Citation Nr: 1423402 Decision Date: 05/22/14 Archive Date: 05/29/14 DOCKET NO. 10-04 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed due to herbicide exposure. 2. Entitlement to service connection for a skin disorder (chloracne), claimed due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction to include secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from October 1962 to June 1966. As explained below, this matter arises to the Board of Veterans' Appeals (Board) from a December 2004 rating decision that denied service connection for rosacea and from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied service connection for an erectile dysfunction, chloracne, and for type II diabetes. The record before the Board consists of paper claims files and electronic files. In June 2011, the Board remanded the case for development. Since the Board's remand, the National Archives and Records Administration forwarded copies of the official deck logs for the Veteran's assigned ship, the USS Topeka (CLG-8). These logs document activities and locations of the ship during the relevant period. Because proof that the Veteran's ship was present in the inland waters of Vietnam could be highly relevant to service connection for diabetes, the deck logs are significant evidence. Moreover because these deck logs are "service department records that existed but had not been associated with the claims files when VA first decided the claim," VA must reconsider the original claim. 38 C.F.R. § 3.156(c). The claim for service connection for an erectile dysfunction has been re-characterized to reflect this development. Resolving reasonable doubt in favor of the Veteran, it appears that an October 2009 notice of disagreement contains an informal request to reopen or reconsider a claim for service connection for residuals of a low back injury. This is referred for appropriate action. FINDINGS OF FACT 1. The Veteran did not set foot in Vietnam. 2. The Veteran's ship did not enter an inland waterway of Vietnam. 3. Type II diabetes did not arise until approximately 4 decades after active service. 4. Type II diabetes did not have its onset in active service and is not otherwise the result of a disease or injury or injurious event in active service. 5. Competent medical evidence indicates that chloracne exists currently and first developed during active service. 8. Competent evidence tending to link erectile dysfunction with active service or with a service-connected disability has not been presented. CONCLUSIONS OF LAW 1. Type II diabetes was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.313 (2013). 2. Chloracne was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. Erectile dysfunction was not incurred in active service, nor is it caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.313 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5103, 5103A, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Adequate notice of the above provisions were supplied the Veteran in March 2006 and again in April 2006. Although the Service Treatment Records (STRs) were never located, the claimant was advised that there remains no reasonable possibility that continued searching would locate the STRs. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA examined the claimant in September 2012. When VA provides a medical examination or medical opinion, VA must ensure that the examination report or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical examination report is adequate, as the examiner reviewed the pertinent medical history and considered the claimant's assertions. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). That list includes diabetes mellitus. Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2009). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and chloracne. Id. For presumptive service connection to be granted for diabetes, it must be manifested to a compensable degree of 10 percent or more at any time after service. For presumptive service connection to be granted for chloracne, it must have appeared within in year of the last day the Veteran was exposed to Agent Orange. A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The presumption applies to those who served in the Republic of Vietnam on the ground or on its inland waterways. It does not apply to Veterans who served in deepwater naval vessels off the coast of Vietnam. The United States Court of Appeals for the Federal Circuit has held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). In this case, because type II diabetes arose many years after active military service, the Board concludes that it did not have its onset during active service, nor did it manifest itself within the first year after separation from active service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Specifically, there is no evidence that diabetes mellitus arose within a year of separation from active service. In fact, the medical evidence shows that diabetes arose in 2006, some 4 decades after active service. Thus, the evidence preponderates against presumptive service connection for diabetes mellitus as a chronic disease. 38 C.F.R. §§ 3.307, 3.309(a). In addition, there is no evidence of a direct connection between active service and diabetes mellitus. There is no medical evidence reflecting a link between the Veteran's diabetes and a disease or injury in active service. Although the Veteran asserts such a link, he is not competent to provide such evidence. See 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this regard, he has reported that the ship itself was contaminated with Agent Orange, which he could see as it coated the ship's surfaces. In March 2012, the Veteran reported that he handled goods flown to the ship on which he served by helicopter. He reported that these goods were contaminated with Agent Orange. However, his claim is that of a layman who has not established himself as an expert in the detection of Agent Orange. Accordingly, the Board does not find persuasive his statements in this regard. Thus, the remaining question is whether, during active military service, the Veteran set foot in Vietnam or served in its inland waterways. A DD Form 214 and the Veteran's service personnel records reflect that, after his recruit training, he was assigned to the USS TOPEKA (CLG-8) in January 1963, and he served aboard that ship until his separation from service in June 1966. He received the Armed Forces Expeditionary Medal for that service. In early February 2006, the Veteran requested service connection for diabetes mellitus. A March 2006 VA clinical record notes the recent onset of type II diabetes. In May 2006, the National Personnel Records Center (NPRC) determined that there was no official record of the Veteran's claimed exposure to herbicides. In December 2008, the Veteran claimed that he had been in combat. He requested service connection for diabetes. He submitted evidence that his ship was in combat, firing at the enemy from the Vietnamese coastline while he was assigned to her. In August 2012, the National Archives and Records Administration forwarded copies of the official deck logs for the USS Topeka (CLG-8) for the period from January 28 to February 16, 1966. These reports document the activities and daily location of the ship during that period. The deck logs do not reflect that the Veteran's ship was on an inland waterway. They do reflect that the ship operated within 2 to 3 nautical miles of the shoreline of Vietnam. For instance, a typical deck log, dated February 4, 1966, reflects that at 1115 hours, the ship "commenced fire at various targets ashore." At 1215, it ceased fire. At 1200, its position was 14-46.8 degrees north by 109-03.2 degrees east, which is slightly under 2 nautical miles from shore in an area between Chu Lai and Qui Nhon. A February 16, 1966, deck log notes that at 1718 hours the ship "...commenced steering various courses at various speeds to maintain optimum fire support position about 4,000 yards from shore." A September 2012 VA diabetes mellitus compensation examination report reflects that the examining physician concluded that if the Veteran has been exposed to Agent Orange as claimed, then it is likely that Agent Orange caused diabetes mellitus. The VA physician also offered an opinion addressing the probative value of medical treatises offered into evidence by the Veteran. The physician noted that these medical articles explain the results of studies that tend to link increased cancer rates among Royal Australian Navy personnel who had been exposed to contaminated water in and around Vietnam. The VA physician pointed out that the Veteran's claim was for service connection for diabetes mellitus, not cancer, and therefore the medical articles were not probative of the question at hand. There is no evidence that the Veteran set foot in Vietnam or that his ship was present on an inland waterway of Vietnam, or that he was otherwise exposed to an herbicide agent. In fact, his ship's deck logs reflect that his ship remained on the South China Sea at all times during its tour of duty there. The Veteran has also claimed exposure to Agent Orange via drinking the ship's desalinated water. Concerning this, he has submitted a copy of a Comment by John B. Wells about a study of Australian Navy veterans called Examination of the Potential Exposure of Royal Australian Navy (RAN) Personnel to Polychlorinated Dibenzodioxins and Polychlorinated Dibenzofurans via Drinking Water (Dec. 12, 2002). This is the same study that the Federal Circuit discussed in Haas, noting that in a rulemaking proceeding VA made the following observations with respect to the Australian study: VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War.... Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied.... Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources or, if they did, whether the distillation process was similar to that used by the Australian Navy. 73 Fed.Reg. 20,566, 20,568 (Apr. 16, 2008). The Federal Circuit then noted that "[b]ased on that analysis, [VA] stated that 'we do not intend to revise our long held interpretation of 'service in Vietnam.''" Haas, 525 F.3d 1168, 1194 (Fed. Cir. 2008). Accordingly, the Board finds the evidence submitted regarding the Australian study to be unpersuasive. The final issue for resolution is whether the Veteran's combat claim has an effect on the outcome. He has claimed that his ship was in combat and has offered proof of that. In Falk v. West, 12 Vet. App. 402, 406 (1999), the Court stressed that if the minesweeping boat on which the appellant was serving was engaged in combat, then, the appellant was engaged in combat. Because the Veteran's ship is noted to have been in combat, the Veteran will therefore be considered to be a combat veteran. However, the combat analysis fails beyond that point. According to 38 U.S.C.A. § 1154(b), a three-step analysis for the favorable consideration afforded only to combat veterans is employed. First, it must be determined whether there is satisfactory, lay or other evidence of service incurrence or aggravation of such injury or disease. Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of such service. If these two inquiries are met, the Secretary shall accept the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. If both of these inquiries are satisfied, a factual presumption arises that the alleged injury or disease is service connected. Third, it must be determined whether the Government has met its burden of rebutting the presumption of service connection by "clear and convincing evidence to the contrary." Collette v. Brown, 82 F.3d 389 (1996). Concerning the first step, there has been no assertion that diabetes mellitus arose during combat. The Veteran and the evidence both indicate that diabetes arose in 2006, four decades after active service. Because there is no evidence that diabetes arose in combat, the burden does not shift to the Government to show by clear and unmistakable evidence that diabetes mellitus did not arise during active service. 38 U.S.C.A. § 1154(b); Dambach v. Gober, 223 F.3d 1376, 1381 (Fed. Cir. 2000). After considering all the evidence, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet App; at 54. The claim for service connection for type II diabetes is therefore denied. Finally, the Board notes that the Veteran submitted a statement that his brother who also served on the same ship with him was granted service connection for diabetes based on exposure to herbicides. The Veteran has stated that he has difficulty understanding why his brother was granted service connection whereas his claim has been denied. Concerning this, the Board notes that each case is considered based on its own specific facts including whether it can be determined whether a particular Veteran had duty or visitation in the Republic of Vietnam. In addition, the Board notes, as discussed by the Federal Circuit in Haas, certain provisions of VA's Adjudication Manual, M21-1, have changed over the years. Haas, 525 F.3d at 1188. Although the Board is sympathetic to the Veteran's statements, the Board must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'" See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Service Connection for a Skin Disorder (Claimed as Chloracne) The Veteran's original claim for benefits, received in October 2003, includes a claim of service connection for skin rashes. He reported that rashes began to appear prior to separation, but, confusingly, he then added, "Everything started happening after I got out." During a May 2004 VA general medical compensation examination, the Veteran reported that skin disorders arose during his 30s (approximately 10 years after active service), but he was unsure when hives first arose. The relevant assessments were rosacea and idiopathic urticaria. In November 2004, the Bureau of Naval Personnel reported that the service records for the Veteran were unavailable. In November 2004, the RO made a formal finding of unavailability of service records and notified the Veteran of that fact. In response, the Veteran submitted private medical reports that show treatment for acne scars in 1992. He reported, "I was heavily exposed to Agent Orange when we were on mission in Vietnam." He also reported, "...still have itchy skin since Viet Nam." In December 2004, the RO denied service connection for rosacea. In May 2006, the RO again notified the Veteran that his service records were unavailable and that all effort to find them had been exhausted. The letter notes that the NPRC had determined that the records no longer exist and that further effort to locate them would be futile. In May 2006, the NPRC made a separate determination that there was no official record of the Veteran's claimed exposure to herbicides. In December 2008, the Veteran claimed that he and his ship had been in combat. He requested service connection for chloracne. He submitted evidence that his ship was in combat, firing at the enemy from the Vietnamese coastline while he was assigned to her. In March 2012, the Veteran reported that he handled goods flown to the ship by helicopter. He reported that these goods were contaminated with Agent Orange. A September 2012 VA chloracne compensation examination report reflects that the VA physician reviewed the pertinent medical history, elicited a history of relevant symptoms from the Veteran and then wrote this: "There is no reason to doubt the veteran's story that he developed acne and an unusual oily skin condition near the end of this service, and that he was diagnosed with chloracne, a recognized complication of agent orange exposure, when eventually seen by a private dermatologist in his 40's. The findings today are consistent with chloracne. The physician concluded that it is at least as likely as not that the claimed skin disorder was caused by active service. No medical evidence tending to controvert this favorable opinion has been offered. Although exposure to an herbicide agent, such as Agent Orange, has not been shown, chloracne has nevertheless been diagnosed currently and has been associated with an oily skin condition that reportedly developed during active service. Because the STRs are missing, any remaining doubt is resolved in favor of the Veteran and direct service connection will be granted. As held in Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) ("Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service." See also 38 C.F.R. § 3.303(d). Service Connection for Erectile Dysfunction (Claimed Due to Diabetes) 38 C.F.R. § 3.310 was amended effective October 10, 2006. The amendment places a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Because the claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, as that version favors the Veteran. The Veteran contends that erectile dysfunction was caused or aggravated by diabetes. That argument must fail for two reasons: first, service connection is not in effect for diabetes. Therefore finding a causal connection between the two disorders would not alter the unfavorable outcome of the claim. Second, the Veteran's October 2003 original claim for benefits includes a claim for an erectile dysfunction. He reported a 5-year history of impotence. Because diabetes did not arise until 2006, there is no possibility that diabetes could have caused an erectile dysfunction, although diabetes might have aggravated an erectile dysfunction later. During a May 2004 VA general medical compensation examination, the Veteran reported that erectile dysfunction had existed for the recent 10 to 15 years. The examiner noted that the STRs were not of record. The relevant assessment was erectile dysfunction. In December 2004, the RO denied service connection for nine named disorders, including impotency. In April 2006, the NPRC determined that the Veteran's service records were unavailable. In this case, there is no evidence that an erectile dysfunction arose during active service, nor has the Veteran so claimed, nor is there any other basis on which to consider direct service connection. In October 2003, the Veteran reported a 5-year history of an erectile dysfunction. Thus, the Veteran first noticed an erectile dysfunction in or around 1998, which is eight years prior to the onset of diabetes mellitus. Although the Veteran has claimed that his diabetes mellitus caused an erectile dysfunction, even if the medical evidence could possibly support his contention, diabetes mellitus is not service connected and therefore the claim must fail. Finally, there is no evidence tending to link an erectile dysfunction with a service-connected disability. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet App; at 54. Service connection for erectile dysfunction is therefore denied. ORDER Service connection for type II diabetes is denied. Service connection for chloracne is granted. Service connection for erectile dysfunction is denied. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs