Citation Nr: 1335825 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-32 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. The Veteran requested and was scheduled for hearings before the RO on February 7, 2012, and the Board on October 7, 2013. However, as he failed to appear at both hearings and has not requested that the hearings be rescheduled, his hearing requests are considered to have been withdrawn. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. Ischemic heart disease did not have its clinical onset in service and is not otherwise related to active duty; ischemic heart disease was not exhibited within the first post service year. 2. Peripheral neuropathy did not have its clinical onset in service and is not otherwise related to active duty; peripheral neuropathy was not exhibited within the first post service year. CONCLUSIONS OF LAW 1. Ischemic heart disease was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy was not incurred in or aggravated by active service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Procedural Duties Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). A. Duty to Notify VA satisfied its duty to notify the Veteran in the development of his claim. Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including: (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, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, a March 2011 letter notified the Veteran of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the Veteran's claim in July 2011. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. There is no indication or argument that any pertinent medical records remain outstanding. The VA attempted to obtain any outstanding Social Security Administration records of the Veteran, but none were found. See December 2011 Formal Finding of Unavailability. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. A VA examination or opinion was not obtained in this case, and it is not necessary. A medical examination or opinion is required for a service connection claim when there is: (1) competent evidence of a current disability, or persistent or recurrent symptoms of disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation; (3) an indication that the current disability may be associated with the in-service event, or to another service-connected disability; and (4) insufficient competent medical evidence to adjudicate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The requirement of an "indication" that the claimed disability "may be associated" with the in-service injury is a "low threshold." Types of such evidence 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. Id. at 83; Haas v. Shinseki, 22 Vet. App. 385, 388-89 (2009). The evidence of a link between the current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Here, as there is no evidence of an in-service event, injury or disease, and no indication that the Veteran's disabilities are associated with any in-service event, an examination is not necessary to satisfy the VA's duty to assist. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis When determining service connection, all theories of entitlement-direct, presumptive and secondary-must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Certain chronic diseases, including ischemic heart disease and peripheral neuropathy, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If chronicity (i.e., permanency) of disease or injury in service is not shown, or is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 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). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, peripheral neuropathy, as an organic disease of the nervous system, and ischemic heart disease are such chronic conditions under 38 C.F.R. § 3.309(a). A Veteran who, during active military, naval, or air service, 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 during such service 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 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Ischemic heart disease is among the diseases listed as presumptive to such exposure, as is early onset peripheral neuropathy. 38 C.F.R. § 3.309(e); Notice, 78 Fed. Reg. 173, 54763 -54766 (September 6, 2013). The Federal Circuit has held that in order for the presumption of herbicide exposure to apply under this regulation, qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam or on its inland waterways. Haas v. Peake, 525 F.3d 1168, 1193-95 (Fed. Cir. 2008) The Veteran asserts that he served in the Republic of Vietnam. However, he is not a reliable historian. His service records demonstrate that he did not have any foreign service. The Veteran's DD-214 states that he served on active duty in the Marine Corps for one month and twelve days, between June and August 1971. His Form NAVMC 118(17), "Sea and Air Travel - Embarkation Slips," does not reflect any such travel by the Veteran. The Veteran's Form NAVMC 118(3), "Record of Service," indicates that the Veteran did not leave San Diego while he was in service, and that he was dismissed prior to the completion of recruit training. His service treatment records (STRs) state that a medical board found him unfit for duty on July 15, 1971, prior to his discharge on August 5, 1971. The service department has indicated that there is no record in the Veteran's file to substantiate any service in the Republic of Viet Nam. The Veteran himself does not provide any credible details of his deployment to the Republic of Viet Nam during his approximately 6 weeks of active duty. A clear preponderance of the evidence is therefore against the fact that the Veteran served in the Republic of Vietnam. As the record does not indicate that the Veteran served in the Republic of Vietnam, he is not entitled to a presumption of service connection due to herbicide disorder for either peripheral neuropathy or ischemic heart diseases. 38 U.S.C.A. § 1116(a)(2), 38 C.F.R. §§ 3.307, 3.309(e). The Veteran is also not entitled to service connection on a presumptive basis under 38 C.F.R. § 3.309(a). While peripheral neuropathy and ischemic heart disease are chronic diseases under 38 C.F.R. § 3.309(a), no notations of these diseases or any characteristic manifestations thereof were noted in the Veteran's STRs. There is also is no evidence that these ailments either manifested to a compensable degree within one year of the Veteran's departure from service, or is there any showing of continuity of symptomatology since the Veteran's service. As such, service connection under 38 C.F.R. § 3.309(a) is not warranted, and ischemic heart disease and peripheral neuropathy may not be presumed to have been incurred in service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. Finally, service connection is not warranted on a direct basis. VA treatment records from February 8, 2011, state that the Veteran has a history of ischemic cardiomyopathy and chronic neuropathy; the records also indicate that the Veteran stated that he received disability benefits for the latter. However, the Veteran's records supply no evidence establishing an in-service event, injury, or disease pertinent to either ailment. His STRs do not mention symptoms related to heart disease, neuropathy, or any similar ailments. Accordingly, he is not entitled to service connection on a direct basis. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In summary, the evidence does not establish that the Veteran's peripheral neuropathy and ischemic heart disease were incurred or aggravated during his military service. The preponderance of the evidence is against service connection these disabilities on a direct or presumptive basis. As such, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claim must be denied. ORDER Service connection for ischemic heart disease is denied. Service connection for peripheral neuropathy is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs