Citation Nr: 1529328	
Decision Date: 07/09/15    Archive Date: 07/16/15

DOCKET NO.  13-21 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

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

2.  Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus.

3.  Entitlement to a disability rating higher than 10 percent for varicose veins, right leg.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel
INTRODUCTION

The Veteran served on active duty in the United States Air Force from July 1966 to July 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

Per the Veteran's request, the RO scheduled him for a hearing before a Veterans Law Judge; however, the Veteran responded that he would not be able to attend the hearing and would not like to reschedule.  He asked that his appeal be forwarded to the Board for appellate consideration. 

The Board considered whether an inferred request for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009).  However, the Veteran has not alleged, and the evidence does not raise the issue that he may be unemployable on account of his service-connected disabilities.  A TDIU request as concerning his service-connected varicose veins has not been inferred.  See Roberson v. Principi, 251 F.3d 1378, 1384 (2001).  See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability).

The issue of entitlement to an increased rating for varicose veins, right leg, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  There is no probative evidence showing that the  Veteran had "service in the Republic of Vietnam," was presumptively exposed to herbicides during service, or actually exposed to herbicides during service.
2.   The Veteran's diabetes mellitus was first demonstrated decades after service and is not etiologically related to any incident in service, to include claimed exposure to herbicides.

3.  The Veteran's hypertension was first demonstrated decades after service and is not etiologically related to any incident in service.

CONCLUSIONS OF LAW

1.  The criteria to establish service connection for diabetes mellitus are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).

2.  The criteria to establish service connection for hypertension are not met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Introductory Matters

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ('38 U.S.C.A.'); regulations published in the Title 38 of the Code of Federal Regulations ('38 C.F.R.') and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to 'Fed. Cir.') and the Court of Appeals for Veterans Claims (as noted by citations to 'Vet. App.').

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

II.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  Id. 

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

A pre-adjudicatory letter was sent to the Veteran in a December 2009 letter which fully satisfied VCAA notice requirements.  It apprised him of the information and evidence necessary to substantiate the claims for service connection, what information and evidence he was to provide, and what information and evidence VA would attempt to obtain on his behalf.  The Veteran was also advised as to how VA determines the disability rating and effective date once service connection is established, all of which satisfied Dingess notice requirements.  

VA also made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service records, post-service VA records, and private treatment records, and statements provided by the Veteran in support of the claims. The Veteran did not identify, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance to Veteran is required to fulfill VA's duty to assist in the development of the claims. 

The Veteran has not been provided with a VA examination or medical opinion for the current type II diabetes mellitus and hypertension claims.  In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) insufficient medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006)

In this case, because the weight of the evidence is against finding any injuries, diseases, or events in service that could serve as a basis for service connection for type II diabetes mellitus and/or hypertension, there is no duty to provide a VA medical examination.  Absent evidence at least suggestive of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating those claims without being speculative.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise is not probative). 

In his written statements, the Veteran asserted that his type II diabetes mellitus is related to herbicide exposure; however, as discussed in more detail below, service connection based on exposure to herbicides is determined by actual or presumed exposure to herbicides, and not a medical opinion.  Further, the Veteran claims service connection for hypertension as secondary to his diabetes mellitus, and to establish service connection on this basis, his diabetes first be medically related to any incident in service, and it is not.  Further, to the extent that the Veteran claims hypertension based on presumed or actual herbicide exposure, his claim fails.  

As the Veteran has made no assertions or submitted any evidence contending that the onset of his type II diabetes mellitus and/or hypertension symptoms or diagnoses was during his service, VA's duty to assist the Veteran in obtaining additional evidence to support a direct nexus has not been triggered.  See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that, where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination).  As no medical opinion would help substantiate the service connection claims for type II diabetes mellitus and hypertension, the Board does not find that any such development is necessary.  See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim").

Accordingly, the Board finds that the Veteran has been provided with proper notice and all relevant facts have been properly and sufficiently developed in this appeal.  No further notice or development is required; therefore, the Board will proceed with review.

III.  Pertinent Laws and Regulations Governing Service Connection Claims 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2014).  Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran in this case is currently diagnosed with type II diabetes mellitus and hypertension, as relevant.  Both type II diabetes mellitus and hypertension (cardiovascular-renal disease)  are considered  a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  The requirements to establish chronic disease in service are a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b). 

In addition, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus and hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

The law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent.   38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2014).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2014).

VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) , including type II diabetes mellitus, shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).

For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii) , "service in the Republic of Vietnam" means that a veteran must have been present within the land borders of Vietnam or have served onboard a vessel while on the inland waterways of Vietnam.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525); see also General Counsel Opinion, VAOPGCPREC 27-97 (July 23, 1997). For the latter, only vessels that carried out operations on "inland waterways" such as the rivers, canals, estuaries and delta areas of Vietnam, or "brown water," are subject to the presumption under 38 C.F.R. § 3.307 and 3.309.  See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, Ch. 2, § C.10.k. VA's Compensation and Pension Service identify such Navy vessels that conducted operations on the inland brown water of Vietnam which are subject to the presumption of exposure to herbicides. 38 C.F.R. § 3.307; see also Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, http://vbaw.vba.va. gov/bl/21/rating/ VENavyShip.htm (updated January 2014) and http://www.public health.va.gov/exposures/agentorange/index.asp; M21-1MR, Part IV, Subpart ii, 1.H.28.h.

While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era.  In this regard, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases.  That allows for presumptive service connection of the diseases associated with herbicide exposure.  VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR").

Notably, the majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis.  However, that applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). 

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  Layno, 6 Vet. App. at 469.  Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.   Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007).  

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

IV.  Analysis

A.  Service Connection Claim for Diabetes Mellitus

VA received his application for compensation benefits in December 2009.  The Veteran maintains that he has diabetes as a result of exposure to herbicides during service in Korea, Thailand, and/or Vietnam.

On his August 2010 notice of disagreement (NOD), he indicated that while attached to the 552nd Airborne Early Warning and Control Wing out of McClellan AFB out of Sacramento, California during the Vietnam War, he flew missions out of Taiwan to Vietnam.  His military occupational specialty (MOS) was an aircraft maintenance specialist.  He also asserted that his squadron received the Gallantry Cross with Palm during the time period he was stationed at Taiwan.  He maintains that this evidence confirms that he had "boots on ground "in Vietnam.

In support of his claim, he also submitted an internet article provided by Wikipedia titled, "552nd Airborne Early Warning and Control Wing."  This article indicates that this squadron maintained detachment in Southeast Asia during Vietnam War from 1965 to 1970.  It also shows that the 552nd Airborne received the Gallantry Cross with Palm.

Also submitted was an internet article provided by Wikipedia titled, "Gallantry Cross."  This article indicates that the Gallantry Cross Medal was awarded to military personnel who have accomplished deeds of valor or heroic conduct while fighting an enemy force.  The Gallantry Cross was also issued as a unit award.

An additional internet article authored by the Air Force Historical Research Agency indicated that the 552nd Airborne Squadron operated extensively in Southeast Asia 1965-1974 as part of the College Eye Task Force.  

The Veteran's primary assertion is that he was exposed to herbicides during service in Vietnam; however, the Board finds that the weight of the evidence demonstrates that he did not have "service in the Republic of Vietnam," was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service to warrant the presumption of service connection.  See 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168; VAOPGCPREC 21-97.  

As in all cases, a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting a veteran's lay assertions. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd per curiam, 78 F.3d 604, 1996 WL 56489 (Fed. Cir. 1996) (table).  It is for the Board to weigh the evidence before it in the first instance.  Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that it is the Board's responsibility to determine the appropriate weight to be given to evidence).

The Board notes that the various Wikipedia articles submitted by the Veteran are helpful in establishing the history of the Veteran's squadron but are general in nature and do not establish the Veteran's presence in Vietnam during his service.  

The Veteran's service personnel records do not show that he served in Vietnam nor do they show any instances where the Veteran flew into Vietnam for refueling or for any other purpose.  Rather, they demonstrate that he was issued Temporary Duty Orders to participate in a special project nicknamed "College Eye," which was headquartered in Taiwan.  He participated in this project in October/November 1968 (for approximately 135 days), June 1969 (for approximately 135 days), and June 1969.  

VA requested confirmation of any Vietnam service, however, in January 2010, the National Personnel Records Center indicated that it was unable to determine whether or not the Veteran served in the Republic of Vietnam.  Moreover, the Board points out that merely flying over Vietnam does not necessarily suffice to establish presence in Vietnam for the purpose of the benefit the appellant seeks.  See generally VAOPGCPREC 07-93 (finding that flying missions over Vietnam does not constitute service in Vietnam for the purpose of 38 C.F.R. § 3.313).

Likewise, the service medals and decorations received by the Veteran do not provide proof that he actually set foot on the Vietnam landmass during service.  The Board recognizes that his service medals and decorations include the Vietnam Service Medal with two Bronze Star and the Vietnam Campaign Medal.  Notably however, the Federal Circuit has held that service in the Republic of Vietnam will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal or any of these medals.  See Haas, 525 F.3d at 1193-1194, 1196. 

Having considered the Veteran's statements, reviewed of all the evidence of record, and in light of the requirement that a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during service in order to establish qualifying service in Vietnam, the Board finds that the Veteran did not have presumptive exposure to an herbicide agent in service.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 

The Veteran alternatively asserts that he was exposed to herbicides during his service in Korea and/or Thailand.

First, the Veteran's service personnel records confirm one day of service in Korea in May 1968.  However, he has not asserted that he visited the demilitarized zone (DMZ) and there is no indication that his squadron was one of the units that the Department of Defense (or VA) has determined to have operated in an area in or near the Korean DMZ.  See M21-1 MR IV.ii.2.C.10.p.  Accordingly, herbicide exposure is not established based on his very brief service in Korea.

With regard to claimed herbicide exposure in Thailand, a Performance Report covering the time period from December 1968 to April 1969 reflects that the Veteran worked in a semi-transient status at Udorn, Thailand while assigned in TDY status as a crew chief to Project College Eye. However, the Veteran has not asserted and the record does not show that he was a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter during the course of his daily work duties.  Accordingly, Agent Orange exposure cannot be conceded on the basis of his semi transient status at Udorn Royal Thai Air Force Base. See M21-1 MR IV.ii.2.C.10.q; see also, e.g., New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea, VA Compensation & Pension Service Bulletin 3 (May 2010). 

Here, the Board finds that the service personnel records outweigh the appellant's statements.  Therefore, the more probative evidence is against the appellant's claim that the Veteran served in Vietnam or was exposed to herbicides.  See Bardwell v. Shinseki, 24 Vet.App. 36, 40 (2010) (concluding that the Board did not err by rejecting appellant's assertion of in-service chemical exposure "on the basis that such exposure is not documented in his personnel records").

In light of the foregoing, the evidence of record does not provide a sufficient evidentiary foundation for finding that the Veteran was exposed to any herbicides during service in Vietnam, Korea, or Thailand.  Without this foundation, service connection for type II diabetes may not be granted as presumptively due to Agent Orange exposure.   See 38 C.F.R. §§ 3.307, 3.309(e).

Moreover, the record does not otherwise provide a basis to award service connection for type II diabetes mellitus.  

The Veteran has not asserted an endocrine system injury or disease in service, and his STRs do not show any complaints, diagnosis, treatment, or symptoms of an injury or disorder related to the endocrine system.  His 1970 separation examination report includes a normal clinical evaluation of the endocrine system.  Thus, the weight of the lay and medical evidence is against finding that the Veteran sustained an injury or disease of the endocrine system in service.

The Board also finds that the preponderance of the evidence is against finding that symptoms of type II diabetes mellitus were "chronic" in service.   As discussed above, his STRs do not include any endocrine complaints, treatment, or symptoms and he had a normal clinical evaluation of the endocrine system.  He has not asserted that symptoms of type II diabetes mellitus began in service.  Accordingly, the Board finds that symptoms of type II diabetes mellitus were not chronic in service.

Similarly, the Board finds that the preponderance of the evidence is against finding that symptoms of type II diabetes mellitus were "continuous" after service separation.  The Veteran has not asserted that type II diabetes mellitus symptoms have been present since service separation in 1970.   His type II diabetes mellitus was first diagnosed many years after service separation.  For these reasons, the Board finds that symptoms of type II diabetes mellitus were not continuous after service separation.

Moreover, the Veteran's type II diabetes mellitus did not manifest to a compensable degree within one year of separation from service.  As discussed above, onset of type II diabetes mellitus was in 2006 (see January 2010 VA treatment record), decades after service separation.

Because the evidence shows no chronic symptoms of type II diabetes mellitus in service, continuous symptoms of type II diabetes mellitus after service separation, or manifestation of type II diabetes mellitus to a compensable degree within one year of service separation, the criteria for service connection for type II diabetes mellitus on a presumptive basis are not met.  38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker, 708 F.3d at 1338-40.  

As to the theory of direct service connection, the Board finds that type II diabetes mellitus is not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which diabetes could be related.  See Bardwell, 24 Vet. App. at 40. The Veteran's post-service treatment records do not include any medical opinions regarding a connection between the current type II diabetes mellitus and service.  Notably, he has not indicated that the type II diabetes mellitus is or may be related to service in any way other than herbicide exposure.

While the Veteran is competent to relate symptoms of diabetes mellitus that he has experienced at any time, he is not competent to opine on whether there is a link between the current diabetes and active service, including to the alleged exposure to herbicides, because such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the endocrine system, knowledge of the various risk factors and causes of diabetes, specific clinical testing for diabetes that indicate onset, and knowledge of the incubation period or ranges of such disorders that the Veteran is not shown to possess.  See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). 

As a final matter, the Board notes that the Veteran submitted a copy of a prior decision issued by the Board in support of his appeal.  In that case, the Board granted service connection for prostate cancer as presumptively related to herbicide exposure during Vietnam service.  The Board's award was granted largely by its determination that the veteran was exposed to herbicides while attached to the same unit as the Veteran's - the 552nd Airborne Early Warning and Control unit- during the Vietnam War Era.  However, the Board notes that this prior Board decision is not binding with respect to the matter currently on appeal.  See 38 C.F.R. § 20.1303 (noting that Board decisions are non-precedential).  Moreover, in that prior decision, the Board's determination that the veteran had Vietnam service was based on various pieces of evidence in addition to the general internet articles regarding the history of the 552nd Airborne Squadron, such as four corroborating buddy statements and a letter from the Air Force Personnel Center confirming the veteran's actual presence on the ground in Vietnam during service.  As such, the Board declines to adopt the reasoning set out in the prior Board decision submitted by the Veteran.

The Board is sympathetic to the Veteran, but it must rely on the competent, credible and probative evidence in making its determination.  For these reasons, the Board finds that the weight of the lay and medical evidence is against finding that type II diabetes mellitus is causally or etiologically related to service.  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; 38 C.F.R. § 3.102.  

B.  Service Connection Claim for Hypertension

The Veteran is currently diagnosed with hypertension which he maintains is secondary to his type II diabetes mellitus.  See August 2010 NOD.

As the Board determined herein that service connection for type II diabetes has not been established, it necessarily follows that service connection for hypertension as secondary to diabetes cannot be granted.  Furthermore, the Board's review of the record also demonstrates that service connection for hypertension on any other basis is not warranted.  

To the extent that the Veteran claims his hypertension is related to herbicide exposure, such claim fails as the weight of the evidence is against presumed or actual in-service herbicide exposure.  Moreover, the Board notes that hypertension is not a disease listed as presumptively related to herbicide exposure.  The Board recognizes that the National Academy of Science (NAS) has placed hypertension in the "Limited or Suggestive Evidence of Association" category.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012).  NAS has defined this category of association to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id.  Thus, the NAS findings suggest that there is some evidence that hypertension may be caused by factors other than "smoking, aging, and genetics."  At any rate, as determined above, service in the Republic of Vietnam has not been demonstrated; therefore the Veteran is not entitled the herbicide presumption.  Likewise, the weight of the evidence does not support actual exposure to herbicides.  

In addition, the Veteran has not asserted a vascular system injury or disease in service, and his STRs do not show any complaints, diagnosis, treatment, or symptoms of an injury or disorder related to the vascular system.  His separation examination report includes a normal clinical evaluation of the vascular system.  Thus, the weight of the lay and medical evidence is against finding that the Veteran sustained an injury or disease of the vascular system in service.

There is also no evidence of chronic hypertensive symptoms in service.  As discussed above, his STRs do not include any vascular complaints, treatment, or symptoms and he had a normal clinical evaluation of the vascular system.  He has not asserted that symptoms of hypertension began in service.  Accordingly, the Board finds that symptoms of hypertension were not chronic in service.

Similarly, the Board finds that the preponderance of the evidence is against finding that symptoms of hypertension were "continuous" after service separation.  The Veteran has not asserted that hypertensive symptoms have been present since service separation in 1970.  His hypertension was first diagnosed in approximately 2003, many decades after service separation.  For these reasons, the Board finds that symptoms of hypertension were not continuous after service separation. Moreover, given the first indication of hypertension many decades after service separation, it did not manifest to a compensable degree within one year of separation from service.  

Lastly, the Board finds that the Veteran's hypertension is not related to an in-service injury or disease because the weight of the evidence demonstrates no in-service injury or disease or even event to which hypertensions could be related.  See Bardwell, 24 Vet. App. at 40.  The Veteran's post-service treatment records do not include any medical opinions regarding a connection between the current hypertension and service.  Notably, he has not indicated that his hypertension is or may be related to service, but rather asserts that it is secondary to his diabetes.
As a layperson, the Veteran, himself, is not competent to relate his cardiovascular disability -hypertension- to another disability or to his military service.  

For these reasons, the Board finds that the weight of the lay and medical evidence is against finding that hypertension is causally or etiologically related to service.  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; 38 C.F.R. § 3.102. 

ORDER

Service connection for type II diabetes mellitus is denied.

Service connection for hypertension is denied.


REMAND

In February 2010, the Veteran underwent a VA compensation examination to assess the varicose veins in his right leg.  He reported persistent edema, skin discoloration, pain at rest, aching, and throbbing upon prolonged walking or standing, relieved by elevation.  On examination however, there was no evidence of edema, stasis pigmentation, eczema, or ulceration in either leg. 

In the March 2010 rating decision on appeal, the RO increased the rating for the Veteran's varicose veins from noncompensable to 10 percent under Diagnostic Code 7120 based largely on the February 2010 VA examination findings.  38 C.F.R. § 4.104, Diagnostic Code 7120.  The Veteran seeks a higher rating.

Under DC 7120, a 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery; a 20 percent rating is warranted for varicose veins manifested by persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema.  A 40 percent rating requires persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration.  A 60 percent rating warrants persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration.  Finally, a 100 percent rating requires massive board-like edema with constant pain at rest.  38 C.F.R. § 4.104, Diagnostic Code 7120.

In his August 2010 NOD, the Veteran indicated that he had persistent edema in his right leg due to his varicose veins.  

He was afforded a VA examination in June 2013 and the examination report reflects that his right leg varicose veins were productive of aching and fatigue upon prolonged walking or standing; symptoms relieved by elevation; incipient stasis pigmentation or eczema; and intermittent edema.  However, the Board observes that the VA examiner noted these manifestations by checking a list of symptoms, none of which included "persistent edema, incompletely relived by elevation of the extremity," which is necessary for a higher rating.  In addition, the examiner stated that the Veteran's varicose veins require him to take frequent breaks from prolonged standing and walking, which raises the question of whether his edema is intermittent or persistent.

Given the seemingly conflicting evidence regarding his edema and the fact that the Veteran's varicose veins are already productive of stasis pigmentation or eczema, the Board finds that an updated examination is necessary to properly analyze the current severity of the disability.

Accordingly, the case is REMANDED for the following action:

1.  After obtaining and associating any identified outstanding evidence, schedule the Veteran for appropriate VA examination to determine the current severity of his service-connected varicose veins of the right leg.  The entire claims file, including a copy of this remand, must be made available to the examiners for review in conjunction with the examination.  All necessary special studies or tests are to be accomplished.

After examining the Veteran and reviewing his claims file, the examiner is asked to respond to the following:

a).  Report all symptomatology associated with, and the current severity of, the Veteran's service-connected varicose veins in the right leg.  

b).  Specifically indicate which of the following manifestations best describe the current severity of the Veteran's disability:  

i.  intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery;

ii.  persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema; 

iii.  persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; or  

iv.  persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and/or massive board-like edema with constant pain at rest.

The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached.
 
2.  Thereafter, readjudicate the issue on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs