Citation Nr: 1335371 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-35 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange. 2. Entitlement to service connection for benign prostatic hypertrophy, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for peripheral vascular disease of the lower extremities, to include on a secondary basis. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to January 1977 and from January to October 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for diabetes mellitus, benign prostatic hypertrophy and a skin disability, all to include as due to exposure to Agent Orange, and denied service connection for peripheral vascular disease of the lower extremities as secondary to service-connected disability. The Board notes that service connection for a skin disability was denied by the RO in a March 2003 rating decision. The Veteran was notified of this determination and of his right to appeal by a letter dated the following month, but a timely appeal was not received. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability, to include as due to exposure to Agent Orange, 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. FINDINGS OF FACT 1. The Veteran's service in Korea commenced after August 31, 1971. 2. It is not shown that the Veteran has diabetes mellitus that is related to service, to include exposure to Agent Orange. 3. It is not shown that the Veteran has benign prostatic hypertrophy that is related to service, to include exposure to Agent Orange. 4. It is not shown that the Veteran has peripheral vascular disease that is related to service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 2. Benign prostatic hypertrophy was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. Peripheral vascular disease of the lower extremities was not incurred in or aggravated by active service, nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. A July 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records have been secured. The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. The Veteran has not been afforded an examination to secure an opinion regarding the etiology of any disability being considered in this decision. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that based on the evidence of record, an examination is not necessary. As is discussed in greater detail below, there is no credible evidence to show the claimed injury or event (exposure to herbicides) during service. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The service treatment records from both periods of service are negative for complaints or findings pertaining to diabetes mellitus, benign prostatic hypertrophy or peripheral vascular disease of the lower extremities. The endocrine, vascular and genitourinary systems were evaluated as normal on the separation examination in September 1979. The discharge certificate from the Veteran's first period of service reflects he had service in Korea. VA outpatient treatment records disclose the Veteran was seen in January 2004. The examiner noted laboratory findings were consistent with diabetes. It was indicated he had diabetes mellitus, type II in May 2004. He was seen for follow-up of diabetes and claudication in August 2006. The impressions were diabetes mellitus, type II and benign prostatic hypertrophy. In March 2007, the Veteran reported pain in his calves when he walked secondary to vascular disease. The impressions were diabetes mellitus, type II, peripheral vascular disease/peripheral arterial occlusive disease with claudication and benign prostatic hypertrophy. Service connection has not been established for any disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is a rebuttable presumption of exposure to herbicides if claimant served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Exposure to herbicides may also be presumed if a claimant served during the period between April 1, 1968, and August 31, 1971, in a unit that as determined by the Department of Defense operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish the claimant was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). If a Veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus Type 2 and prostate cancer, 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. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). (VA recently its regulation regarding acute and subacute peripheral neuropathy, but the revisions have no applicability in this case, as pertinent diagnosis is not shown.) The Veteran does not contend that he served in the Republic of Vietnam. The Veteran served in the Republic of Korea during the period April 1973 through April 1974, but as his service was after August 1971 there is no presumption of service connection for Agent Orange based on his Korean service. The Veteran asserts service connection is warranted for diabetes mellitus, benign prostatic hypertrophy and peripheral vascular disease of the lower extremities. During the hearing before the undersigned, the Veteran testified his unit served near the DMZ in Korea, and that this area had been sprayed with Agent Orange. He claims the area where he served had no vegetation, and he recalls that a non-commissioned officer told him to be careful because the area had been sprayed. With respect to the Veteran's claim that Agent Orange caused diabetes mellitus, the Board acknowledges that he did serve in Korea. As noted above, however, a presumption for service connection based on exposure to Agent Orange in Korea is limited to the period from April 1968 through August 1971 along the DMZ, and then only for servicemen attached to one of the units identified by the Department of Defense. It is not disputed that the Veteran's period of active duty did not commence until January 1975, after the identified period. Thus, service connection based on exposure to Agent Orange in Korea is not warranted. The Board finds the Veteran's allegations of having been exposed to Agent Orange because the area had no vegetation are insufficient to prove such exposure. Based on the foregoing, presumptive service connection for diabetes mellitus, type II due to exposure to Agent Orange is not warranted. The Board also notes that benign prostatic hypertrophy is not a disability subject to presumptive service connection based on Agent Orange exposure. While the Veteran is not entitled to service connection due to exposure to Agent Orange, he is still entitled to a review of his claim to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes there is no indication of diabetes mellitus, benign prostatic hypertrophy or peripheral vascular disease of the lower extremities for many years after service. The Board observes diabetes mellitus was first documented in 2004. Similarly, benign prostatic hypertrophy was first shown in 2006, and the symptoms of peripheral vascular disease were also noted in 2006, with peripheral vascular disease diagnosed in 2007. In addition, the Veteran alleges his peripheral vascular disease is secondary to his diabetes mellitus. However, since service connection has not been established for diabetes, service connection on a secondary basis is not warranted. In addition, the Veteran's assertions that diabetes mellitus and benign prostatic hypertrophy are related to service, to include exposure to Agent Orange, are not competent evidence in the matter. The Board concedes the Veteran is competent to report his symptoms. Laypersons are competent to provide opinions on some medical issues; however, the specific questions in this case, the diagnosis and etiology of diabetes mellitus and benign prostatic hypertrophy fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The record demonstrates that diabetes mellitus and benign prostatic hypertrophy were initially demonstrated many years after service, and there is no competent medical evidence linking any of them to service. As noted above, since service connection has not been granted for diabetes mellitus, the Veteran's claim for service connection for peripheral vascular disease of the lower extremities on a secondary basis must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for diabetes mellitus, type II, benign prostatic hypertrophy or peripheral vascular disease of the lower extremities. Additional considerations The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against these claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange, is not warranted. Service connection for benign prostatic hypertrophy, to include as due to exposure to Agent Orange, is not warranted. Service connection for peripheral vascular disease of the lower extremities is not warranted. The appeal is denied to this extent. REMAND As noted above, the RO originally denied the Veteran's claim for service connection for a skin disability in March 2003. Although the February 2009 rating decision noted the previous denial, the RO did not consider the claim on the basis of whether new and material evidence had been received. The Veteran was not provided VCAA notice advising him of the need to submit new and material evidence to reopen his claim or of the basis for the prior denial in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). Corrective notice should be provided on remand. Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO/AMC for action as follows: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to the issues of whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim for service connection for a skin disability, to include as secondary to Agent Orange. The notice should also advise the Veteran of the bases for the prior denials as outlined in Kent, 20 Vet. App. 1. 2. Following completion of the above, the RO should review the evidence and determine whether new and material evidence has been received to reopen the skin disability claim and, if so, whether that benefit may be granted. If the benefit sought is not granted in full, then the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs