Citation Nr: 1336656 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-36 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for facial tumors. 4. Entitlement to service connection for blindness of both eyes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to September 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for each disability at issue. The issues of service connection for erectile dysfunction, facial tumors and blindness of both eyes are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The positive evidence is in a state of equipoise with the negative evidence on the question of whether the Veteran set foot in Vietnam during his period of Navy service. 2. The Veteran has been diagnosed with diabetes mellitus, type II. CONCLUSION OF LAW Diabetes mellitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA VA has duties 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). The VCAA applies in this case. However, as the benefits sought are being granted, there is no need to belabor the impact of the VCAA on this claim as any VCAA-mandated notice or duty to assist omission is harmless. 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). 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). If a Veteran was exposed to an herbicide agent during active service, the following diseases 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: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 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). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis. A veteran who 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 the contrary. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Personnel records reflect the Veteran was assigned to the USS Somers from March 1, 1971 through September 24, 1973. The discharge certificate shows that, among other medals, the Veteran was awarded the Vietnam Service Medal and the Combat Action Ribbon. It must first be resolved whether the Veteran had service in Vietnam. During the hearing before the undersigned in July 2013, the Veteran testified that he traveled from his ship, which was anchored in the harbor, to shore in a small boat, and he was then taken to a warehouse in Da Nang near the pier. He claims he was trying to procure electronic equipment for the ship, but was unable to do so. He also insists that on another occasion, he boarded a helicopter and went to Da Nang, and from there, got on a plane that took him to Cam Ranh Bay, and then back to Da Nang. He asserts that while in Da Nang he purchased a gift box for his mother from a vendor. He maintains he bought gifts for her at every port he went to. In support of his claim, the Veteran cites the deck log for December 28, 1970 and January 9, 1971 showing the ship was anchored in Da Nang Harbor. However, the Veteran's personnel records do not show he was on the USS Somers until March 1971. The evidence does show that the ship was in the official waters of Vietnam during some of the time he was on board. Specifically, in July 2009, the National Personnel Records Center verified that the USS Somers was in the official waters of the Republic of Vietnam from December 27, 1970 to January 9, 1971; January 23, 1971 to February 2, 1971; February 7, 1971 to March 3, 1971; March 9, 1971, to March 27, 1971; April 3, 1971 to April 11, 1971; April 25, 1971 to May 5, 1971; May 1, 1972 to may 7, 1972; May 10, 1972 to June 8, 1972; June 22, 1972 to July 1, 1972; July 4, 1972 to July 31, 1972; and from October 1, 1972 to October 13, 1972. The Veteran submitted an email from J.G. who reportedly served with the Veteran. He stated the ship did anchor in Da Nang Harbor, but he did not know the dates. In a statement dated September 2011, A.B., the Veteran's niece, related she had fond memories of things the Veteran sent back from his overseas deployments. She noted her grandmother had received two jewelry boxes. The Veteran submitted a photograph of his niece holding the jewelry box he said he purchased in Da Nang in January 1971. In November 2011, the Veteran's brother stated the Veteran made it a habit of purchasing mementos for their mother at every port at which his ship would anchor. He asserted that he bought her a jewelry box when he was in Da Nang around January 1971. In a letter dated November 2911, J.G. asserted that while he served aboard the USS Somers in 1971, the ship was deployed to Da Nang. He stated the ship entered the harbor proper, anchored and that various crew members were sent ashore to conduct ship business. V.S. wrote in a statement received in January 2012 that he was a crewmember aboard the USS Somers from January 1971 to October 1972. He recalled the chip operated for a day or so very close to the coast of Da Nang and there was a possibility some crewmembers went ashore for a mission. As noted above, the Veteran was not yet stationed aboard the USS Somers in January 1971, one of the times he stated he was in Da Nang. He was on the ship less than two months later, and the passage of time is such that the Veteran may have understandably misstated the date. In fact, review of the transcript of an RO hearing shows that the Veteran admitted that the year was difficult to remember due to the passage of time. The Veteran is competent to state he was in Vietnam. The Board has considered the Veteran's sworn testimony and finds his rendition of certain details regarding visiting Vietnam to be generally consistent with prior statements and testimony. There are some inconsistencies, but most seem to be due to a lack of clear memory of the times involved. The evidence in this case is certainly not compelling, but after carefully considering the record as a whole, the Board is left with the impression that the evidence for and the evidence against is at least in a state of equipoise. By law, the benefit of the doubt goes to the Veteran. 38 U.S.C.A. § 5107(b). Accordingly, the Board finds that the Veteran did set foot in Vietnam during his service. As such, it is presumed that he was exposed to herbicides. The Veteran was afforded an examination by the VA for diabetes mellitus in October 2009. He related diabetes mellitus, type II was diagnosed in 1992 when he got a physical examination for a trucking license. The diagnosis was diabetes mellitus, type II. In light of the determination that the Veteran served in Vietnam, and he has been diagnosed with diabetes mellitus, type II, the Board finds, service connection is warranted under the presumption for certain Vietnam veterans. ORDER Service connection for diabetes mellitus, type II is warranted. To this extent, the appeal is granted. REMAND The Veteran also asserts service connection is warranted for erectile dysfunction, facial tumors and blindness in both eyes. Private medical records show the Veteran was seen in March 2002 and wanted to talk about erectile dysfunction that he was having. It was indicated it was probably due to diabetes mellitus. The assessment was erectile dysfunction, and medication was prescribed. The Board notes there was no indication of erectile dysfunction on the VA examination for diabetes mellitus in October 2009. The Veteran was seen by a private physician in March 2004 for an evaluation of an extensive moderately differentiated squamous cell carcinoma of the left face. He was seen one year earlier with a 6 malignant melanoma papule on the left cheek region. This was excised and then recurred and was serially excised on three different occasions, all with persistently positive margins. Surgery was recommended, and it was indicated the Veteran would benefit from postoperative radiation therapy. A June 2007 VA outpatient treatment note reveals the Veteran had skin cancer of the face three times, and reportedly had radiation treatment. He stated he was blind. When seen by a private physician in May 2006, it was reported the Veteran had had nine eye surgeries in the previous year, and that he was blind in his left eye from radiation therapy for skin cancer on the left side of his face. A VA examination of the eyes in October 2009 shows a diagnosis of diabetic retinopathy. The examiner commented there was an issue as to how much diabetes accounted for the Veteran's visual loss and how much could be blamed on the treatment of his skin cancers. The Veteran was also afforded a VA examination of the eyes in October 1009. The examiner noted the Veteran was legally blind due to proliferative diabetic retinopathy. He added he could not rule out an exacerbation of the left eye due to radiation therapy. Under the circumstances, the Board finds additional development of the record is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he provide the name, addresses and dates of treatment from any medical provider, VA and non-VA, who has treated him for facial cancer, erectile dysfunction and eye problems. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran, not already of record. 2. The RO should schedule a VA genitourinary examination to determine whether the Veteran has erectile dysfunction and, if so, its etiology. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's erectile dysfunction is related to diabetes mellitus. The rationale for any opinion should be set forth. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The claims folder should be made available to the examiner in conjunction with the examination. 3. The RO should schedule a VA dermatology examination to determine the nature and etiology of any facial tumors. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's facial tumors are related to service, to include his exposure to Agent Orange therein. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The rationale for any opinion must be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 4. The RO should schedule a VA eye examination to determine the nature and etiology of the Veteran's current eye disability. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's current eye disability is related to his service-connected diabetes mellitus. The examiner should address the comment in the October 2009 VA eye examination to the effect there was an issue of how much diabetes accounted for the Veteran's visual loss and how much was attributable to his treatment for skin cancers. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The rationale for any opinion must be set forth. The claims folder should be made available to the examiner in conjunction with the examination. 5. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claims may be granted. If not, he 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