Citation Nr: 1335601 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-39 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for diabetes, claimed as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2011 and November 2012, the Board remanded the case for further development. FINDINGS OF FACT 1. The Veteran is not shown to have any service in Vietnam. 2. Diabetes did not become manifest in service or for many years thereafter, and is not shown to be related to service. CONCLUSION OF LAW The criteria for service connection for diabetes are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A May 2009 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records and the assertions of the Veteran and his representative. The Board has also considered whether a VA medical examination is necessary for proper adjudication of the veteran's claims. However, there is no evidence indicating that the Veteran's current diabetes may be associated with any event, injury or disease in service, aside from the Veteran's assertion that he should be presumed to have been exposed to herbicides during service. As this assertion does not trigger the need for a VA examination but simply a determination whether he served on the ground in Vietnam, such an examination is not necessary. 38 C.F.R. § 3.159(c)(4). Additionally, the Board's prior remands were adequately complied with through the Appeals Management Center (AMC) obtaining the Veteran's personnel records, obtaining available unit histories pertaining to the unit to which the Veteran was assigned during the time frame when he alleges service in Vietnam and asking the Veteran to submit any personnel records in his possession or any other evidence tending to corroborate his alleged service in Vietnam. There is no indication that there is any additional available information, including a unit history from 1967, pertaining to the Veteran's assertion that he delivered supplies in Vietnam during service, which as explained below, is vague in nature. More generally, the Board has found nothing to suggest that there is any outstanding obtainable evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain listed, chronic disabilities, including diabetes, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 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 distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include Prostate Cancer) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). Veterans who, during active service, served on the ground 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 of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. In deciding this claim, the Board must determine the probative value of all of the evidence submitted, so of both the lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board additionally must determine whether the evidence also is credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has claimed that his diabetes mellitus is related to his exposure to herbicides while his unit, U.S. Naval Attack Squadron 127 (VA-127), delivered supplies to Vietnam. Specifically, he asserted that although the unit was stationed in the United States, unit members took supplies to Vietnam on a couple of occasions and unloaded the planes on land, putting the supplies into storage units. The Veteran's DD 214 and service personnel records (SPRs) confirm that he was assigned toVA-127 from approximately March 1967 to March 1968 but don't show any service in Vietnam or that he received a Vietnam Service Medal (VSM). His enlisted personnel rating was Aviation Storekeeper. The records indicate that following completion of recruit training, he began a shore tour in March 1967 with VA-127 at the U.S. Naval Station in Lemore, California. He remained with VA-127 until August 1968. The Veteran's service treatment records do not show any findings of diabetes or high blood sugar. Glucose testing done after the Veteran was hospitalized for syncope in March 1968 was normal. In August 1968, the Veteran was diagnosed with epilepsy, grand mal type, etiology unknown and was given a medical discharge. A March 2009 private treatment record shows a diagnosis of diabetes, uncontrolled. Diabetes was not noted as being part of the Veteran's past medical history. Insulin and dietary counseling were started. VA treatment records show a diagnosis of diabetes in May 2009. In June 2009, the Veteran was taking metformin for diabetes and reported that his blood sugar was 90 to 119 when measured at home. In a March 2013 communication, the Naval History and Heritage Command (NHHC) provided VA with 1966 and 1968 Command Histories for VA-127. NHHC indicated that it did not have a copy of the 1967 command history on file and that it was likely the squadron did not submit a report for that year. The 1966 command history indicates that the primary mission of the squadron was to provide advanced all instrument training for Fleet Replacement Pilots of Readiness Attack Carrier Air Wing 12 (RCVW 12) and refresher training for light jet attack pilots of the Pacific Fleet (PACFLT). As a secondary mission, the unit conducted jet transition and refresher training. The 1968 command history similarly refers to training activities, along with maintenance efforts. There is no mention of any personnel delivering supplies on the ground in Vietnam. At the outset, there is no evidence indicating that the Veteran's diabetes became manifest in service or soon thereafter. To the contrary, the first diabetes diagnosis of record is from 2009. Additionally, the Veteran has not alleged that the current diabetes was present in service or within a year after separation, or that it is related to service in any other way other than his alleged herbicide exposure. Nor is there any medical or lay evidence of record suggesting such a relationship. Accordingly, there is no basis for awarding service connection on a direct basis, or on a presumptive basis, based on chronic diabetes becoming manifest within a year from service separation. 38 C.F.R. §§ 3.303, 3.307, 3.309. Regarding the alleged herbicide exposure, the evidence does not show that the Veteran served on the ground in Vietnam. The service personnel records do not document any Vietnam service and also do not show that he served in close proximity to Vietnam, as he was not awarded a Vietnam service medal. The Veteran did allege that he delivered supplies on the ground in Vietnam on a couple of occasions while stationed with VA-127 in California and he is competent to make this allegation. There is no indication of this in his service personnel records, however. Also, the command histories for VA-127, which were obtained (i.e. from 1966 and 1968), do not document any such activity, nor do they suggest that unit members would have been deployed for this purpose. Instead, they indicate that VA-127 was primarily engaged in training pilots for subsequent deployment in the field. Further, there is no indication from the Veteran's personnel records that he was ever deployed aboard an aircraft carrier or that he traveled to any bases in relatively close proximity to Vietnam. Nor has he alleged any such deployment. The Board presumes that had the Veteran been involved in delivering supplies from the U.S. via plane into Vietnam, the plane would have stopped enroute at a base or aircraft carrier in relatively close proximity to Vietnam. Moreover, the Veteran has not provided nor identified any potential corroborating evidence, which might tend to indicate that he did actually deliver supplies to Vietnam. Thus, given the lack of any indication from the personnel records or the unit histories that the Veteran, while stationed with VA-127 in California, would have been involved in supply delivery to Vietnam; given the Veteran's extremely vague allegation of simply delivering supplies from the U.S. to Vietnam on a couple of occasions; and given that the Veteran has not identified any information, which could potentially corroborate that this alleged activity took place, the Board does not find credible this report of actually having served on the ground in Vietnam. Thus, he may not be presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. Accordingly, as there is no other basis for finding that he was exposed to herbicides during service, he does not qualify for presumptive service connection for diabetes based on such exposure. 38 C.F.R. § 3.307, 3.309. In sum, as diabetes was not shown in service or for many years thereafter; as the Veteran is not shown to have served in Vietnam or to otherwise have been exposed to herbicides during service; and as the Veteran's current diabetes is not otherwise shown to be related to service, the preponderance of the evidence is against this claim and it must be denied. See Alemany, 9 Vet. App. 518 (1996). ORDER Service connection for diabetes, claimed as a result of exposure to herbicides is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs