Citation Nr: 1336060 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-22 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for right eye blindness, to include as secondary to diabetes mellitus, type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served in the United States Army from November 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2010 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefits sought on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision. The issue of entitlement to service connection for right eye blindness, to include as secondary to diabetes mellitus, type II, 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. FINDING OF FACT The evidence does not show that the Veteran has a current diagnosis of diabetes mellitus, type II, that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, prior to the initial rating decision in this matter, a letter from VA dated in December 2009 notified the Veteran of how to substantiate a service connection claim, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. He was also informed of how ratings and effective dates are assigned. Therefore, the duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Here, the Veteran's service treatment records, service personnel records, Social Security Administration records, and VA medical records are in the claims file. He has not identified any other records or evidence that remains outstanding with respect to the diabetes claim. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2013). Although the Board is remanding the claim for service connection for right eye blindness due to missing private treatment records, a remand for the Veteran's diabetes mellitus claim is unnecessary. The missing records reportedly pertain to the eyes and there is no indication they are relevant to the question of service-connection for diabetes mellitus, particularly whether the Veteran was exposed to herbicides in service. 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. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board finds that there is no credible evidence suggesting an association between the Veteran's diabetes mellitus and any event, injury, or disease in service. Specifically, there is no evidence of an in-service diagnosis of diabetes mellitus and no credible evidence of continuity of symptomatology from service. Moreover, the credible evidence does not show the Veteran was exposed to herbicides in service, and there is no competent and credible evidence otherwise linking diabetes mellitus to the Veteran's military service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. As such, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (noting that "strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran..."); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (observing that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For the chronic diseases specifically listed in 38 C.F.R. § 3.309(a) (2013) of the regulations, including diabetes mellitus, service connection may also be established by showing a chronicity in service or a continuity of symptomatology after service. See 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331, 1338 (2013) (holding that subsection 3.303(b) only applies to the chronic diseases specifically listed in section 3.309(a) of the regulations). When a chronic disease as defined by VA in section 3.309(a) is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b) (2013). If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim under subsection 3.303(b). Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Hickson. See Walker, 708 F.3d at 1338-39 (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," as a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). As there is no indication that diabetes mellitus was manifested to a compensable degree within one year of service, the above provision is inapplicable. Alternatively, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 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 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, diabetes mellitus. Id. The Veteran contends that his current diabetes mellitus was caused by herbicide exposure in service. In his initial claim filed in November 2009, the Veteran asserted that he had a two week stopover in Saigon, Vietnam while he was being transferred from Thailand to the Republic of Korea. In his July 2010 Notice of Disagreement, the Veteran claimed that he had been in Vietnam and was exposed to herbicides or Agent Orange. In a statement received October 2011, the Veteran claimed he was in Vietnam from August 12 to August 17, 1970. In his VA Form 9 received August 2011, the Veteran asserted that he spent approximately 30 days in Saigon while waiting for a flight to Korea; he added that he was temporarily housed on the main base in Saigon. In a June 2013 statement, the Veteran reiterated his claim that he was in Saigon from August 12 to August 17, adding that he and other men made 3 formations every day up until their departure for Korea. The Board acknowledges the Veteran's sincere belief that his current diabetes mellitus was caused by exposure to herbicides. In this case, however, the evidence fails to establish that the Veteran had service in Vietnam. In December 2009, the RO made a Personnel Information Exchange System (PIES) request for evidence of the Veteran's Vietnam service. The National Personnel Records Center (NPRC) responded that it was unable to determine in-country service. In June 2010, the RO made a Defense Personnel Records Information System (DPRIS) request with information supplied from the Veteran. On June 9, 2010, DPRIS issued a response stating that it was unable to confirm that any personnel from the Veteran's unit stopped in Saigon. In a June 2010 memorandum, VA determined that the information required to corroborate the exposure described by the Veteran was insufficient to allow for meaningful research by the U.S. Army and Joint Services Records Research Center, U.S. Marine Corps, or the National Archives and Records Administration (NARA). The memorandum further noted that all efforts to obtain the needed information from the Veteran had been properly followed in accordance with VA Manual M21-1MR.IV.ii.1.h and FL 09-07, that all efforts to obtain the needed military records had been exhausted, and that any further attempts would be futile. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The service personnel records reflect that the Veteran served as a communications center specialist with the HHD 379th Signal Battalion at Camp Samae San in Thailand from June 1970 to August 1970, and as a communications center specialist at a USASTRATCOM detachment in Korea from August 1970 to February 1971. The Veteran's service personnel records do not show that the Veteran flew to Vietnam in between his service in Thailand and his service in Korea. Furthermore, as noted above, DPRIS determined in June 2010 that it was unable to confirm that any personnel from the Veteran's unit stopped in Saigon. Additionally, in the Veteran's DD Form 214 from May 1972, foreign service was noted in the affirmative for Thailand and Korea, but in the negative for Vietnam. The Veteran signed this form, acknowledging he had no service in Vietnam. Moreover, the inconsistencies of the Veteran's statements regarding his alleged time in Vietnam further diminish the credibility of his contention. Thus, while the Veteran is competent to describe events as they come to him through his senses, the Board finds that such descriptions are not credible in light of the objective findings in this case that do not confirm his alleged stopover in Vietnam. See Layno v. Brown, 6 Vet. App. 465 (1994). Since the regulation requires the Veteran to have set foot within land borders of Vietnam for the presumptive service connection to attach, the Board finds that the objective evidence of record outweighs the Veteran's assertions that he stepped foot on land in Vietnam. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that a Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to the presumptive connection); see also VAOPGCPREC 27-97 (July 23, 1997). Additionally, the Board acknowledges the Veteran's DD Form 214 notes the Veteran received the Vietnam Service Medal (VSM), among other medals and awards; however, the Federal Circuit held that "service in Vietnam" will not be presumed based upon a Veteran's receipt of the VSM. See Haas, 525 F.3d at 1174. Moreover, a June 1970 service personnel record indicates that the Vietnam Service Medal was awarded to the Veteran "by virtue of permanent assignment to a unit in Thailand." With respect to the Veteran's service in Thailand, pertinent provisions of VA Manual M21-1MR set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam, particularly in Thailand and in other locations. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q) (Dec. 16, 2011). Specifically, the M21-1MR provides that several items of development should be performed, including considering the Memorandum on 'Herbicide Use in Thailand during the Vietnam Era,' notifying the Veteran appropriately concerning Thailand herbicide exposure; and if necessary, requesting verification of herbicide exposure from the JSRRC for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q); see also VBA Fast Letter 09-20, 'Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era.' As noted above, the record reflects that the Veteran was stationed at Camp Samae San in Thailand from June to August 1970. Nonetheless, neither the Veteran nor his representative contends that service connection is warranted for the claim on appeal due to a potential exposure to herbicides during his service in Thailand. They also do not contend, nor does the record reflect, that the Veteran's service in Thailand encompassed being: an Air Force security policeman, security patrol dog handler, member of the security police squadron, or member of a military police unit; with a military police occupational specialty; or otherwise near the air base perimeter. As a result, further development, pursuant to M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), is not warranted and the Board finds that service connection for the claim on appeal is not warranted on a presumptive basis due to the Veteran's service in Thailand. On January 25, 2011, VA amended its regulations to provide presumptive herbicide exposure for any Veteran who served between April 1, 1968, and August 31, 1971, in a unit determined by VA and the DoD to have operated in an area in or near the Korean DMZ in which herbicides were applied. See 38 C.F.R. § 3.307(a)(6)(iv); see also, 76 Fed. Reg. 4,245-4,250 (Jan. 25, 2011). If it is determined that a Veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing agent orange unless there is affirmative evidence to establish the Veteran was not exposed to any such agent during that service. The Veteran's personnel records reflect that he served in Korea from August 1970 to June 1971, with the Co. C USASTRATCOM LL BN North-K USARPAC. Therefore, while it is clear from the evidence of record that the Veteran served in Korea during the required timeframe, the Veteran did not serve in one of the units in Korea identified by DoD as being exposed to herbicides or agent orange. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p). M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p) specifies that a request should be sent to the United States Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides when a Veteran claims exposure in Korea, and his/her service was not (1) between April 1, 1968, and August 31, 1971, and (2) in a unit or entity that DoD has identified as operating in or near the Korean DMZ during the qualifying time period. In this case, however, as the Veteran has not alleged he was exposed to herbicides in Korea, no further development is required, and the Board finds that service connection for the claim on appeal is not warranted on a presumptive basis due to the Veteran's service in Korea. Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). With respect to Hickson element (1), a current diagnosis, post-service medical records indicate a current diagnosis of diabetes mellitus. The records indicate that the Veteran was first diagnosed with diabetes mellitus many years after service. Thus, Hickson element (1) is met. With respect to Hickson element (2), in-service incurrence or aggravation, the Veteran had no in-service evidence of diabetes mellitus. The Veteran's service treatment records are wholly silent for complaints, treatment, or diagnoses of diabetes mellitus. The Veteran's October 1969 entrance examination and February 1972 separation examination both include urinalysis results that were negative for albumin and sugar. In contemporaneous Reports of Medical History, the Veteran denied a history of albumin or sugar in his urine. Nor does the claims file otherwise include lay evidence of a continuity of symptomatology since service. Thus, Hickson element (2) is not satisfied and the claim fails on this basis. Nevertheless, for the sake of completeness, the Board will address Hickson element (3), a medical nexus. The record contains no evidence that a competent medical professional has linked the Veteran's current diabetes mellitus to his military service, nor is there any indication that the Veteran was exposed to herbicides. The Board acknowledges the Veteran's assertions that his diabetes mellitus is the result of his military service. Certainly, the Veteran is competent to report sensory or observed symptoms, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He generally is not, however, competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current diabetes mellitus and his military service. Thus, his statements regarding any such link are not competent. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the credible evidence does not show that the Veteran was exposed to herbicides in service and the Veteran's service treatment records show no diabetes mellitus in service. The Veteran did not receive treatment for or a diagnosis of diabetes mellitus until many years after service. No medical professional has ever attributed the Veteran's diabetes mellitus to his military service, nor is the Veteran competent to make such a link. Based on the foregoing, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for diabetes mellitus, type II, must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. REMAND Regarding the claim for service connection for right eye blindness, there are various references in the Veteran's VA medical records to a Dr. Parent. There is also an indication therein that old eye records should be obtained from his office. However no records from Dr. Parent's treatment of the Veteran are contained in the claims file. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and request the provision of a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2) (2013). A remand is necessary to attempt to obtain any additional relevant records from Dr. Parent, as well as any other pertinent treatment records from other private physicians. Accordingly, the case is REMANDED for the following actions: 1. The RO should ask the Veteran to complete authorization forms for VA to obtain all records of his eye treatment from Dr. Parent, from the start of such treatment to the present, as well as any other records from other physicians that may be relevant for his eye treatment. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. When the development requested has been completed, the claim should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs