Citation Nr: 1343538 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-13 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus also claimed as due to herbicide exposure. 2. Entitlement to service connection for glaucoma claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for a pituitary testicular disorder claimed as secondary to diabetes mellitus. 4. Entitlement to service connection for vertigo to include as secondary to tinnitus and/or left ear hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1973. This appeal to the Board of Veterans' Appeals (Board) comes from a rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans' Affairs (VA). In September 2012, a Board hearing was held at the RO before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic record keeping data bases. The issue of entitlement to service connection for right ear hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Diabetes mellitus was not manifest in-service, it was not compensably disabling within a year of separation from active duty, and it is not otherwise attributable to active service. 2. Glaucoma was not manifest in-service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service connected disability. 3. A pituitary testicular disorder was not manifest in-service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service connected disability. 4. Vertigo was not manifest in-service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred or aggravated in-service, and it may not 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. §§ 3.303, 3.307, 3.309 (2013). 2. Glaucoma was not incurred in or aggravated by service nor was it caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310 (2013). 3. A pituitary testicular disorder was not incurred in or aggravated by service nor was it caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. Vertigo was not incurred in or aggravated by service nor was it caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in May 2006 and October 2007, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the November 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. Moreover, during a September 2012 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(3). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of entitlement to service connection for diabetes mellitus, also claimed as due to herbicide exposure, service connection for glaucoma, claimed as secondary to diabetes mellitus; service connection for a pituitary testicular disorder, claimed as secondary to diabetes mellitus, and service connection for vertigo, claimed as secondary to the service connected tinnitus and/or a left ear hearing loss. The Veteran asserts that his military occupation in nuclear, biological and chemical warfare exposed him to Agent Orange and other herbicides. The Veteran's DD-214 states that this military occupational specialty was the equivalent of an exterminator. He argues that he was exposed to herbicides through his military occupation in which he used back pack sprayers to kill vegetation around radar control units at Marine Corps Air Station Cherry Point. He claims to have used chemicals such as 2, 4 D and those two years around the chemicals caused him to develop diabetes mellitus. He claims his glaucoma and pituitary testicular disorder are secondary to his diabetes mellitus. According to the Veteran, his hearing loss and tinnitus began immediately following an incident when he was kicked in the back of the head while in service at Cherry Point, North Carolina. The appellant states that he had a brief loss of consciousness and a brownish liquid coming out of ear. He recalls going to sick bay following this incident, and he claims experiencing vertigo when he returned to his room with the room spinning and not stopping until he sat up. The Veteran further reported that he was seen by a physician at Camp Lejeune sometime in 1972-73, and was told he had "damage to his cochlea." Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including diabetes mellitus, may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be established for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While section 3.310 was amended effective October 10, 2006, these claims were filed before the amendment, and as such the current version of 38 C.F.R. § 3.310 is not applicable to the claim on appeal. While the evidence of record shows that the Veteran has type II diabetes mellitus the evidence shows that the appellant never served in the Republic of Vietnam as that is defined by statute and regulation. Indeed, the Veteran does not assert, and the evidence is devoid of a showing of service in the Republic of Vietnam. Therefore, service connection for diabetes mellitus is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e). The Board has reviewed all service treatment records, VA medical records of file, VA examinations and private treatment records. The preponderance of the most probative evidence, however, is otherwise against the claims of entitlement to service connection for diabetes mellitus and vertigo. Although the Veteran now asserts that he experienced vertigo in service and that it has continued since then, the separation examination revealed normal findings for the ears and neurologic system. The appellant did not report a history of vertigo at discharge. Compensably disabling diabetes mellitus is also not shown within a year of separation from active duty. When the appellant filed his original claim for compensation in July 1973, which was filed within a year after separation, he did not mention vertigo even though he reported other ear symptomatology at that time. The Board is mindful that he reported dizziness in his July 1976 VA examination. The appellant stated, however, that he once had it but that it went away over time. A review of the record discloses that the Veteran's diabetes mellitus and vertigo first manifested years post service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board is mindful that in September 2012, Dr. P opined that the Veteran's diabetes is at least as likely as not caused by or a result of his exposure to herbicides as well as his exposure to the 2, 4 D mixture. Dr. P also opined that there is a close relationship and association between vertigo and tinnitus. Dr. P. stated that a result of the head injury that the Veteran received while he was in service, causing his high frequency hearing loss and tinnitus, vertigo was most likely caused by or a result of the same injury that resulted in his hearing loss and tinnitus. The Board notes, however, that the October 2013 VA examiner opined that diabetes was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's review of the evidence of record found no association between contaminants and diabetes. It was also noted that there was no evidence of storage of Agent Orange or other herbicides at Cherry Point or Ft. McClelland. The examiner, however, noted that a review of the c-file revealed that the Veteran had the leading risk factor associated with diabetes, that is, obesity. The same examiner also opined that it is less likely than not vertigo is related to service. The examiner stated that service treatment records are silent to vertigo and the appellant's account of suffering a head injury while playing basketball. It was mentioned that the Veteran's statements in July 1973 and in 1976 were silent for any complaints of vertigo. The examiner found that there was insufficient evidence to establish a nexus between service and the appellant's vertigo. In a separate October 2013 VA examination, another VA examiner found that a review of referred literature revealed no evidence to support the Veteran's claim that his vertigo was caused and/or aggravated by his service-connected tinnitus and/or left ear hearing loss. This examiner opined that it was less likely than not (less than 50 percent) that the Veteran's vertigo was caused by and/or aggravated by his service-connected tinnitus and/or left ear hearing loss. In regards to the opinion of Dr. P, the examiner stated that there was no evidence in the service treatment records to show that the Veteran's hearing loss and tinnitus occurred as a result of head injury, as there is no evidence to show the appellant was seen or treated for head injury while in service. Therefore, a relationship between the head injury and vertigo could not be made with certainty. The medical opinions rendered by the VA examiners are persuasive and assigns them greater probative weight than the lay statements of record and the opinion of Dr. P. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). The opinions of the VA examiners were rendered by medical professionals with the expertise to opine on the matters at issue in this case. The examiners addressed the Veteran's contentions and based the opinions on a review of the claims folder and post service manifestations. The opinions are consistent with the historical record and the October 2013 examiners rendered consistent opinions regarding the etiology of the Veteran's vertigo. Regarding Dr. P's opinion on diabetes mellitus, the Board notes that the Veteran's diabetes has been linked to non service related factors such as obesity. It is also noted that the claimed in-service exposure to herbicides is independently corroborated by the record. To the extent that the Veteran's lay statements are being offered to establish herbicide exposure, his pleadings alone do not establish actual exposure. Merely reporting that he sprayed chemicals does not establish exposure. The Veteran's testimony is not competent in this regard, and there is no other evidence in support of the theory that he was exposed to herbicides and/or other harmful chemicals in service. Thus, Dr. P's opinion is based upon an inaccurate history and his opinion lacks probative value. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record). The Veteran is competent to report eye, neurological and ear problems and the circumstances surrounding such, and has presented credible testimony regarding his head injury in service. The Board also acknowledges the statements of his wife regarding his head injury and vertigo. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issues in this case pertain to the etiology of his diabetes mellitus and vertigo matters which fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, the VA medical opinions are far more probative. The Board acknowledges that the Veteran has submitted literature on vertigo and on Agent Orange outside of Vietnam. The information, however, submitted is not specific to the Veteran and the findings were not based on his particular history and circumstances. The Board notes that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Lastly, the Board finds against the claims of entitlement to service connection for glaucoma and pituitary testicular disorder which are claimed as secondary to diabetes mellitus. A review of the record does not indicate, and the Veteran does not allege, that his glaucoma and pituitary testicular disorder are directly related to service. The claims folder does not contain any competent evidence relating the Veteran's glaucoma and pituitary testicular disorder to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records and all VA medical records of file. These records do not include any opinion linking the Veteran's claimed disabilities to service. Therefore, in the absence of any evidence in support thereof, service connection for glaucoma and pituitary testicular disorder must be denied on a direct basis. To the extent that the Veteran argues that his glaucoma and pituitary testicular disorder are secondary to his diabetes mellitus, service connection for diabetes mellitus has been denied. Accordingly, the claims of entitlement to service connection under this theory of entitlement is meritless and must also be denied. In sum, the most probative evidence of record preponderates against finding that the Veteran's claimed disabilities are related to service or a service connected disability. Hence, entitlement to service connection for diabetes mellitus, glaucoma, a pituitary testicular disorder and vertigo is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus also claimed as due to herbicide exposure is denied. Entitlement to service connection for glaucoma claimed as secondary to diabetes mellitus is denied. Entitlement to service connection for a pituitary testicular disorder claimed as secondary to diabetes mellitus is denied. Entitlement to service connection for vertigo to include as secondary to the service connected tinnitus and/or left ear hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs