Citation Nr: 1338613 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-15 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, claimed as due to exposure to herbicides. 2. Entitlement to service connection for diabetic retinopathy, claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for a heart disorder, claimed as secondary to diabetes mellitus. 4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 5. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection for a bilateral foot disorder, claimed as secondary to diabetes mellitus. 7. Entitlement to service connection for skin problems, claimed as secondary to diabetes mellitus. 8. Entitlement to service connection for dental problems, claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for diabetes mellitus claimed as due to exposure to herbicides; and for diabetic retinopathy, a heart disorder, hypertension, erectile dysfunction, a bilateral foot disorder, skin problems, and dental problems, which were all claimed as secondary to diabetes mellitus. In December 2007 and September 2008 the Veteran postponed his requested Travel Board hearing. The Veteran failed to appear for a November 2011 Travel Board hearing for which he was notified in October and November 2011. The Board remanded the claim in February 2012 and December 2012 for further development and consideration. In July 2004 the Veteran claimed entitlement to service connection for type II diabetes mellitus associated with exposure to herbicides as well as nine additional disabilities claimed as secondary to diabetes mellitus. The RO acknowledged each claimed disability in a letter dated in August 2004; however, the April 2005 rating decision did not address the claims regarding neuropathy or peripheral vascular disease. The issues of entitlement to service connection for neuropathy and peripheral vascular disease, claimed as secondary to diabetes mellitus, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The most probative evidence does not confirm that the Veteran served in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied. 2. There is insufficient evidence to show that the Veteran otherwise had exposure to Agent Orange or other herbicide agents during his active military service, including his service in Korea. 3. Diabetes mellitus was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 4. Diabetic retinopathy 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. A heart disorder 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. 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. 7. Erectile dysfunction was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 8. A bilateral foot disorder was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 9. Skin problems were not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and service. 10. Dental problems 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 service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing service connection for diabetic retinopathy are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 3. The criteria for establishing service connection for a heart disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 4. The criteria for establishing service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 5. The criteria for establishing service connection for erectile dysfunction are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 6. The criteria for establishing service connection for a bilateral foot disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 7. The criteria for establishing service connection for skin problems are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). 8. The criteria for establishing service connection for dental problems are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in August 2004, April 2013, and June 2013 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The Veteran responded to the 2013 letters and additional evidence was obtained. The Veteran was advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claims were thereafter readjudicated, most recently in an October 2013 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, VA outpatient treatment records, and private treatment records. The Board notes that a VA examination has not been conducted in this case. However, as the Veteran has not been found to have been exposed to Agent Orange, he does not contend that his disabilities are related to service for reasons other than such exposure, and there is no competent evidence even suggesting a relationship between the claimed disabilities and service on a basis other than his claimed exposure, a VA examination is not warranted. 38 C.F.R. § 3.159(c)(4). In February 2012 and December 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC) for additional development. The actions requested in the prior remands have been undertaken. In this regard, appropriate development was conducted in an attempt to verify his claimed exposure. His entire service personnel records were obtained. In a February 2012 letter, the Veteran was asked to identify the particular bases with HAWK missile batteries that he visited along with the date his visited those bases within a two month time frame. If sufficient information was received, the RO/AMC was to request verification of the Veteran's claimed exposure to herbicides in Korea from the U.S. Army and Joint Services Records Research Center (JSRRC). However, the Veteran did not respond to this request. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, additional post-service treatment records were obtained. 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)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. He was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis 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). 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, cardiovascular disease, hypertension, and arthritis become 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 disease 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). The Veteran contends that he is entitled to service connection for diabetes as a result of Agent Orange exposure during service. He claims his diabetic retinopathy, a heart disorder, hypertension, erectile dysfunction, a bilateral foot disorder, skin problems, and dental problems are secondary to his diabetes. 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 and ischemic heart disease, 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). Recently, 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31, 1971 in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv)). The Veteran presented medical evidence indicating that he was diagnosed with type II diabetes mellitus in February 1993. Subsequent treatment records shows diagnoses and treatment for type II diabetes mellitus and associated conditions. He contends that he was exposed to herbicides in Korea while assigned to Battery A, 6th Battalion, 44th Artillery, which he states was part of the 38th Artillery Brigade. He states that he was first assigned to a Tac Site on top of the DMZ not far from Pyongtaek and believes he was exposed to herbicides there; he adds that he performed guard duty on a mountain, which he believed was within the DMZ. Then, he reports that after three or four months near Pyongtaek, he was transferred to Camp Howard, and his job was to travel at least weekly to air defense missile sites in the DMZ and other areas to retrieve spare parts to repair air defense missiles that were down. He alleges that he walked in the same areas of the 2nd Infantry Division combat units that were listed in an August 2004 VCAA letter from the RO. The Veteran served in Korea from October 1968 to November 1969, a period during which the DoD has determined that herbicides were used along the Korean DMZ. A record of assignments shows that he served with Battery A, 6th Battalion (HAWK), 44th Artillery from October 1968 to December 1968, and his principal duty was unit and organization support specialist. From December 1968 to November 1969 he served with Headquarters Battery, 6th Battalion (HAWK), 44th Artillery, and his principal duty was missile repair parts specialist. The record of assignments does not reflect that he served with a unit or other military entity that DoD has identified as operating in or near the Korean DMZ. See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.p. The RO obtained a map showing the location of the Port of Pyongtaek in relation to the border between South and North Korea; an extract from the Command and General Staff College on the Low-Intensity Conflict in Korea 1966-1968; and Department of Army Pamphlet 600-3-14 Air Defense Artillery, which described that the HAWK is a surface-to-air missile with a maximum range of 25 miles used to engage aircraft at low to medium altitudes. In an April 2007 memorandum to the file, the RO concluded that there was no evidence that the unit to which the Veteran was assigned or any similar type unit was located along the DMZ; that there was no evidence of any HAWK installations along the DMZ, but much evidence that there were none in that area; and that unless the Veteran identified particular bases with HAWK batteries that he visited, there was no point in requesting verification from JSRRC. In a February 2012 letter, the Veteran was asked to identify the particular bases with HAWK missile batteries that he visited along with the date his visited those bases within a two month time frame. If sufficient information was received, the RO/AMC was to request verification of the Veteran's claimed exposure to herbicides in Korea from the JSRRC. However, the Veteran did not respond to this request, and the agency of original jurisdiction did not request additional verification of herbicide exposure from JSRRC. Here, the weight of the evidence is against the claim for service connection for diabetes mellitus with associated diabetic retinopathy, a heart disorder, hypertension, erectile dysfunction, a bilateral foot disorder, skin problems, and dental problems. First, there is no showing of diagnosed diabetes mellitus or diabetic retinopathy, a heart disorder, hypertension, erectile dysfunction, a bilateral foot disorder, skin problems, and dental problems, or symptoms of these conditions during active service, or for many years thereafter. The Board has also considered the Veteran's contention that he was exposed to herbicide agents while serving in Korea. The regulation regarding presumptive exposure to herbicide agents only provides a presumption of exposure for certain units located in particular areas in Korea where herbicides were used. His allegation that he was near the DMZ does not allow for application of the presumption and there is no credibly lay, scientific, or medical evidence to suggest that his location as shown by his service personnel records resulted in exposure to herbicide agents. In this respect, the service personnel records do not include evidence that places the Veteran at locations in Korea where herbicide agents were used. Rather, the Board affords great probative weight to the findings listed above that there is no evidence that the Veteran was ever near the Korean DMZ. Given such, the Board finds that exposure to herbicides may not be presumed, nor is there probative evidence of actual exposure to herbicides. This does not, however, preclude the Veteran from establishing entitlement to service connection for type II diabetes mellitus with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). A letter from R.F.D., M.D., dated in July 2004 stated that "it is possible that this [V]eteran's diabetes could have been caused by his exposure to herbicides, which he encountered while on duty in the Republic of Korea." However, the physician indicated only that it was "possible." Hence, the opinion is speculative. Thus, the opinion is of little probative value. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that 'it is possible' and 'it is within the realm of medical possibility' too speculative to establish medical nexus). Moreover, the examiner's statement is based on the premise of herbicide exposure in Korea, a fact which has not been established. There is no medical evidence that links, or even suggests a link, between diabetes mellitus, diabetic retinopathy, a heart disorder, hypertension, erectile dysfunction, a bilateral foot disorder, skin problems, and dental problems and the Veteran's active service, for a reason other than herbicide exposure. In the absence of any persuasive evidence that the Veteran's current diabetes mellitus, and diabetic retinopathy, heart disorder, hypertension, erectile dysfunction, bilateral foot disorder, skin problems, and dental problems are etiologically related to active service, the Board finds that the preponderance of the evidence is against the claim on either a direct or presumptive basis. 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 claim, 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, type 2, is denied. Service connection for diabetic retinopathy is denied. Service connection for a heart disorder is denied. Service connection for hypertension is denied. Service connection for erectile dysfunction is denied. Service connection for a bilateral foot disorder is denied. Service connection for skin problems is denied. Service connection for dental problems is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs