Citation Nr: 1337425 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-17 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, mood disorder, and adjustment disorder. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides (Agent Orange). 3. Entitlement to service connection for glaucoma, claimed as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from June 1960 to August 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina (the appeal was later transferred to the Montgomery, Alabama RO). The Veteran submitted a Notice of Disagreement (NOD) with this determination in September 2007; a statement of the case was issued in April 2009; and the Veteran perfected his appeal in April 2009. In a January 2008 letter, the Veteran requested a local hearing at the RO, either Video Conference or Travel Board hearing. Subsequently, the RO scheduled and held a Decision Review Officer (DRO) personal hearing in February 2009. On the April 2009 Substantive Appeal, the Veteran indicated that he did not wish to have a BVA hearing, and requested a DRO review of his case. Consequently, the RO sent an October 2011 notice letter to the Veteran informing him that he was provided a DRO hearing in February 2009, and unless he had additional compelling evidence, a second DRO hearing would serve no purpose. He was then informed that he could request a Travel Board Hearing. However, the Veteran did not subsequently request a BVA hearing after this notice was sent 38 USCA § 20 704(d) (2013). This matter was previously before the Board in June 2013, at which time it was remanded for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The evidence does not confirm that the Veteran set foot on land in the Republic of Vietnam, that he served on the inland waterways of the Republic of Vietnam, or that he was exposed to an herbicide agent (to include Agent Orange) during service. 2. Diabetes mellitus was not present until many years after the Veteran's discharge from service and is not etiologically related to service. 3. Service connection is not in effect for diabetes mellitus, type II and cannot, therefore, serve as a basis for a secondary service connection claim for glaucoma; moreover, glaucoma was not present until many years after the Veteran's discharge from service and is not etiologically related to service. CONCLUSIONS OF LAW 1.The criteria for establishing service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing service connection for glaucoma have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided notice in September 2006 regarding the evidence needed to substantiate his claims, as well as his and VA's respective responsibilities for obtaining such evidence and notice regarding effective dates and disability ratings. His claim was thereafter initially adjudicated in March 2007. The record also reflects that VA has obtained the Veteran's active duty service treatment records (STRs) and service personnel records (SPRs) as well as all VA and private treatment records identified by the Veteran. Additionally, the RO has recently obtained records from the Social Security Administration (SSA). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. While the Veteran has not been afforded a VA examination with an opinion regarding his claims, the Board finds that one is not necessary. The Veteran's contention is that his diabetes mellitus type II should be afforded presumptive service connection on the basis of exposure to herbicides during service. However, as will be explained below, a finding of diabetes mellitus type II is already of record. Furthermore, the Veteran's service, as will be explained, does not constitute service in the Republic of Vietnam, as it is defined for VA purposes. 38 C.F.R. § 3.307(a)(6)(iii). With respect to his claim for glaucoma, the Veteran asserts this disability is secondary to diabetes mellitus. As service connection is for diabetes mellitus is being denied herein, an examination is also not necessary for the glaucoma claim. He has presented no other theories of entitlement or basis on which to grant either the diabetes mellitus, or the glaucoma claim. Therefore, the Board finds that a remand to afford the Veteran a VA examination is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to the claims. Accordingly, the Board will address the merits of the claims. Service Connection - Diabetes Mellitus, Type II Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Throughout the pendency of this appeal, the Veteran claims that this current diabetes mellitus, type II, is due to his alleged exposure to Agent Orange while he served aboard the U.S.S. Pyro, an ammunition ship. Specifically, the Veteran believes he drank water and inhaled air that was contaminated with Agent Orange while the U.S.S. Pyro was stationed in Subic Bay (Philippines) and/or off the shore of Vietnam. See, e.g., June 2009 Statement from Veteran and DRO Hearing Testimony. He also contends that, as a deck hand, he was exposed to Agent Orange while cleaning returning ships that had been deployed in the waters off the shore of Vietnam. Notably, the Veteran does not assert that he served on land or in inland waterways in the Republic of Vietnam. In fact, during his February 2009 DRO hearing, the Veteran freely admitted that he was never close enough to see land (i.e., Vietnam) while he was aboard the U.S.S. Pyro; rather, he asserted that the water coming out of the Vietnamese rivers and the streams, as well as the air from Vietnam, entered gulf area where he was stationed and contaminated the water and air with Agent Orange/herbicides. See DRO Hearing Transcript, p. 3. In this regard, the Veteran's service personnel record do not substantiate that he served on the landmass or inland waters of the Republic of Vietnam. Moreover, the command Histories of the U.S.S. Pyro do not indicate that the ship operated in the inland waters of the Republic of Vietnam. See Command History Report. Rather, they indicate that the ship was periodically stationed at "Yankee Station" (or the Gulf of Tonkin, see below), between 1961 and 1962. The U.S.S. Pyro is also not listed in a compilation of those vessels characterized as "brown water vessels." See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicides," November 2012. The law provides that "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(f). Regulations provide that if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for diabetes mellitus, type II. 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. 38 C.F.R. § 3.307(a)(6)(ii). In order for presumptive service connection to be granted, the evidence must demonstrate that the veteran was present at some point on the landmass or inland waters of the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Service on a deep-water naval vessel in waters offshore of the Republic of Vietnam is not qualifying service in the Republic of Vietnam for purposes of this presumption. Id. at 1193-94; VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997). Preliminarily, the Board takes judicial notice of the fact that "Yankee Station," was a point in the Gulf of Tonkin off the coast of the Republic of Vietnam used by U.S. naval aircraft carriers to launch air strikes during the Vietnam era. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201 (b) that courts may take judicial notice of facts not subject to reasonable dispute). The command history of the U.S.S. Pyro confirms that it was likely stationed at Yankee Station in support of the 7th fleet during at least a portion of the Veteran's time aboard the vessel. The Board does not dispute this fact. On review, however, the Board finds that the Veteran cannot be presumed to have been exposed to Agent Orange based solely on his service aboard the Pyro. In this regard, the evidence of record does not demonstrate, nor does the Veteran otherwise contend that he served on the landmass or inland waters of the Republic of Vietnam. See DRO Hearing Testimony. Rather, the evidence of record shows that the Veteran served aboard the U.S.S. Pyro, an ammunition ship, from approximately January 1961 to May 1962, and that it operated, at times, off the coast of the Republic of Vietnam. See U.S.S. Pyro Command History. Again, the U.S.S. Pyro is not listed in a compilation of those vessels characterized as "brown water vessels." See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicides," November 2012. Moreover, while it is clear to the Board that the Veteran believes that his service aboard the U.S.S. Pyro, either off the coast of Vietnam or in Subic Bay (Philippines), should be given the same presumption that service on the landmass or in the inland waters of Vietnam is given (based on the proximity to the shores of Vietnam where herbicides were used), the Board is bound by the current regulations and as discussed, the current regulations require presence at some point on the landmass or inland waters of the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168. By his own testimony and statements, the Veteran admitted that he was only off the coast of Vietnam and otherwise in the Philippines, and not on the landmass or in the inland waters of the Republic of Vietnam. Accordingly, there is no evidence that the Veteran has service on the landmass or in the inland waters of Vietnam, and exposure to herbicides during service may not be presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). To the extent that the Veteran claims that he inhaled or drank herbicides, and/or cleaned ships that he believed were contaminated with herbicide agents, he is competent to report his observations and experiences when no special knowledge or training is required. However, the Board does not find that the Veteran is competent to identify herbicides in particles on ships, in water, or in the air. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Therefore, the Board finds that the Veteran is not competent to assert that he was exposed to Agent Orange, or any other herbicide, during service and his statements are of no probative value. Despite the above finding, when a veteran does not qualify for service connection on a presumptive basis, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). While the Board is required to review all issues reasonably raised from a liberal reading of the record, when there is, "no evidentiary support for a particular theory of recovery," the Board need not consider such theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In this case, there is no evidentiary support for any theory of recovery other than service connection on the basis of herbicide exposure. Indeed, the lay and medical evidence reflects that diabetes did not manifest in service, the Veteran's endocrine system was normal upon examination at separation in 1962, and diabetes was not diagnosed until 2003, well outside the one-year presumptive period. There is also no claim or evidence that diabetes is related to service other than the Veteran's argument that it was due to Agent Orange exposure as discussed above. For the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Service Connection - Glaucoma The Veteran also seeks entitlement to service connection for glaucoma as secondary to diabetes mellitus. See August 2006 Statement from Veteran; see also DRO Hearing Transcript. Notably, he does not contend, and the evidence does not otherwise show that glaucoma is related to service and/or claimed herbicide exposure therein. Preliminarily, the Board notes that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnoses relating to the eyes and/or glaucoma. Specifically, his August 1962 clinical examination at separation indicated that his eyes were normal. Glaucoma was not clinically diagnosed until approximately 2005, nearly 40 years after his separation from service. See VA Treatment Records. The Board notes that this is evidence against any claim that such is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). In any event, the Veteran does not allege that he incurred glaucoma while in service, that it was due to claimed herbicide exposure while in-service(the assertion of which was already addressed above), or that he has experienced continuous/ongoing eye problems since service; rather, he contends that he developed the disorder secondary to diabetes mellitus. However, service connection for diabetes is being denied by this decision. Hence, any claim for service connection secondary to diabetes must fail. See 38 C.F.R. § 3.310. While the Board is required to review all issues reasonably raised from a liberal reading of the record, when there is, "no evidentiary support for a particular theory of recovery," the Board need not consider such theory. Robinson, supra. In this case, there is no evidentiary support for any theory of recovery other than service connection on a secondary basis. Indeed, as noted, the lay and medical evidence reflects that glaucoma did not manifest in service, the Veteran's eyes were normal upon examination at separation in 1962, and glaucoma was not diagnosed until 2005, many years after his separation service. There is also no claim or other evidence that glaucoma is related to service. In summary, there is no credible evidence indicating a relationship between current glaucoma and the Veteran's service, and as service connection is not in effect for diabetes, the claim must also be denied on a secondary basis. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). ORDER Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure (Agent Orange) is denied. Entitlement to service connection for glaucoma, claimed as secondary to diabetes mellitus, is denied. REMAND The Veteran also seeks service connection for an acquired psychiatric disorder, variously diagnosed. In the June 2013 remand, the Board directed that a VA examination be conducted to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, mood disorder, and adjustment disorder. The remand directive specifically indicated that the examiner should address this question on both a direct and secondary basis. The August 2013 VA examiner did not provide an opinion regarding whether the Veteran's acquired psychiatric disorder is related to any service-connected disability, namely, asbestosis. As such, the examination report is inadequate for the purpose of deciding this claim. Remand by the Board imposes upon the VA Secretary a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, the file should be returned to the VA examiner for an addendum opinion regarding secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the physician who conducted the August 2013 mental examination. The examiner should be advised of the Veteran's service-connected disabilities, namely, asbestosis. The examiner should be asked to review the claims file. Following review of the claims file, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present acquired psychiatric disorder was caused or aggravated (permanently worsened) by any service-connected disability, to specifically include asbestosis. Please specifically address whether there was any increase in severity of the Veteran's acquired psychiatric disorder that was proximately due to or the result of the Veteran's service-connected disability, namely, asbestosis, and not due to the natural progress of the Veteran's acquired psychiatric disorder. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer the requested opinion, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the previous examiner is unavailable, the claims file should be forwarded to a similarly qualified physician for review and comment. If the examiner determines that an additional examination is necessary to address the above questions, such examination should be scheduled. 2. Then, readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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.2013). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs