Citation Nr: 1338582 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 06-35 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for coronary heart disease, claimed as due to herbicide exposure or as secondary to diabetes mellitus. 3. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy, claimed as secondary to diabetes mellitus. 5. Entitlement to service connection for impotence, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection for cataracts, claimed s secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from July 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2008. A transcript of that hearing is of record. The issues were remanded for further development in November 2009, March 2011, September 2012, and May 2013. The requested development has been completed and the case has been returned for further appellate review. This appeal was processed using the Veteran's Benefits Management System (VBMS). In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not have confirmed duty or visitation in the Republic of Vietnam or exposure to an herbicide agent in service. 2. The Veteran's type II diabetes mellitus was not shown in service or for many years thereafter, and there is no competent evidence suggesting the disability is related to service for reasons other than the claimed herbicide exposure. 3. Coronary heart disease was not shown in service or for many years thereafter, and there is no competent medical or lay evidence suggesting the disability is related to service for reasons other than the claimed herbicide exposure. 4. Hypertension was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 5. Peripheral neuropathy was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 6. Impotence was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 7. Cataracts were not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing entitlement to service connection for coronary heart disease have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 4. The criteria for establishing entitlement to service connection for peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 5. The criteria for establishing entitlement to service connection for impotence have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 6. The criteria for establishing entitlement to service connection for cataracts have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in January 2005, February 2005, October 2005, January 2007, and January 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice was timely because the claims were readjudicated in the July 2013 supplemental statements of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran appeared at a hearing before a Decision Review Officer (DRO) and before the Board. He presented oral testimony in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) or DRO who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ and DRO identified the issues to the Veteran, and relevant testimony concerning events in service, treatment history, and symptomatology was elicited. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service personnel records, service treatment records, Social Security Administration (SSA) records, and available private and VA treatment records have been obtained. In addition, the Veteran was provided with a VA examination in connection with the claims. The Board also notes that actions requested in the prior remand have been undertaken. Instructions pertinent to the claims being decided included attempting to verify the Veteran's alleged herbicide exposure in Vietnam. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus, cardiovascular disease, hypertension, or an organic disease of the nervous system such as peripheral neuropathy, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). 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 C.F.R. § 3.307(a). A veteran is entitled to a presumption of service connection if he is diagnosed with type II diabetes mellitus, ischemic heart disease, acute or subacute peripheral neuropathy, or other enumerated diseases associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during the prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "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 on the landmass or inland waters of the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). If the rebuttable presumption provisions are not satisfied, then the Veteran's claim shall fail. 338 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). Notwithstanding, a Veteran may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he was exposed to Agent Orange during service, and that his current type II diabetes mellitus and coronary heart disease are due to that exposure. However, the evidence of record does not show that the Veteran's service involved duty or visitation in the Republic of Vietnam to warrant the presumption of exposure or the presumption of service connection. The Veteran served in the Navy as seaman apprentice and able seaman aboard the USS Vega, from July 1964 to July 1966. He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal (Vietnam), and Vietnam Service Medal. Essentially he contends that sometime in the summer of 1965, the USS Vega was stationed off shore at Da Nang Harbor, Vietnam, and he visited the port when he escorted an officer ashore on one occasion. He has also reported being involved with resupply operations at Da Nang Harbor during the deployment. On remand, the RO contacted the Naval Historical Center and the National Archives and Records Administration, to request ship logs for the USS Vega for the periods from July 25, 1965 through September 17, 1965; and February 20, 1966 through April 6, 1966, when the USS Vega was in the official waters of Vietnam to attempt to corroborate whether the USS Vega docked in Vietnam during the Veteran's service or transported people from the ship to shore. In response, official sources indicated that the USS Vega was not in the vicinity of Vietnam from February 1966 to April 1966. Ship logs were provided for the period requested, from July to September 1965, which failed to document deployment of sailors ashore to Vietnam, and there were no resupply operations during that time. As such, the RO determined that the Veteran was not in active duty when USS Vega served the inland waters of Vietnam citing to the ship logs which failed to confirm any duty or visitation to Vietnam. It was further noted that resupply operations were conducted in September 1966, June 1969, and from November to December 1970. Also, the Veteran's personnel records did not indicate that he was ever located on the ground in Vietnam during his active service, and a National Personnel Records Center's search failed to confirm any duty or visitation to Vietnam. The only evidence of record supporting the Veteran's contentions of service in Vietnam is shown to be his own statements and testimony. No other evidence has been submitted in support of his claim of exposure to Agent Orange. A search of ship logs through official sources for the USS Vega for the periods from July 25, 1965 through September 17, 1965, and February 20, 1966 through April 6, 1966, failed to confirm any duty or visitation to Vietnam. While the Veteran is competent to report on activities he witnessed or participated in, the Board finds the official service records and the information from official sources more probative and persuasive concerning whether he visited Vietnam than the Veteran's allegations made in conjunction with the filing of this claims. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The evidence of record fails to show that the Veteran served on land or inland waterways in Vietnam. Thus, the most probative evidence is against a finding that the Veteran was exposed to herbicides including Agent Orange during his active duty, and the presumptions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013) are inapplicable. Accordingly, as the preponderance of the evidence is against a finding of herbicide exposure, service connection for type II diabetes mellitus and coronary heart disease as due to such exposure must be denied. Notwithstanding the above, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the service. Combee, supra. Here, however, the evidence does not reflect, and the Veteran does not contend, that his diabetes mellitus, coronary heart disease, hypertension, peripheral neuropathy, cataracts, or impotence, arose during service. Nor does the evidence show that any of these disorders became manifest within one year following discharge from service. With respect to post service medical records, while in connection with his claim the Veteran reported onset of diabetes mellitus in 1972, private treatment records show that the Veteran was initially diagnosed with diabetes mellitus in 1975. Regardless, the evidence does not support a finding of diabetes mellitus within one year of discharge from active duty in 1966. With regard to heart disease, atherosclerotic heart disease was first shown in 1992, and while at the time the Veteran's medical history was noted to be negative for hypertension, hypertension was diagnosed shortly thereafter. Neuropathy was initially shown in 1998 when the Veteran complained of numbness in his hands and was diagnosed with mononeuropathy. Similarly, in a diabetes mellitus questionnaire in January 2005, the Veteran reported cataracts associated with diabetes mellitus, and VA treatment notes reflect a diagnosis of cataracts in February 2005. Finally, a VA examination in March 2010, following an examination of the Veteran and a review of the claims file, reported onset of diabetes mellitus in 1975, hypertension and hypertensive heart disease in 1992, peripheral neuropathy in 2000, and erectile dysfunction in 2002. This evidence weighs against the Veteran's claims. That is, the prolonged period without complaints or treatment for the claimed disabilities until many years after service, and the lack of clinical findings relating to diabetes mellitus, coronary heart disease, hypertension, peripheral neuropathy, erectile dysfunction, or cataracts, until 1975, 1992, 1998, 2002, and 2005, respectively, factor against the claims. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In sum, there is no competent evidence suggesting any of these disorders is related to service for reasons other than the alleged herbicide exposure. The Veteran alleges that his diabetes mellitus and coronary heart disease are due to Agent Orange exposure, and his hypertension, peripheral neuropathy, cataracts, and erectile dysfunction, are secondary to his diabetes mellitus. He has also asserted entitlement to service connection for coronary heart disease as secondary to diabetes mellitus. The Board notes the Veteran underwent VA examinations in March 2010. However, the examiner erroneously noted in the examination report that the Veteran's in-country service in Vietnam had been verified and as such based her opinions on an inaccurate factual premise. As noted above, the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange. To the extent that the VA examiner's opinions were predicated on the assumption that the Veteran was exposed to Agent Orange, the opinions have no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). Moreover, an additional examination or opinion is not necessary as such is not necessary to decide the claims. As noted above, there is no evidence of the claimed conditions in service, and the preponderance of the evidence is against a finding of herbicide exposure in service. The Veteran does not contend and the evidence does not suggest that his claimed disabilities are related to service for reasons other than the claimed herbicide exposure. In the absence of evidence of an in-service disease, injury, or event concerning the claimed conditions, a VA examination is not required as it would serve no useful purpose. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). With respect to the Veteran's claims for service connection for hypertension, peripheral neuropathy, cataracts, erectile dysfunction, and coronary heart disease on a secondary basis as due to diabetes, as noted above, service connection for diabetes has not been established. Accordingly, there is no legal basis upon which to award service connection for hypertension, peripheral neuropathy, cataracts, erectile dysfunction, and coronary heart disease on a secondary basis. 38 C.F.R. § 3.310. For all the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claims for service for diabetes mellitus, coronary heart disease, hypertension, peripheral neuropathy, cataracts, and erectile dysfunction, and the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for diabetes mellitus is denied. Service connection for coronary heart disease is denied. Service connection for hypertension is denied. Service connection for peripheral neuropathy is denied. Service connection for impotence is denied. Service connection for cataracts is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs