Citation Nr: 1427438 Decision Date: 06/17/14 Archive Date: 06/26/14 DOCKET NO. 10-26 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, on the basis of substitution and to include for accrued benefits purposes. 2. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, on the basis of substitution and to include for accrued benefits purposes. 3. Entitlement to service connection for a kidney disability, on the basis of substitution and to include for accrued benefits purposes. 4. Entitlement to service connection for retinopathy, on the basis of substitution and to include for accrued benefits purposes. 5. Entitlement to service connection for a skin disability, on the basis of substitution and to include for accrued benefits purposes. 6. Entitlement to service connection for residuals of a stroke, on the basis of substitution and to include for accrued benefits purposes. 7. Entitlement to service connection for amputation, second toe, on the basis of substitution and to include for accrued benefits purposes. 8. Entitlement to service connection for erectile dysfunction, on the basis of substitution and to include for accrued benefits purposes. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which denied the Veteran's claims for service connection for diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction. In July 2010, the Veteran was afforded a hearing before a Decision Review Officer at the RO. The Veteran died in April 2012. During the pendency of his appeal, his widow filed a timely request to be substituted as the appellant in his place. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008); Breedlove v. Shinseki, 24 Vet. App. 7 (2010) (holding that when an appellant dies during the course of an appeal to the U.S. Court of Appeals for Veterans Claims (Court), substitution may be appropriate if the moving party would be eligible to receive accrued benefits based upon the appeal). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served during the Vietnam War, but his service did not include duty in or visitation to the Republic of Vietnam and a presumption of exposure to herbicides (Agent Orange) is not warranted. 2. The Veteran did not have diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, or erectile dysfunction, due to his service. CONCLUSIONS OF LAW 1. Diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction, were not incurred in or aggravated by active service, nor may they be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2013). 2. There are no accrued benefits payable. 38 U.S.C.A. §§ 5102, 5103, 5103A and 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The appellant asserts that service connection is warranted for diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction. It is asserted that the Veteran had diabetes mellitus that should be presumed to be due to exposure to Agent Orange (herbicides) during service, and that all other claimed conditions are secondary to diabetes mellitus. See e.g., Veteran's statement (VA Form 2-4138), received in April 2009. In his claim (VA Form 21-526), received in November 2006, the Veteran asserted that he served in Vietnam between March and April of 1968. In a second VA Form 21-526, received in February 2009, he claimed to have served in Vietnam between March and June of 1968 while aboard the U.S.S. Brooke. In a statement (VA Form 21-4138), dated in March 2009, the Veteran alleged exposure to Agent Orange while aboard the U.S.S. Brooke, in Yankee Station Operations in the Tonkin Gulf with Task Force 77, between May and June 1968. See also VA Form 21-4138, received in January 2010 (same). During his July 2010 hearing, the Veteran asserted that he was aboard the U.S.S. Carpenter when it sailed into the inland waters of Vietnam. He further argued that the U.S.S. Carpenter operated together with ships that included the U.S.S. Sproston, which is among the list of ships that VA recognizes as having "brown water" service during the Vietnam conflict, and that service in the inland waters of Vietnam should therefore be considered to have been established. The Veteran died in April 2012, during the pendency of his appeal, and his widow filed a timely request to be substituted as the appellant in his place. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). In August 2010, the Director of Compensation and Pension Service issued a Fast Letter, which states that claims where (as here) there has been a substitution of parties, the record is not closed on the date of death of the original claimant. Rather, the claim remains open for the submission and development of any pertinent additional evidence. See Fast Letter 10-30. This is in contrast to previously filed accrued benefits claims, in which the record was closed. In addition, VA has published a proposed a new regulation for inclusion in 38 C.F.R. Parts 3, 14 , and 20, to address the issue even further. See 76 Fed. Reg. 8666 -8674 (February 15, 2011). Both the Fast Letter and the proposed regulations indicate that this type of claim differs from an accrued benefits claim, in part, as evidence can be added to the record. Upon the death of a veteran any accrued benefits are payable to a veteran's spouse, children (in equal shares), or dependent parents (in equal shares). 38 U.S.C.A. § 5121(a)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000(a)(1) (2013). Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death based on evidence in the file at death and due and unpaid for a period not to exceed two years prior to the last date of entitlement (the veteran's death). 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.100 (a). Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain specific diseases shall be service connected if manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.A. § 1116(a), (b); 38 C.F.R. § 3.307(a)(6)(ii). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) . Recently, changes have been made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309(e). These changes add ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease, as presumptive disorders. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2013). A veteran, who during active 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 the contrary. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "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 in the Republic of Vietnam. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). In Haas v. Peake, 525 F.3d 1168, 1193, 1197 (2008) the United States Court of Appeals for the Federal Circuit (Federal Circuit) upheld VA's interpretation of this regulation as requiring that a veteran must have actually been present on the landmass or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure. See VAOPGCPREC 27-97 (July 23, 1997); 66 Fed. Reg. 2376, 23,166 (January 22, 2001). Service on a deep-water naval vessel in waters off the shore of Vietnam does not constitute service in the Republic of Vietnam. See Haas, 525 F.3d at 1193 - 1197; VAOPGCPREC 27-97. What constitutes "inland waterways" is not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. The Manual does note an exception regarding veterans who served as a coxswain. Service connection is not currently in effect for any disabilities. It is important for the appellant to understand that a detailed review of the Veteran's records from many years ago has been undertaken (leading, very unfortunately, to a delay in the adjudication of this case, for which the VA apologizes). The Veteran's personnel file has been obtained. It shows, in relevant part, that the Veteran served aboard the U.S.S. Carpenter between May 16, 1965 and April 18, 1968. His rate was RM (radarman). It appears that he served aboard the U.S.S. Brooke from May 10, 1968 to July 12, 1968. The Veteran's discharge (DD Form 214) shows that his awards included the Vietnam Service Medal, and the Vietnam Campaign Medal. His related civilian occupation was listed as radio operator (his specialty number and title merely lists "0000/0000"). The Veteran's service treatment records do not contain any relevant treatment for, or findings pertaining to, diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, or erectile dysfunction. His separation examination report, dated in July 1968, shows that his "eyes-general," ophthalmoscopic examination, pupils, ocular motility, endocrine system, abdomen and viscera, upper extremities, G-U (genitourinary) system, feet, skin, and neurological condition, were clinically evaluated as normal. Urinalysis was negative for sugar. Distant vision was 20/20 bilaterally. He was noted to have defective color vision NCD (not considered disabling). As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2003 and 2009. This evidence shows that the Veteran has all of the claimed conditions. This evidence also shows that the Veteran reported a history of diabetes mellitus beginning as early as 1980. The Board notes that a number of reports indicate that the Veteran had type 1 diabetes, as opposed to type 2. However, many reports indicate that he had type 2 diabetes, and the Board will assume that he had type 2 diabetes mellitus for the limited purpose of this decision. With regard to service in Vietnam, an article submitted by the Veteran, taken from the internet, states that Yankee Station was a point in the Tonkin Gulf off the coast of Vietnam used by the U.S. Navy aircraft carriers of Task Force 77 to launch strikes in the Vietnam War. The article states that it was 100 miles from the coast. In this regard, it is important for the appellant to understand that this evidence, on this point, rather than supporting this claim, actually provides evidence against the claim. The article states that Dixie Station was in the South China Sea off the Mekong Delta, and that it was a single aircraft carrier point for conducting strikes within Vietnam between May 1965 and August 1966. Another article states that Task Force 77 conducted carrier strike operations from the Gulf of Tonkin and South China Sea between 1964 and 1973. Administrative remarks for the U.S.S. Carpenter, dated in June 1966, note "naval gunfire support of forces in South Vietnam, close in patrol and search operations in Vietnamese waters, search and rescue operations in the Gulf of Tonkin." A command history for the U.S.S. Brooke (DEG-1) indicates that it is a guided missile ocean escort, and that it was in Yankee Station in the Tonkin Gulf in May and June of 1968, during which time it acted as plane guard destroyer and performed duties as an AAW (anti-aircraft) picket, and in ASW (anti-submarine warfare). A ship's history for the U.S.S. Carpenter (DD-825), taken from an internet website, indicates the following: the U.S.S. Carpenter was a 390-foot long Gearing-class destroyer. In early March 1966, the ship performed search and rescue operations in the Gulf of Tonkin until late that month. The ship returned to the Gulf of Tonkin in mid-April 1966 for a few days of patrol and screen duties before moving to "the gun line off the coast of Vietnam" on April 21st. She provided gunfire support for ground units over the following week. In late March 1967, the ship returned to Yankee Station off the coast of Vietnam, where it remained until late April. The ship returned to Yankee Station in May and again in June, followed by providing naval artillery support on the gun line in July 1967. Another ship's history for the U.S.S. Carpenter, taken from an internet website, states that since 1965, the ship had deployed five times to the Western Pacific "for duty off Vietnam," during which time the ship performed search and rescue duties, as well as such duties as in-flight refueling of helicopters, plane-guarding, and anti-submarine warfare. In March 1966, the ship was in a search and rescue station in the Gulf of Tonkin, followed by duty in the same area for a few days in mid-April, followed by providing naval artillery support off the coast of Vietnam for about one week. A ship's history for the U.S.S. Sproston (DD-577), taken from an internet website, indicates the following: this ship, along with the U.S.S. Carpenter, departed Pearl Harbor in late December 1965 and headed for the "Vietnam coast." The group arrived at Dixie Station off the coast of South Vietnam, and was there from mid-January to mid-February of 1966 while performing rescue and anti-submarine duties. On February 18, 1966, this ship then went to "Phoc Hui Bay to provide naval gunfire support." On January 19, 1966 (presumably should be February) she rejoined the carrier task group at Yankee Station in the Gulf of Tonkin. For one week in February, the ship was detached to perform trawler surveillance and blocking. Later in February, this ship fired support missions for infantry units off the coast in the II Corps area. Following a trip to Japan, the ship returned to the Yankee Station area from early April to early May of 1966. In about April 1967, the ship returned to the Yankee Station area, where she provided gunfire support until mid-May, followed by duty in the area as "escort and plane guide," and doing trawler surveillance. A report from the JSRRC (U.S. Army and Joint Services Records Research Center), dated in May 2009, shows that there was no evidence to show that Navy ships transported tactical herbicides from the United States to the Republic of Vietnam, or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Therefore, the JSRRC could provide no evidence to support a Veteran's claim of exposure to tactical herbicides while serving aboard a Navy ship during the Vietnam War. A report from the Defense Personnel Records Information Retrieval System (DPRIS), dated in March 2012, shows that they stated that the U.S.S. Carpenter was at Yankee Station in the Gulf of Tonkin between January and February of 1966, during which time it operated in support of aircraft carriers, followed by search and rescue operations, or "Yankee Team Operations," between February and May of 1966. The report states that a search of deck logs showed that the ship entered and departed Vung Tau on April 20, 1966, and anchored at Nha Trang Harbor on April 24, 1966. Deck logs from 1967 show that the ship anchored at the mouth of the Saigon River and located in the Saigon River Channel at various times between July 24-26, 1967. There was a boat transfer at Cam Ranh Bay on July 30, 1967. A statement from the National Personnel Records Center (NPRC), dated in May 2013, shows that the NPRC concluded that they were unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. The report notes that the U.S.S. Carpenter was in "the official waters of the Republic of Vietnam" on several occasions between 1966 and 1967. The Board concludes that the presumption of herbicide exposure based on service in Vietnam does not apply in this case. As an initial matter, the Veteran has not asserted that he ever set foot in Vietnam, rather, he argued that he was aboard a ship that was in the inland waters of Vietnam. His assertions are significantly differing, (first, only claiming exposure in 1968 aboard the U.S.S. Brooke, later only claiming exposure aboard the U.S.S. Carpenter) therefore, his testimony has been afforded reduced probative value. The NPRC has stated that it could not verify service in Vietnam. The evidence the NPRC did obtain only support the denial of this claim, making it less likely than not, less than a 50% chance that these ships docket in Vietnam or were somehow exposed or entitled to the presumption. Notably, neither one of the ships he is shown to have served aboard, the U.S.S. Carpenter and the U.S.S. Brooke, are listed among VA's list of Navy and Coast Guard Ships associated with service in Vietnam and exposure to herbicide agents. See http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (this is a highly detailed list of ships the VA has painstakingly found, based on decades of research from many other Veterans cases, were exposed to herbicides or entitled to the presumption, that have lead to the grants of many claims). The histories for the U.S.S. Carpenter and the U.S.S. Brooke, and the DPRIS report, show that these ships primarily operated in support of fleet operations (Task Force 77) in the Gulf of Tonkin, to include at "Yankee Station," and/or served on the "gun line" firing naval artillery in support of infantry units. As described, these duties do not indicate service in inland waterways. Haas, 525 F.3d at 1193 - 1197; VAOPGCPREC 27-97. To the extent that the DPRIS report notes that the U.S.S. Carpenter was in Vung Tau, Nha Trang, and Cam Ranh Bay, for one day each, the VA Adjudication Procedure Manual M21-1MR specifically states that these facilities are open deep-water harbors. See M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. To the extent that the report notes that the U.S.S. Carpenter "anchored at the mouth of the Saigon River RVN and located in the Saigon River Channel at various times" between July 24-26, 1967, there is nothing in the DPRIS report to show that the ship entered into the Saigon River at that time, or entered any other inland waters, and this notation is insufficient to show service on the inland waterways. Id. The Board has considered the argument that the U.S.S. Carpenter operated closely with the U.S.S. Sproston (which has been shown to have service in the inland waters of Vietnam) and that presumption of exposure to Agent Orange is warranted on this basis. However, the Board finds that the documentation pertaining specifically to the U.S.S. Carpenter is more probative on this issue. Finally, to the extent that the Veteran received the Vietnam Service Medal, this medal was awarded to veterans who served between July 1965 and March 1973 in Vietnam, Thailand, Laos, or Cambodia in direct support of operations in Vietnam. See Department of Defense Manual of Military Decorations & Awards, DoD 1348.33-M, C6.5 at 48 (September 2006). Similarly, the Republic of Vietnam Campaign Medal was awarded to all service personnel who served in South Vietnam or who served outside of the geographical limits of Vietnam and contributed direct support to the forces in Vietnam. Id., at 7-7, September 1996. These awards do not, without more, show qualifying service in Vietnam. Haas. Based on the foregoing, the Board concludes the Veteran is not shown to have set foot in or served in the inland waterways of Vietnam, or to have been exposed to herbicides during service. As the Veteran is not shown to have had qualifying service in the Republic of Vietnam, and he is not shown to have been exposed to Agent Orange, the laws pertaining to veterans who have been exposed to Agent Orange are not applicable, and service connection may not be granted for any of the claimed disabilities on this basis. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); VAOPGCPREC 27-97; VAOPGCPREC 7-93, 59 Fed. Reg. 4752 (1994). Notwithstanding the foregoing, service connection may still be established with proof of actual direct causation. 38 C.F.R. § 3.303. To that end, the Board has considered whether there is a direct link between any of the Veteran's claimed conditions and his active service. However, there is no record of relevant treatment during service, or within one year of separation from service. The post-service medical evidence shows that the earliest medical evidence of any of the claimed disabilities is dated no earlier than 2003. This is about 35 years after his separation from service. There is no competent opinion in support of any of the claims on any basis. Thus, the Board concludes that service connection for diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction, under theories of direct (38 C.F.R. § 3.303), presumptive (38 C.F.R. § 3.309(a)), or nexus (38 C.F.R. § 3.303(d)) is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). With regard to the lay contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issues on appeal are based on the contentions that diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction, were caused by exposure to Agent Orange during service, and/or that they were caused or aggravated by diabetes mellitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, these fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical records have been discussed. The Board has determined that the none of the claimed disabilities are related to his service. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that the claimed disabilities were caused by service, to include as due to a disability "that should be service-connected" i.e., diabetes mellitus. The Board therefore finds that the preponderance of the evidence is against the claims for service connection, and that the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The appellant has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in February and April of 2009, of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements. In May 2013, the appellant was also sent a VCAA letter which fulfilled these requirements. Nothing more was required. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records. In November 2013, the Social Security Administration stated that it did not have any records for the Veteran. In May 2009, the North Atlanta Kidney Specialists, and the Piedmont Hospital, stated that they did not have any records for the Veteran. Although etiological opinions have not been obtained, the Veteran is not shown to have received any relevant treatment during service, and none of the claimed disabilities are shown until many years after service. The Board has determined that exposure to Agent Orange is not shown. There is no competent opinion in support of any of the claims, on any basis. Therefore, etiological opinions need not be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In July 2010, the Veteran was provided an opportunity to set forth his contentions during a hearing before a DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2010 DRO hearing, the DRO identified the issues on appeal. Also, information was solicited regarding the etiology of his disabilities. The testimony did not reflect that there were any outstanding medical records available that would support his claims that has not been obtained, or been found to be unavailable. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for diabetes mellitus, peripheral neuropathy, bilateral upper extremities, a kidney disability, retinopathy, a skin disability, residuals of a stroke, amputation, second toe, and erectile dysfunction, on the basis of substitution and to include for accrued benefits purposes, is denied; accrued benefits are not payable. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs