Citation Nr: 1336084 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 13-00 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia 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 peripheral neuropathy of the bilateral lower extremities. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam. 2. The Veteran was not exposed to herbicides while stationed in Thailand. 3. The Veteran did not manifest diabetes or peripheral neuropathy in service or for many years thereafter; diabetes or peripheral neuropathy are not shown to be due to a documented injury or other event of the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence 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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in November 2010. The letter advised the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs) and reports of post-service medical treatment. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Board has determined that a VA medical examination is not necessary to decide this case. There is no question that the Veteran has the disorders for which he seeks service connection. However, the Veteran's claims are denied not on the basis of a lack of nexus between the claimed disorders and military service, but instead on the principal finding that he was not exposed to herbicides as he has alleged - otherwise known as the in-service event prong of a successful claim of service connection. See 38 U.S.C.A. § 5103A(d)(2)( (VA must provide a medical examination or obtain a medical opinion when such action is necessary to make a decision on the claim. By "necessary" is meant when the evidence of record, including consideration all information and lay or medical evidence including statements of the claimant (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for VA to make a decision on the claim)). 38 U.S.C.A. § 5103A(d)(2). Merits Analysis The Veteran was stationed in Thailand at the U-Tapao Royal Thai Air Force Base (RTAFB) during service. He contends that he was exposed to herbicides, namely Agent Orange, on "missions" to Vietnam to "pick up surplus equipment" (July 2011 statement) and to "bury Vietnamese" (December 2012 VA Form 9). Service connection for diabetes is not warranted on either a direct or presumptive basis. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," such as diabetes mellitus, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era 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(f). Diseases associated with such exposure include diabetes. 38 C.F.R. § 3.309(e). This shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Board has considered all of the evidence. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). There is no evidence the Veteran served in the Republic of Vietnam. In January 2011, the National Personnel Records Center (NPRC) indicated that it was unable to determine whether the Veteran had in-country service in the Republic of Vietnam. A review of the Veteran's service personnel records does not show the Veteran served in the Republic of Vietnam. The Board is aware that the Veteran is in receipt of the Vietnam Service Medal and Republic of Vietnam Campaign Medal. However, the Veteran served in Thailand, and according to VBA Fast Letter 09-20 (May 6, 2009), Thailand was a staging area for aircraft missions over Vietnam, and many veterans who assisted with these missions received these medals for their support of the war effort. Moreover, both awards were also given, as here, for support of the mission in Vietnam, and do not per se denote service in Vietnam. Therefore, not having served in the Republic of Vietnam, the Veteran is not presumed to have been exposed during his period of service to an herbicide agent in Vietnam. 38 U.S.C.A. § 1116(f). With regard to potential herbicide exposure in Thailand, a copy of a Memorandum for the Record is placed in the Veteran's file. See VBA Fast Letter 09-20 (May 6, 2009). This response document indicates that VA has conducted extensive research and contains input from the Department of Defense and is intended to cover general claims of exposure as well as a number of specific exposure claims. If the herbicide exposure issue can be resolved based on this document, then no further development action is necessary. Id. The Memorandum for Record, included in the Veteran's claims file, shows that limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, near the Pranburi Military Reservation. The Memorandum further shows that tactical herbicides, such as Agent Orange were not used or stored in Thailand. There are no records of tactical herbicide spraying by Ranch Hand or Army Chemical Corps aircraft in Thailand after 1964. There was sporadic use of non-tactical or commercial herbicides used within the base, on small-scale brush or weed clearing activity along the flight line or around living quarters in Thailand. However, these were not tactical herbicides and only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of Base Civil Engineer were used. The Veteran's herbicide exposure claim can be resolved based on this Memorandum. First, the Veteran was in Thailand from 1967-1968, three years after there was limited testing of tactical herbicides near the Pranburi Military Reservation. Next, the herbicides used to defoliate near the flight-line and living quarters in Thailand were not tactical herbicides, but commercial grade herbicides approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer. Therefore, based on the Veteran's military occupational specialty (MOS) of a special vehicle operator and his description of construction duties, the Veteran is not presumed to have been exposed during his service in Thailand. Id. Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Diabetes mellitus is a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is warranted. Where a combination of manifestations sufficient to identify a chronic disease in service, and establish chronicity at the time are present, any later manifestation of the same chronic disease is subject to service connection unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran's service treatment records are devoid of treatment, complaints, or diagnoses of diabetes. The first evidence of the Veteran being diagnosed with diabetes is in 2010, 40 years after service, and clearly outside the one-year presumptive period for diabetes. See April 2010 Informal Claim. 38 C.F.R. §§ 3.307, 3.309. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). This absence of evidence of complaints or treatment of diabetes until 2010 constitutes negative evidence against the claim because it tends to disprove that diabetes was the result of the Veteran's active service. Id. As diabetes was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disability to service. There is no such competent evidence that establishes a relationship to an identified injury or other incident of service. Therefore, the Board concludes that service connection for diabetes mellitus is not warranted under 38 C.F.R. § 3.303(b). With regard to the peripheral neuropathy claim, the analysis is similar to the diabetes claim. As above, the Veteran's service treatment records are devoid of treatment, complaints, or diagnoses of peripheral neuropathy. The first evidence of the Veteran having been diagnosed with peripheral neuropathy is in 2010, 40 years after service. See April 2010 Informal Claim. Similarly, there is no evidence that establishes a relationship between the Veteran's peripheral neuropathy and an identified injury or other incident of service. Therefore, the Board concludes that service connection for peripheral neuropathy is not warranted. Apart from all of the above and not in exclusive reliance, the Board has examined the Veteran's service personnel records. In substance, they indicate that while in Thailand, the Veteran served as an equipment operator. Although the Veteran reports that he was sent "on missions" to drive vehicles in Vietnam for pick up by military authorities, and that he was tasked while in Vietnam to bury Vietnamese, the Board finds his account incredible. The Veteran's service personnel records indicate that he performed ground construction equipment operation and maintenance in Thailand. His superiors mentioned nothing about special missions where the Veteran was selected or tasked to perform temporary duty in Vietnam. There is no evidence to indicate that given the presumably extensive ground contingent in Vietnam to do exactly the duties the Veteran alleges he did there, that the Veteran had any special skills that would have warranted his selection. In sum, the preponderance of the evidence is against the claims and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs