Citation Nr: 1434404	
Decision Date: 08/01/14    Archive Date: 08/08/14

DOCKET NO.  10-45 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, to include as a result of in-service exposure to herbicides. 

2.  Entitlement to service connection for coronary artery disease, to include as a result of in-service exposure to herbicides. 

3.  Entitlement to service connection for a respiratory disorder, to include as a result of in-service exposure to herbicides and as secondary to a service-connected disability.  

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

J.R. Bryant


INTRODUCTION

The Veteran served on active military duty from March 1968 to March 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating action issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  The Veteran testified at a videoconference hearing held in March 2011, before the undersigned Veterans Law Judge.  The transcript from that hearing has been reviewed and has been associated with the claims file. 

These issues were before the Board in May 2011 and remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action.  After completing the additional development, the AMC continued to deny the claims (as reflected in a November 2012 supplemental statement of the case), and returned this matter to the Board for further appellate consideration.

The Board has reviewed the Veteran's claims file as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence.


FINDINGS OF FACT

1.  The Veteran's service did not include duty in, or visitation to, Vietnam or in an area where he may otherwise have been exposed to herbicides in service, and he is not entitled to a presumption of herbicide (Agent Orange) exposure, nor is there probative evidence of such exposure. 
2.  The Veteran did not exhibit diabetes mellitus, type II, in service, or to a compensable degree within one year after discharge from service (or, indeed, until many years thereafter), and there is no such evidence linking it to service, to include herbicide exposure while stationed at Fort Gordon, Georgia. 

3.  The Veteran's coronary artery disease, did not have its clinical onset during service, nor did it manifest or to a compensable degree within one year after discharge from service (or, indeed, until many years thereafter), and there is no such evidence linking it to service, to include herbicide exposure while stationed at Fort Gordon, Georgia. 

4.  The Veteran's respiratory disorders, diagnosed as chronic obstructive pulmonary disease (COPD) and lung cancer, did not have their clinical onset during service, nor did a malignant tumor manifest within one year after discharge from service (or, indeed, until many years thereafter), and there is no such evidence linking COPD or lung cancer to service, to include herbicide exposure while stationed at Fort Gordon, Georgia or any service-connected disability.  


CONCLUSIONS OF LAW

1.  Diabetes mellitus, type II, was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

2.  Coronary artery disease was not incurred in or aggravated by active service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

3.  A respiratory disorder was not incurred in or aggravated by active service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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 Veteran has not alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in November 2009 of VA's duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims.  This letter also informed him of how disability ratings and effective dates are assigned.  Dingess, 19 Vet. App. at 484.  Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in March 2010, nothing more is required.  
VA has also satisfied its duty to assist the Veteran in the development of his claims.  In-service treatment records and pertinent post-service records (including records obtained from the Social Security Administration) have been obtained and associated with his claims folders, or are otherwise viewable on the Virtual VA and VBMS electronic file systems.  The Veteran has availed himself of the opportunity to submit relevant documents and argument in support of his claims, including personal statements, representative argument, and has provided testimony at the March 2011 hearing.  Moreover, the Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. 

The Board acknowledges that the Veteran's service personnel records are not available for review as they have not been obtained and associated with the claims file.  In this case, the Veteran has consistently maintained that he served as a company driver while stationed at Fort Gordon between July 1968 and November 1968 and that he transported Colonels and Generals to sites were Agent Orange was being sprayed.  However, there is no specific indication on his DD-214 to corroborate his assertions of military duties as a driver.  Rather, his military occupational specialty (MOS) is listed as a radio relay and carrier attendant (radio operator).  

Further, in March 2010, the National Personnel Records Center (NPRC) was unable to verify the Veteran's exposure to herbicides.  See VA Form 3101.  As addressed more fully below, the Board has also reviewed the Department of Defense (DoD) listing of herbicide tests and storage test sites in the U.S. which indicates that herbicides (Agent Orange and Agent Blue) were tested at Fort Gordon, Georgia between December 1966 and October 1967.  Given that the Veteran's service in 1968 at Fort Gordon is outside the time frame during which Agent Orange exposure would have been used, it does not appear that further efforts to obtain records would be reasonably likely to assist the Veteran in substantiating his claims.  Thus the Board finds that any error in not seeking service personnel records is nonprejudicial and that further efforts to obtain verification of the Veteran's alleged herbicide exposure while stationed at Fort Gordon, would be futile.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In this case the Veteran was not examined for the purpose of addressing his diabetes mellitus, cardiovascular disease, and respiratory claims.  Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 

Diagnoses of diabetes mellitus, coronary artery disease, and lung cancer are firmly established.  Further, as discussed below, the Veteran's claims rest on his assertion that he was exposed to Agent Orange, which would trigger a presumption of service connection.  Indeed, if it were established that the Veteran was exposed to herbicides in service, and that diagnoses of diabetes mellitus, coronary artery disease, and lung cancer were established, a nexus opinion would not be necessary.  So in this case, the Veteran's claims turn largely on the locations of his service (establishing his purported exposure to herbicides), rather than on any medical question.  However, as will be discussed below, there is no objective indication in the service personnel records of any confirmed service in the Republic of Vietnam during the Vietnam Era, that might allow the Board to presume herbicide exposure; nor is there any other confirmed herbicide exposure, such as in Fort Gordon.  A medical opinion to address the presumption of service connection is simply not necessary.  

As for the possibility of direct-service-incurrence, there is no competent and credible indication that his diabetes, heart disease, COPD, or lung cancer are directly attributable to his period of active duty.  There is no competent evidence of in-service incurrence of these disorders in service treatment records, as these records are silent for pertinent complaints, treatment, or diagnoses.  Moreover, the Veteran makes no contention that any claimed disorder had its onset in service, within one year of service discharge, or is related to his active service other than his purported exposure to herbicides.  As such, the Board finds that a VA examination or medical opinion in this case is not required.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding 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; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination).  

Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra.

Law and Analysis

The Veteran is seeking to establish service connection for diabetes mellitus and coronary artery disease on a presumptive basis due to his alleged exposure to herbicides while stationed at Fort Gordon.  He is also seeking service connection for respiratory disorders that he believes were caused, or made worse, by his diabetes mellitus and heart disease.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Certain chronic diseases, such as diabetes mellitus, cardiovascular disease, and cancer are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Diabetes mellitus, cardiovascular disease, and cancer are also qualifying chronic diseases under 38 C.F.R. § 3.309(a).  In addition to lung cancer, the Veteran has also been diagnosed with COPD, which is not a chronic disease listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) does not apply. Walker, supra.

Service connection is 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).

Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides.  See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.  For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f). 

Recent litigation has upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) cert. denied 129 S.Ct. 1002 (2009).  The Board also notes that the DoD has provided information on projects to test, dispose of, or store herbicides in the U.S.  See DoD Herbicides Test and Storage Outside of Vietnam.  However, exposure to herbicides at these locations must be verified as a presumption of exposure has not been established by VA.

The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).  Diabetes mellitus type II, ischemic heart disease (including atherosclerotic cardiovascular disease, such as coronary artery disease), and lung cancer are such diseases.  38 C.F.R. § 3.309(e). 

Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a).  In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). 

After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 

VA and private medical records currently reflect diagnoses of type II diabetes mellitus, coronary artery disease, and lung cancer.  Although these diseases are presumptively associated with herbicide exposure, the Veteran has no demonstrated service in Vietnam, nor does he otherwise claim.  Because the Veteran does not contend, and the evidence does not show, that he served in Vietnam or at any location overseas, he is not entitled to the presumption of herbicide exposure, which accompanies such service.  38 C.F.R. § 3.307.  Therefore, the next question is whether he had exposure to Agent Orange or other herbicides during active service at any location established by the evidence. 

Consideration has been given to the Veteran's statements regarding his alleged exposure to Agent Orange while stationed at Fort Gordon in 1968.  He states that as a company driver he transported Colonels and Generals to swamps where troops were spraying "stuff" (Agent Orange and Agent Blue) that turned everything brown.  See VA Form 21-4138, dated in December 2009; VA Form 9 dated in November 2010; and Board hearing testimony from March 2011.  Unfortunately, the record presents no basis for finding that the Veteran was exposed to tactical herbicide agents in service, as alleged.  His DD-214 lists his military occupational specialty (MOS) as that of a radio relay and carrier attendant (radio operator).  There is no indication from the record that he was ever awarded any MOS other than radio operator, and it is not clear that those duties would typically involve driving or transporting military personnel.  Moreover, in March 2010, the RO received a response from the service department, indicating that it had no records showing the Veteran had been exposed to herbicides.  See VA Form 3101 dated March 12, 2010. 

Notably, a review of the DoD's listing of herbicide use and test sites in the U.S. (see http://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp#Georgia) does show that herbicides were tested at Fort Gordon, Georgia.  Information provided by DoD shows that Fort Gordon was a testing site for herbicides including Agent Orange and Agent Blue from July 15, 1967 and July 17, 1967.  Apparently during the period from December 1966 through October 1967, the United States Department of Agriculture and the University of Hawaii, in coordination with personnel from Fort Derrick's Plant Science Lab, conducted comprehensive short-term evaluations on field tests and formulations by the chemical industry.  In addition, there were two areas in Georgia in 1968 where emphasis was given to soil-applied herbicides (Bromacil, Tandex, Monuron, Diuron, and Fenuron) for grass control, but there is no indication that tactical herbicides, such as Agent Orange, were tested.
While the DoD confirms the use of herbicides at Fort Gordon in July 1967, the Veteran's DD-214 shows that he did not enter active duty until March 1968, almost a year later.  Consequently, he could not have witnessed Agent Orange being sprayed, as his service falls beyond the documented testing dates.  Accordingly, the preponderance of the evidence weighs against the Veteran's exposure to herbicides.  

Consideration has been given to the fact that the claim must still be reviewed to determine if service connection can be established on a direct basis, even if a veteran is found not to be entitled to a regulatory presumption of service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  However, here, as discussed, the Veteran has made no such assertion.  He has clearly stated that his diabetes mellitus, heart disease, COPD, and lung cancer did not have their onset in-service or within a year or service discharge nor are they otherwise related to his active service, except for his alleged exposure to herbicides.  There is also no evidence to support any alternate theory of service connection.

Here, there is no notation in the service treatment records that would suggest the onset of diabetes mellitus, heart disease, COPD, and lung cancer, or any treatment thereof, during service, and there is no lay or medical evidence to the contrary.  In addition, because the post-service evidence of record shows that diabetes mellitus, coronary artery disease, COPD, and lung cancer were not demonstrated until well after one year following his separation from his period active duty, there is no basis to establish service connection under the theories of direct service connection, continuity of symptomatology, or a year presumption.  38 C.F.R. §§ 3.303(a), 3.303(b), 3.303(d), and 3.309(a).  While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  

What remains for consideration is whether or not in the absence of a diagnosis in service and/or continuity of symptoms the Veteran's claimed diabetes mellitus, coronary artery disease, COPD, and lung cancer may nonetheless somehow otherwise be related to his service.  However, there is no medical evidence linking any of these diagnosed disorders to his military service years earlier, and the Veteran has not submitted any medical opinion that relates them to service/events therein.  See Hickson v. West, 12 Vet. App. 247.  Indeed, there is no in-service injury, disease, or event, including the claimed herbicide exposure, to which currently diagnosed diabetes mellitus, coronary artery disease, COPD, and lung cancer could be related to service by medical opinion.

To the extent the Veteran claims service connection for respiratory disorders, diagnosed as COPD and lung cancer, on a secondary basis, the Board notes that he has essentially centered this claim on establishing service connection for diabetes mellitus and heart disease.  However, service connection for these disorders has been denied.  Thus, there is no predicate disability upon which secondary service connection may be granted.  Thus, this argument does not provide a basis for a grant of service connection on a secondary basis.  38 C.F.R. § 3.310.  Consequently, there is no legal basis to grant service connection for COPD and lung cancer.  As there is a lack of entitlement under the law, the application of the law to the facts is dispositive.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law).

In reaching the above conclusions, the Board has not overlooked the Veteran's contentions, his complaints to healthcare providers, or his written statements.  While 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, diabetes mellitus, heart disease, COPD, and lung cancer 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).  These disorders are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that laboratory testing and other specific findings are needed to properly assess and diagnose them.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating endocrine, cardiac, or respiratory disorders.  See King v. Shinseki, 700 F.3d 1339, 134 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

The Board has also considered the Veteran's lay testimony that his alleged in-service herbicide exposure resulted in the development of his claimed disorders since active service.  Although he is competent to state his recollections of his in-service experiences, his assertions of herbicide (Agent Orange) exposure are less credible than the official information obtained from both the service department and the DoD discussed above.  In that regard, the evidence does not corroborate the Veteran's claims of herbicide exposure.  Accordingly, the preponderance of the evidence is against these service connection claims, and there is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for diabetes mellitus, type II, to include as a result of in-service exposure to herbicides, is denied.

Service connection for coronary artery disease, to include as a result of in-service exposure to herbicides, is denied. 

Service connection for a respiratory disorder, to include as a result of in-service exposure to herbicides and as secondary to a service-connected disability, is denied.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs