish that either disability was manifest to a compensable degree within one year of separation. More specifically, the report of a history greater than 30 years, even if accepted as correct, is non-specific as to the actual date of origin and does not establish the presence of the disability within one year of separation. We also note that the 30 year history is not completely consistent with the Veteran's own report in the original application. At that time, he reported that diabetes began sometime prior to 1992 and that the thyroid disorder began in August 1975. Here, there is uncertainty as to the first manifestation of diabetes and a thyroid disorder. Regardless, the evidence fails to establish the presence of either pathology during service or within one year of separation. The Veteran is competent to report that he has diabetes mellitus and a thyroid disorder and such statements are confirmed by the record. In addition, he is competent to report when the disorders were first identified. However, his statements, even if accepted as credible do not establish a nexus to service. More significantly, the Board reiterates that there is no evidence that the Veteran had service in Vietnam or was otherwise exposed to Agent Orange. Therefore, exposure to Agent Orange on a presumptive basis is not shown. He is not entitled to presumptive service connection in accordance with 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307(a)(6), 3.309(e). To the extent that there are lay opinions linking the remote onset of diabetes mellitus and thyroid disorder to an in-service event or illness, the Board found that the appellant is not a credible historian. The weight of the evidence therefore reflects that the Veteran's diabetes mellitus and thyroid disorder are unrelated to service. In sum, diabetes mellitus and a thyroid disorder were not manifest during service or within one year of separation; there is no indication that the Veteran had service in Vietnam or was otherwise exposed to Agent Orange. Rather, there was a remote post-service onset. There is no reliable evidence linking the remote diabetes mellitus and thyroid disorder to service or to a service-connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for diabetes mellitus and a thyroid disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Peripheral Neuropathy, Hypertension, and Erectile Dysfunction, as Secondary to Diabetes Mellitus The Board observes that the Veteran asserted in various statements that he only wanted his secondary claims considered upon a grant of service connection for diabetes mellitus. As the Board has found that service connection is not warranted for diabetes mellitus, there remains no further basis for consideration of the Veteran's claims for peripheral neuropathy, hypertension, and erectile dysfunction under 38 C.F.R. § 3.310, as secondary to diabetes mellitus. Nevertheless, the Board notes that the Veteran's service treatment records do not show that the Veteran complained of or was treated for peripheral neuropathy, hypertension, and erectile dysfunction during his naval service, or that he had symptoms of peripheral neuropathy, hypertension, and erectile dysfunction during service. Rather, the Veteran's heart, lungs, eyes, endocrine system, vascular system, genitourinary system, and neurological evaluation were normal; blood pressure was 120/78 and urinalysis was normal. In this regard, it is important to note that there is simply no indication of any related problems during service. As service connection has been denied for diabetes mellitus, the assertion of a secondary relationship to peripheral neuropathy, hypertension, and erectile dysfunction fails. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. That is to say, the elimination of one relationship to service, as the supposed precipitant, necessarily also eliminates all associated residual conditions. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (in "order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'") Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The Board notes that service connection was established for tinnitus. However, there is no allegation or evidence suggesting a relationship between peripheral neuropathy, hypertension, and erectile dysfunction to that service-connected disease or injury. Therefore, entitlement to service connection for peripheral neuropathy, hypertension, and erectile dysfunction must be denied; the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection to hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for peripheral neuropathy of the feet is denied. Entitlement to service connection for a thyroid disorder is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs