Citation Nr: 1338529	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  08-01 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire



THE ISSUES

1.  Entitlement to service connection for a prostate disorder, to include as due to herbicide (Agent Orange) exposure. 

2.  Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. 

3.  Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus. 

4.  Entitlement to service connection for diabetic retinopathy, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus. 

5.  Entitlement to service connection for erectile dysfunction, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the United States Navy from February 1968 to December 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007 and July 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

In November 2007, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing).  A transcript of that hearing is associated with the claims file. 

The Board remanded the appeal in December 2011 for further development.  The case has since been returned to the Board for appellate review.  

In the same December 2011 Board decision, the Board also remanded the issue of service connection for bilateral hearing loss.  After performing additional development as requested, the RO granted service connection for bilateral hearing loss in a September 2012 rating decision.  Because the Veteran has not appealed either the initial rating or effective date assigned for his bilateral hearing loss, that issue is no longer on appeal.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues).

A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records.  However, the RO has reviewed these records.  Thus, there is no prejudice for the Board to now consider these records.



FINDINGS OF FACT

1.  The Veteran did not have service, or other duty or visitation, in the Republic of Vietnam.  The evidence also does not show that he otherwise had exposure to Agent Orange or other herbicide agents during his active service. 

2.  The Veteran's current type II diabetes mellitus and peripheral neuropathy of the lower extremities did not manifest in service or within one year thereafter and are not related to his active service, including herbicide exposure.  

3.  The Veteran's enlarged prostate disorder, diabetic retinopathy, and erectile dysfunction did not manifest in service and are not related to his active service, including herbicide exposure.

4.  Although the Veteran's peripheral neuropathy, diabetic retinopathy, and erectile dysfunction may have been caused by his type II diabetes mellitus, the Veteran is not service-connected for the underlying type II diabetes mellitus.  


CONCLUSIONS OF LAW

1.  Type II diabetes mellitus, peripheral neuropathy of the lower extremities, a prostate disorder, diabetic retinopathy, and erectile dysfunction were not incurred in active service, nor may any disorder be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313 (2013).

2.  Peripheral neuropathy, diabetic retinopathy, and erectile dysfunction are not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in June 2006, July 2006, January 2007, and December 2011.  These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection and secondary service connection claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In addition, the June 2006, July 2006, and December 2011 VCAA letters provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Moreover, although the Veteran's service treatment records are lost or missing in the present case, the RO correctly informed the Veteran in the January 2007 VCAA letter that he can submit "alternative" sources in place of his missing service treatment records.  See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, Block b.

With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim.  Pelegrini II, 18 Vet. App. at 120 (2004).  In the present case, the Board notes that the RO did not provide the Veteran with all VCAA notice prior to the April 2007 and July 2007 adverse determinations on appeal.  However, in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made.  Id.  Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process.  In other words, he must be given an opportunity to participate effectively in the processing of his claims.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In the instant case, the timing error was cured.  After providing additional VCAA notice on multiple occasions, the RO readjudicated the claims in SSOCs, to include the most recent September 2012 SSOC.  Thus, the timing defect in the notice has been rectified.  Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

With respect to the duty to assist, the RO has secured the Veteran's VA treatment records and private medical evidence as identified by the Veteran.  For his part, the Veteran has submitted personal statements, a lay statement from his spouse, argument from his representative, and private medical evidence.  He has not identified any additional, outstanding evidence that is relevant to his claims being decided herein.

The Board acknowledges that no medical examination has been conducted and that no medical opinion has been obtained with respect to the Veteran's service connection claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). While the Board has considered the Veteran's lay assertions, the standards of McLendon are not met in this case. 
There is no allegation of treatment or symptoms of type II diabetes mellitus (with associated manifestations) or a prostate disorder during active service from 1968 to 1971.  There is also no allegation or record of the Veteran setting foot in Vietnam, and the evidence does not show that he was otherwise exposed to herbicides.  Thus, there is no disease, injury, or event in service to which a current disorder could be related.  Moreover, there is no evidence indicating that any of his current disorders could be related to service, nor any evidence of continuity of symptomatology for any of these disorders since discharge from service in 1971.  The Federal Circuit has held that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and the Veteran's mere conclusory generalized lay statement that service event or illness caused the claimant's current condition, such as in the present case, is insufficient to require the Secretary to provide a VA examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).  Therefore, a VA examination and opinion is not warranted for the disorders at issue in the present case.   

With regard to the November 2007 DRO hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the DRO who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012).  At the DRO hearing in November 2007, the DRO, the Veteran, and the representative outlined the herbicide-related service connection claims on appeal and engaged in a discussion as to substantiation of those claims.  There was a discussion by the parties at that hearing of what constitutes "service in Vietnam" for purposes of applying the herbicide presumption.  There was a specific discussion of the pertinent regulations in this case - 38 C.F.R. § 3.307(a) and 38 C.F.R. § 3.313(a).  The actions of the DRO supplement the VCAA and comply with any related duties owed during a hearing.  Overall, the hearing was legally sufficient, and there has been no allegation to the contrary.  Moreover, the Veteran and his representative have not requested another hearing.  

With regard to the previous December 2011 Board remand, the Board finds that the RO/AMC substantially complied with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance).  Specifically, pursuant to the remand, the RO/AMC provided additional VCAA notice, secured additional VA treatment records, and engaged in extensive efforts to locate the Veteran's missing service treatment records.  As such, the RO/AMC has substantially complied with the Board's instructions.  

With regard to missing service treatment records, the RO sent a Personal Information Exchange System (PIES) request for the Veteran's service treatment records on June 5, 2006.  The National Personnel Records Center (NPRC) in St. Louis, Missouri, responded that all service treatment records were sent from "Code 13" (NPRC) on June 26, 2006.  However, the RO in Manchester, New Hampshire, has stated that it never received the service treatment records sent by the NPRC.  See February 2012 RO email response.  In any event, these service treatment records are not present in the claims folder.  In cases where service treatments are missing or presumed destroyed, the Board has a heightened duty to assist the Veteran with the development of evidence in support of his claim.  See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records.  See Cromer, 19 Vet. App. at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown).

In the present case, VA has met its heightened duty to assist the Veteran with the development of evidence in support of his claims, despite the missing service treatment records.  Specifically, the Board remanded the case in December 2011 for further clarification from the RO regarding the Veteran's missing service treatment records, as well as further efforts to secure them.  In this regard, the RO then made extensive efforts to locate the missing service treatment records.  Nevertheless, VA received the following negative responses.

In a January 2012 email, the Records Management Center (RMC) responded that it was unable to locate any service treatment records for the Veteran.

In February 2012, NPRC indicated that it was unable to locate any service treatment records for the Veteran, but confirmed that all service treatment records were sent from "Code 13" (NPRC) to the RO on June 26, 2006.

In a February 2012 email, the RO in Manchester, New Hampshire indicated that it never received the service treatment records sent by the NPRC.  The SHARE and MAP'd databases were checked.  

In a February 2012 Formal Finding Memorandum, the AMC detailed the efforts as listed above.  The AMC indicated that all procedures to obtain the Veteran's complete service treatment records were correctly followed and that all efforts had been exhausted; therefore, any further attempts would be futile.  See 38 C.F.R. § 3.159(c)(2) and (3).  Thus, the Board finds no basis for further pursuit of any missing service treatment records, as such efforts would be futile at this juncture.  Moreover, the Veteran has never indicated that any of his service treatment records would reveal any treatment or symptoms for any of the disorders on appeal.  Indeed, his post-service treatment records document that these disorders began after service.  See 38 U.S.C.A. § 5103A(c)(1) (VA is only required to obtain "relevant" service records).  Thus, any further efforts towards obtaining these records would likely be both futile and not of assistance to this inquiry because any missing service treatment records would not pertain to the disorders at issue.  38 C.F.R. § 3.159(c)(2), (3).  In light of the efforts discussed above, VA has met its heightened obligation to satisfy the duty to assist.  See again Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.



Governing Laws and Regulations for Service Connection

Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306.  

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
	
Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

Under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" (such as diabetes mellitus or peripheral neuropathy) shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  See also Groves v. Peake, 524 F.3d 1306, 1309 (2008).  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear cut clinical entity, at some later date.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology.  38 C.F.R. § 3.303(b).  

Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In order to establish presumptive service connection as chronic disease, diabetes mellitus or an organic disease of the nervous system, such as peripheral neuropathy, must manifest itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d). 

The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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); 38 C.F.R. § 3.307(a)(6)(iii).  The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease.  38 C.F.R. § 3.307(a)(6)(ii).  

The following disorders are associated with herbicide exposure for purposes of this presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).

To warrant service connection, type II diabetes mellitus may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii).  With regard to peripheral neuropathy, effective September 6, 2013, VA recently amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide exposure.  See 78 Fed. Reg. 54763- 54766 (September 6, 2013) (final rule) (replacing the terms "acute and subacute" and "transient" peripheral neuropathy with "early onset" peripheral neuropathy; removing the requirement under the former §§ 3.307(a)(6)(ii) and 3.309(e) that "acute and subacute" peripheral neuropathy appear within weeks or months after exposure; and removing the requirement that the condition resolve within two years of the date of onset in order for the herbicide presumption to apply).  In summary, to warrant service connection, "early-onset" peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to a herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In short, when considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection.  See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 



Analysis - Service Connection

The Veteran has alleged that he was exposed to Agent Orange or other herbicides while serving aboard the USS John W. Weeks in the coastal waters off Vietnam in 1969 and 1970.  He has maintained that his type II diabetes mellitus, prostate disorder, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction are presumptively associated with his active service in Vietnam.  However, throughout the entire appeal, the Veteran has specifically denied that he was ever present on the landmass of Vietnam or inland waters of Vietnam.  He has denied that his vessel ever docked in a Vietnamese port, and he has denied setting foot on the landmass of Vietnam.  Instead, he has alleged that he witnessed large clouds of Agent Orange "drifting offshore and over the ship" on several occasions.  He has provided no further details as to the precise circumstances of his exposure.  See September 2008 representative statement; November 2007 DRO hearing testimony at pages 1-2.  

Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for type II diabetes mellitus, a prostate disorder, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection for his current disabilities at issue.  Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  Specifically, VA and private treatment records dated from 2004 to 2012 have diagnosed and recorded treatment for type II diabetes mellitus, an enlarged prostate, peripheral neuropathy of the lower extremities, diabetic retinopathy, and erectile dysfunction.  Thus, the Veteran clearly has these current disorders, and the remaining question is whether these disorders manifested in service or are otherwise related to in-service herbicide exposure.

Although peripheral neuropathy of the lower extremities has been diagnosed, there is no lay or medical evidence of record of "early-onset" peripheral neuropathy manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service, which would be 1970.  38 C.F.R. § 3.307(a)(6)(ii).  The Veteran is therefore not entitled to service connection for "early-onset" peripheral neuropathy on a presumptive basis based on herbicide exposure as discussed in 38 C.F.R. § 3.309(e).

In addition, the Veteran's current enlarged prostate, retinopathy, and erectile dysfunction diagnoses are not on the list of diseases associated with herbicide exposure for purposes of the presumption.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  The Board acknowledges that prostate cancer is a disease associated with herbicide exposure for purposes of the presumption.  38 C.F.R. § 3.309(e).  However, no such diagnosis for prostate cancer is of record.  The Veteran is therefore not entitled to service connection for an enlarged prostate, retinopathy, and erectile dysfunction on a presumptive basis based on herbicide exposure as discussed in 38 C.F.R. § 3.309(e).  

However, private and VA treatment records dated from 2004 to 2012 confirm that type II diabetes mellitus was manifest to a degree of at least 10 percent or more after service for the Veteran.  38 C.F.R. § 3.307(a)(6)(ii).  That is, the Veteran's diabetes mellitus currently requires a restricted diet and insulin.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  Regardless, as discussed in detail below, the Board finds that the Veteran does not have "service in Vietnam," such that exposure to herbicides may not be presumed, and herbicide exposure is not otherwise shown by the evidence of record.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  Thus, service connection for type II diabetes mellitus on a presumptive basis as an herbicide-related disease is not warranted.  

The only remaining question is whether there is sufficient evidence to demonstrate that the Veteran had "service in Vietnam," such that exposure to herbicides may be presumed.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

"Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  In fact, the Federal Circuit issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption.  A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  Haas, 525 F.3d at 1193-1194.  See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam).  In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM).  Haas, 525 F.3d at 1196.  
       
In order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii).  See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance.  Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k (December 16, 2011).  Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides.  Id.  The M21-1MR does note an exception regarding Veterans who served as a coxswain and report going ashore during anchorage.  Id.  

In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to herbicides is not presumed in such instances.  However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.  

Upon review of the evidence, the Board finds that the Veteran does not have "service in Vietnam," such that exposure to herbicides may not be presumed.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  Although the Veteran's DD Form 214 verifies that he received the VSM with three bronze service stars and the Armed Forces Expeditionary Medal (AFEM), the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM or any of these medals.  Haas, 525 F.3d at 1193-1194, 1196.  Also, none of these medals serve as sufficient proof he actually set foot on the Vietnam landmass.  Moreover, in August 2006, the NPRC confirmed that the Veteran served aboard the USS John W. Weeks in the official waters of the Republic of Vietnam from March to July of 1969.  He served as a yeoman and in administrative and clerical work.  However, the NPRC could not confirm whether he had "in-country" service in the Republic of Vietnam.  Most importantly, at the DRO hearing, the Veteran denied ever setting foot in Vietnam.  Further, there is no evidence or allegation that the USS John W. Weeks visited the inland waterways of Vietnam.  Haas, 525 F.3d at 1187-1190.  In fact, in a July 2007 memorandum, the U.S. Armed Services Center for Unit Records Research (USASCURR) provided a description of the duties of the USS John W. Weeks in 1969 in the waters of the Republic of Vietnam, but there was no description of a visit to the inland waterways of Vietnam.  A Compensation Service Intranet link provided in the M21-1MR also fails to list the USS John W. Weeks as a "brown-water" vessel that ever travelled the inland waterways of Vietnam.  See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block k (December 16, 2011).

Thus, there is no probative evidence that the Veteran had duty or visitation in Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  See also VAOPGCPREC 27-97 (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam).  Therefore, it cannot be presumed that the Veteran was exposed to an herbicide agent during his service.  

Because the evidence of record does not confirm that the Veteran served "in-country" in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related disease under 38 C.F.R. § 3.309(e) to be applicable.  In this regard, the Veteran has alleged that he witnessed large clouds of Agent Orange "drifting offshore and over the ship" on several occasions.  See September 2008 representative statement; November 2007 DRO hearing testimony at pages 1-2.  He has provided no further details as to the precise circumstances of his alleged exposure.  He did not describe actual contact in a physical or respiratory sense with the alleged Agent Orange cloud.  There is also no probative or confirmatory evidence he was exposed to Agent Orange or other herbicide in such an instance.  In fact, in a November 2006 VA Agent Orange Program Note on Virtual VA, when asked how he was exposed to Agent Orange, the Veteran reported that he was "unsure."  Thus, there is no probative, persuasive evidence of record demonstrating Agent Orange or other herbicide exposure for the Veteran.  As such, the Board finds the evidence is insufficient to demonstrate exposure to herbicides during his active service, and the Veteran is therefore not entitled to service connection for on a presumptive basis for any of the disorders on appeal as discussed in 38 C.F.R. § 3.309(e).  

This does not, however, preclude the Veteran from establishing his entitlement to service connection for his disorders with proof of actual direct causation. Combee, 34 F.3d at 1043.  In fact, the Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999).  

The Veteran's service treatment records are missing and unavailable, as discussed in detail above.  That notwithstanding, there is no allegation from the Veteran or any other evidence of record of complaints, treatment, or diagnoses of type II diabetes mellitus, a prostate disorder, peripheral neuropathy, diabetic retinopathy, or erectile dysfunction during service from 1968 to 1971.  

Following his military service, there is no lay assertion from the Veteran or clinical evidence suggesting or demonstrating continuous, ongoing symptomatology for type II diabetes mellitus, a prostate disorder, peripheral neuropathy, diabetic retinopathy, or erectile dysfunction subsequent to his separation from service in December 1971.  The first post-service evidence in the claims folder of diabetes mellitus, or any of the other disorders at issue, is from 1990, which was nearly two decades after discharge from service.  Specifically, a June 2007 VA primary care note on Virtual VA documented a history of type II diabetes mellitus in 1990.  Private treatment records dated from 2004 to 2012 document a similar date of onset for the type II diabetes mellitus. The Board has considered that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991).  However, in this case, there is no lay allegation of continuous symptoms for the disorders on appeal since separation from service.  

Because there is no probative evidence of diabetes mellitus or peripheral neuropathy within one year after service in 1972, the Veteran is also not entitled to application of the presumptive provisions for certain enumerated chronic diseases.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

With regard to a nexus, there is no probative evidence of record establishing a relationship between the Veteran's present type II diabetes mellitus, prostate disorder, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction disabilities and his period of active service.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Absent such evidence of a nexus, service connection is not in order for any of these current disabilities.  

With regard to lay evidence, the Board acknowledges the Veteran is competent to report purported symptoms of type II diabetes mellitus, a prostate disorder, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  See 38 C.F.R. § 3.159(a)(2).  Based on recent case law, the Veteran, in certain circumstances, can also be competent to testify to the fact that the symptoms he experienced in service or immediately thereafter are reflective of the same condition he is currently diagnosed with.  Davidson, 581 F.3d at 1316.  However, in the present case, the Veteran has made no allegation of in-service symptoms or ongoing symptoms immediately after service.  Overall, the Board has found the Veteran's lay statements are less persuasive than the post-service medical evidence of record.  

Although the Veteran's service treatment records are missing in the present case, in light of the above detailed analysis, the Board has met its heightened obligation to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005).  Accordingly, the preponderance of the evidence is against the claims for service connection for type II diabetes mellitus, a prostate disorder, peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Therefore, the claims must be denied. 


Governing Laws and Regulations for Secondary Service Connection

In addition, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b), effective October 10, 2006.  See 71 Fed. Reg. 52,744-52,747 (September 7, 2006).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).



Analysis - Secondary Service Connection 

The Veteran has contended that his peripheral neuropathy, diabetic retinopathy, and erectile dysfunction are caused or aggravated by his type II diabetes mellitus.  

Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to secondary service connection for peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  

The Board does not dispute that VA and private treatment records dated from 2004 to 2012 suggested that the Veteran's type II diabetes mellitus caused his current peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  Throughout the record, VA and private medical personnel have discussed how the onset of these disorders is associated with his type II diabetes mellitus.  Nonetheless, absent an award of service connection for the underlying type II diabetes mellitus, there is no basis to establish secondary service connection by way of causation or aggravation for peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439; Tobin v. Derwinski, 2 Vet. App. 34.  

Accordingly, the preponderance of the evidence is against the Veteran's secondary service connection claims for peripheral neuropathy, diabetic retinopathy, and erectile dysfunction.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  



ORDER

Service connection for a prostate disorder, to include as due to herbicide (Agent Orange) exposure, is denied.  

Service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, is denied.   

Service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus, is denied.  

Service connection for diabetic retinopathy, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus, is denied.  

Service connection for erectile dysfunction, to include as due to herbicide (Agent Orange) exposure and as secondary to type II diabetes mellitus, is denied.  



____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs