Citation Nr: 1415325 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 11-03 323 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for a circulatory system condition. 3. Entitlement to service connection for anxiety, emotional problems, and stress. 4. Entitlement to service connection for a kidney condition, to include nephropathy. 5. Entitlement to service connection for a vision condition, to include retinopathy. 6. Entitlement to service connection for bronchial asthma. 7. Entitlement to service connection for a nerves condition. 8. Entitlement to service connection for peripheral vascular disease. 9. Entitlement to service connection for dyslipidemia. 10. Entitlement to service connection for high blood pressure or hypertension. 11. Entitlement to service connection for a skin condition, to include a skin rash. 12. Entitlement to special monthly compensation (SMC) based on either the need for aid and attendance or on being housebound. 13. Entitlement to service connection for erectile dysfunction. 14. Entitlement to service connection for neuropathy of the upper extremities, including fatigue, numbness, and pain paresthesia. 15. Entitlement to service connection for neuropathy of the lower extremities, including fatigue, numbness, and pain paresthesia. 16. Entitlement to service connection for a heart condition. ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Counsel INTRODUCTION The Veteran had active military service from November 1969 to November 1971. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his files on the "Virtual VA" system and the VBMS system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era; and the weight of the evidence is against a finding that it is at least as likely as not that he was exposed to herbicides while on active duty, including while stationed in Germany. 2. The weight of the evidence is also against a finding that it is at least as likely as not that any condition for which service connection is claimed either began during or was otherwise caused by the Veteran's military service. 3. The Veteran is not service connected for any disabilities upon which a grant of SMC might be based. CONCLUSIONS OF LAW 1. The criteria for service connection for the disabilities claimed by the Veteran (diabetes mellitus; a circulatory system condition; anxiety, emotional problems, and stress; a kidney condition/nephropathy; a vision condition, to include retinopathy; bronchial asthma; a nerve condition; peripheral vascular disease; dyslipidemia; high blood pressure/hypertension; a skin rash; erectile dysfunction; neuropathy of the upper and lower extremities; and a heart condition) have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for special monthly compensation have not been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In this case, the Veteran is seeking service connection for a number of disabilities. His main contention is that the disabilities were either the result of herbicide exposure in service, or that they are secondary results of a presumptively service connected disability, namely diabetes mellitus. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be presumed for certain chronic diseases, such as diabetes mellitus or hypertension, which become manifest to a compensable degree within a prescribed period after discharge from service (one year), even though there is no evidence of such disease during the period of service, provided the veteran had active service of 90 days or more. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption 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). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she 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). Diabetes mellitus is among the diseases that are presumptively linked to herbicide exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran's military records do not show, nor has he ever alleged, that he ever served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The Veteran also specifically denied having ever served in Vietnam in his formal application for disability benefits. Service records show that the Veteran was stationed in Germany from April 1970 to November 1971 with the 281st Signal Battalion. As such, there is no suggestion that the Veteran is entitled to the presumption of herbicide exposure. Nevertheless, herbicide exposure may be shown on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran believes that he was exposed to herbicides, such as Agent Orange, while stationed in Germany. In August 2009, he wrote that he was exposed to Agent Orange while in Germany and that he had several disabilities related to such exposure. However, he has not meaningfully described how he was actually exposed (beyond a second hand recitation of the Veteran's contentions by Dr. Ortiz), such that any meaningful research could be conducted into his allegations. In November 2009, the RO sent him a letter soliciting details as to how he was exposed to Agent Orange, but he did not reply. Regardless, in November 2009, the RO researched the Veteran's allegation of herbicide exposure, but the response was that there were no records showing herbicide exposure. In connection with this claim, the Veteran submitted a letter from Dr. Ortiz, who wrote that the Veteran had a history of high blood pressure, diabetes mellitus, erectile dysfunction, dyslipidemia, BA, and skin problems. She stated that his conditions such as fluctuating visual acuity, erectile dysfunction, and high blood pressure were conditions that were secondary to diabetes mellitus, as it was known that diabetes mellitus causes damage to the heart, kidneys, nerves, eyes and circulatory system, including high blood pressure, nephropathy, retinopathy, neuropathy, and peripheral vascular disease. She also noted that the Veteran presented with a diffuse skin rash that changed location every time he experienced an eruption, but that a diagnosis had not been well-established. She wrote that the Veteran had told her that while stationed in Germany his duty was to drive a truck that carried all the waste from areas in which Agent Orange was used, and he stated that he was in direct contact with these materials. The Board has reviewed the Veteran's contentions, and acknowledges that lay statements, such as the Veteran's, are considered competent to report what can be perceived or observed through the use of one's senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident. Here, the Veteran's contention is that he transported materials or waste that had been in areas where Agent Orange had been used. However, he has never identified what areas he is referring to or how he knew that Agent Orange had been used there, despite being specifically asked to provide details of his herbicide exposure by a November 2009 letter from VA. The Board finds that the Veteran lacks the expertise to actually know what chemicals were contained in the waste he was transporting. The Board has also reviewed the Veteran's service personnel records, but there is no indication that the Veteran participated in or was otherwise involved in testing or handling any kind of herbicide, such as Agent Orange. As such, no credible evidence has been obtained to support a finding that the Veteran was exposed to Agent Orange in any capacity during his service. Therefore, no presumption based on such exposure is available. As noted, the principal piece of evidence that the Veteran submitted was the letter from Dr. Ortiz, but her opinion is entirely based on the Veteran's report of herbicide exposure, which is not established; and, a medical conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Moreover, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, Dr. Ortiz's letter carries no probative value with regard to establishing that the Veteran was actually exposed to herbicides during service, and because the conclusion she reaches as to the etiology of the Veteran's current disabilities is based on an unsubstantiated premise, her opinion lacks probative value and is assigned no weight. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Public Law No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of direct causation. Combee, supra. However, the medical evidence does not link the Veteran's diabetes mellitus, which began many years after his military service, to his military service. It similarly does not link any of the other conditions for which he seeks service connection (a circulatory system condition; anxiety, emotional problems, and stress; a kidney condition/nephropathy; a vision condition, to include retinopathy; bronchial asthma; a nerve condition; peripheral vascular disease; dyslipidemia; high blood pressure/hypertension; a skin rash; erectile dysfunction; neuropathy of the upper and lower extremities; and a heart condition) to his military service. Service treatment records show that at his enlistment physical, the Veteran was noted to have experienced some occasional mild situational nervousness, although he was found to be psychiatrically normal. The Veteran sought treatment on several occasions in service for upper respiratory infections and for a finger injury, but he never sought treatment for any of the conditions for which he now seeks service connection. Likewise, none of the conditions for which he now seeks service connection were diagnosed either in service or for a number of years after service. At his separation physical in November 1971, the Veteran's heart, vascular system, endocrine system, lungs, upper extremities, lower extremities, neurologic, and psychiatric functioning were all found to be normal. The Veteran's skin was noted to be abnormal, but only because of several scars, not because of any rash or diagnosed skin condition. The Veteran's blood pressure was in the normal range of 128/78. Thus, none of the problems the Veteran is currently seeking service connection for were diagnosed in service, and there is no record, nor allegation, of any of them being either treated or diagnosed within a year of separation from service. In April 1972, the Veteran filed a claim with VA, seeking service connection for gastritis, pharyngitis, and condyloma acumination of the penis. However, none of the current issues on appeal were mentioned at that time; and no additional claim was received from the Veteran for more than 30 years thereafter until the current claim on appeal was received in 2009. VA treatment records have been obtained and confirm that the Veteran has been diagnosed with several disabilities, including diabetes mellitus. However, there is no suggestion from any medical professional that any of the conditions are related to the Veteran's military service, except as a result of Agent Orange exposure, which has not been established, and which cannot therefore provide the nexus mechanism. Importantly, service connection requires more than just a current disability. It also requires evidence linking the onset or cause of that disability to the Veteran's military service. The Veteran was seen in October 2000 with complaints of a skin rash that he felt was the result of Agent Orange exposure, but while he was diagnosed with a skin rash, there was no indication that the rash was consistent with herbicide exposure. Moreover, no skin rash was treated in service or shown for decades after service, greatly undermining any suggestion that such a condition was service related. As described, none of the disabilities for which the Veteran currently seeks service connection were reported or treated either in service, or for decades after service. The Veteran has not alleged receiving any medical treatment that is not of record. There is also no suggestion in the claims file that his disabilities are the result of service, except as either caused by herbicide exposure or secondary to a disease that was presumptively caused by herbicide exposure. As such, the criteria for service connection have not been met for any claimed condition, and the Veteran's claim is denied as to all issues of service connection that were claimed. II. Special monthly compensation based on aid and attendance/housebound Generally, claims for special monthly compensation (SMC) are governed by the provisions set forth at 38 U.S.C.A. § 1114, and 38 C.F.R. §§ 3.350 and 3.352. Special monthly compensation is payable to a veteran with specific combinations of service-connected disabilities, who is housebound, or whose service-connected disabilities leave him so helpless as to be in need of regular aid and attendance. In order to establish entitlement to aid and attendance benefits, the evidence must show that as a consequence of service connected disability, there is a factual need for the personal assistance from others. In this case, the Veteran is not service connected for any disabilities. The Board acknowledges the letter from Dr. Ortiz in which she states that the Veteran is unable to do daily tasks due to his "service connected conditions." However, as noted, the Veteran does not have any service connected conditions; and therefore Dr. Ortiz's statement has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, without reaching the question of whether the Veteran needs aid and attendance, he does not meet the criteria for special monthly compensation based on the need for aid and attendance. Therefore, his claim is denied. III. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice was provided by letters in November 2009 and March 2010; and the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). Service treatment records, and VA treatment records have been obtained. Additionally, a private doctor submitted a letter on the Veteran's behalf. The Veteran has not identified any additional private treatment for which records should have been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). Here, the evidence fails to establish that the Veteran was exposed to herbicides during service, which is the Veteran's primary allegation for why service connection is warranted. The record in this case is generally negative for any indication that any claimed disability is related to service except as a result of either herbicide exposure or as secondary to a condition that is claimed as presumptively related to herbicide exposure. As such, the Veteran's statements are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for diabetes mellitus is denied. Service connection for circulatory system condition is denied. Service connection for anxiety, emotional problems, and stress is denied. Service connection for a kidney condition, to include nephropathy, is denied. Service connection for vision condition, to include retinopathy, is denied. Service connection for bronchial asthma is denied. Service connection for a nerve condition is denied. Service connection for peripheral vascular disease is denied. Service connection for dyslipidemia is denied. Service connection for high blood pressure or hypertension is denied. Service connection for skin condition or a skin rash is denied. Special monthly compensation based on aid and attendance/housebound is denied. Service connection for erectile dysfunction is denied. Service connection for neuropathy of the upper extremities, including fatigue, numbness, and pain paresthesia is denied. Service connection for neuropathy of the lower extremities, including fatigue, numbness, and pain paresthesia is denied. Service connection for a heart condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs