Citation Nr: 1543759	
Decision Date: 10/13/15    Archive Date: 10/19/15

DOCKET NO.  14-06 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for hypertension, on the basis of substitution and to include for accrued benefits purposes.

2. Entitlement to service connection for coronary artery disease, to include as due to herbicide exposure, on the basis of substitution and to include for accrued benefits purposes.

3. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, on the basis of substitution and to include for accrued benefits purposes.

4. Entitlement to service connection for kidney disease, to include as secondary to diabetes mellitus, on the basis of substitution and to include for accrued benefits purposes.

5. Entitlement to service connection for a bilateral foot condition, to include as secondary to diabetes mellitus, on the basis of substitution and to include for accrued benefits purposes.

6. Entitlement to service connection for a bilateral eye condition, to include as secondary to diabetes mellitus, on the basis of substitution and to include for accrued benefits purposes.


REPRESENTATION

Appellant represented by:	Daniel Krasnegor, Attorney


ATTORNEY FOR THE BOARD

H. Hoeft


INTRODUCTION

The Veteran had active service from November 1961 to October 1964.  He died in September 2014.  The Appellant is the Veteran's surviving spouse. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The April 2011 rating decision denied service connection for coronary artery disease.  The August 2011 rating decision denied service connection for diabetes, a bilateral eye disability, hypertension, and kidney disease.  The August 2011 rating decision also reopened claims of service connection for a bilateral foot condition and degenerative disc disease of the lumbar spine, and denied the claims on the merits.  Finally, the August 2011 rating decision denied reopening claims for a bilateral knee condition, mental condition, and sleep disorder, as new and material evidence was not submitted. 

In March 2012, the Veteran, through his attorney, filed a notice of disagreement with the April 2011 and August 2011 rating decisions.  Subsequently, in an August 2012 statement the Veteran withdrew his claims for service connection for a lumbar spine disorder, a bilateral knee condition, a psychiatric disorder, and a sleep disorder. 38 C.F.R. § 20.204 (2015).  The withdrawal was subsequently processed at the RO level and reflected in the February 2014 Statement of the Case.

A Board decision in June 2014 reopened the Veteran's claim of entitlement to service connection for a bilateral foot condition, and denied the Veteran's claims for service connection of hypertension, coronary artery disease, diabetes, kidney disease, a bilateral foot condition, and a bilateral eye condition.  The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a March 2015 Order, the Court granted the Clarified Joint Motion for Partial Remand (Joint Motion) to vacate the Board's decision in part, and to remand the case for readjudication in accordance with the Joint Motion. The Joint Motion and Court's Order did not disturb the portion of the Board's June 2014 decision that reopened the Veteran's claim for service connection of a bilateral foot condition. 

Unfortunately, as noted above, the Veteran died in September 2014 during the pendency of this appeal.  The Veterans' Benefits Improvement Act of 2008 (Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008)) allows an eligible person to process to completion any claims pending when a veteran dies on or after October 10, 2008, if such request for substitution is filed not later than one year after the date of the veteran's death. 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015).  In this case, the Veteran's surviving spouse submitted a motion to substitute in October 2014.  Thereafter, in a letter dated November 2014, the RO granted the Appellant's request to be substituted as the Appellant, finding that she is a proper substitute claimant.  In addition, the Court granted the Appellant's motion in December 2014.  Accordingly, the Veteran's surviving spouse is the Appellant and has been properly substituted as the claimant for the purposes of the claim pending on the date of the Veteran's death. See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015).

In June 2015, consistent with the terms of the Joint Motion, the Board remanded this matter obtain and associate with the claims file the "Memorandum for the Record" referenced in VA's Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q) (September 15, 2011), and as set forth at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(r). See June 2015 Remand.  Notably, this action was accomplished in July 2015.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. Hypertension did not manifest during, or as a result of active military service. 

2. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides while serving in Thailand from June 1963 to July 1963.

3. The preponderance of the evidence is against a finding that the Veteran set foot in the Republic of Vietnam during his period of service.

4. Coronary artery disease cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service. 

5. Diabetes mellitus cannot be presumed to be due to exposure to herbicides in service and did not manifest during, or as a result of, active military service.

6. Kidney disease did not manifest during, or as a result of, active military service and there are no service-connected disabilities to form the basis for secondary service connection.

7. A bilateral foot condition did not manifest during, or as a result of, active military service and there are no service-connected disabilities to form the basis for secondary service connection.

8. A bilateral eye condition did not manifest during, or as a result of, active military service and there are no service-connected disabilities to form the basis for secondary service connection. 


CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

2. The criteria for service connection for coronary artery disease are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

3. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

4. The criteria for service connection for a kidney disease are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).
 
5. The criteria for service connection for a bilateral foot condition are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).

6. The criteria for service connection for bilateral eye condition are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board initially notes that the appellant has been substituted as the eligible survivor of the Veteran for any accrued benefits that may become due at the outcome of the appeal.  Unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any pertinent additional evidence. See VBA Fast Letter 10-30 (Aug. 10, 2010).  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. 

An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C.A. 
§ 5121; 38 C.F.R. § 3.1000.

The statute governing accrued benefits was amended in January 2003 to eliminate the prior two-year restriction on the payment of accrued benefits.  The revision to the statute applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003).  Accordingly, the two-year limit on benefits is not applicable in this case.

An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).  In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

Following a veteran's death, 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 2014); 38 C.F.R. § 3.1000(a)(1)(2014). 

The Board notes that in October 2014, the appellant filed her claims for accrued benefits.  Her claims were therefore filed within one year of the date of the Veteran's death. See 38 U.S.C.A. § 5121(c).  

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Direct Service Connection Claims - Hypertension 

The appellant contends that the Veteran's hypertension is related to his period of active military service.  However, the Board finds that the evidence of record does not support a finding of service connection for hypertension. 

The Board acknowledges that the Veteran had a diagnosis of hypertension, as evidenced by an April 1990 private treatment record. 

However, there is no evidence of an in-service event, disease or injury.  The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hypertension.  On a March 27, 1962, periodical report of examination the Veteran's heart and vascular system were noted as normal and the Veteran's blood pressure reading was 120/78.  On the March 27, 1962, report of medical examination, the Veteran denied pain or pressure in chest, palpitation or pounding heart, and high or low blood pressure.  On his August 14, 1964, separation report of medical examination the Veteran's heart and vascular system were noted as normal and his blood pressure reading was 126/74.  On his August 14, 1964, separation report of medical history the Veteran denied pain or pressure in chest, palpitation or pounding heart, and high or low blood pressure.  Furthermore, the Veteran did not assert in-service symptoms or onset of hypertension during the course of this appeal. 

The evidence of record also does not demonstrate a relationship between service and the diagnosed hypertension.  There is no medical opinion of record that relates the Veteran's hypertension to service.  Additionally, the Board has considered the appellant's and Veteran's assertions that his hypertension was related to service.  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 issue in this case, the etiology of hypertension falls outside the realm of common knowledge of a lay person.  In this regard, while the appellant/Veteran can competently report symptoms of hypertension, any opinion regarding the nature and etiology of his hypertension requires medical expertise that neither the Veteran nor appellant has demonstrated. See Jandrea v. Nicholson, 492 F. 3d 1372, 1376 (2007).  As such, the Board assigns no probative weight to the appellant's or Veteran's assertions that his hypertension is related to his active military service. 

Additionally, the Board has properly afforded consideration based on presumptive service connection and continuity of symptomatology for the Veteran's hypertension, as it is one of the enumerated conditions under 38 C.F.R. § 3.309(a) . Walker, 708 F.3d 1331.  However, there is no evidence suggesting, and the Veteran did not contend, that his hypertension arose within one year of discharge from service or that he had continuous symptoms since service that are related to his hypertension.  Instead, post-service private and VA treatment records dated April 1990 to February 2014 show that the Veteran was treated for, and diagnosed with hypertension, by a private physician, in April 1990.  As such, the Board finds that the evidence of record shows that the Veteran neither complained of, nor was diagnosed with hypertension until almost three decades after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). 

As such, the Board finds that service connection for hypertension is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 C.F.R. § 3.102 (2015), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Coronary Artery Disease and Diabetes Due to Herbicide Exposure

The appellant asserts that the Veteran's coronary artery disease and diabetes was a result of herbicide exposure during his active military service.  The Veteran specifically asserted that he was exposed to herbicides during a layover in Tan Son Nhat, Vietnam, from June 2, 1963, to June 4, 1963, en route from Honolulu Hawaii, to Korat, Thailand, with an additional layover in Okinawa.  He also contended that he was detailed at times to go into the storage areas where the herbicide was stored while stationed in Thailand. 

The law provides that if a veteran was exposed to a 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) 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, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e) (2015).

For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 

A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309.  "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. 38 C.F.R. § 3.307.  The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). 

VA has adopted specific procedures to determine whether a veteran was exposed to herbicides in Thailand during the Vietnam Era.  VA's Adjudication Procedure Manual Rewrite, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q) (September 15, 2011), directs, in pertinent part, that if a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded. VA Adjudication Procedure Manual Rewrite, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q) (September 15, 2011). 

If herbicide exposure cannot be conceded based upon the above described facts, a copy of the Compensation Service's "Memorandum for the Record" is to be placed in the veteran's claims file and the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure.  If the veteran fails to furnish the requested information, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist.  The claim may then be decided based on the evidence of record. Id.  

If the veteran furnishes the requested information within 30 days, the information is to be reviewed along with the other evidence of record (including the "Memorandum for the Record") and a determination is to be made whether herbicide exposure can be established.  If such exposure cannot be established and the veteran has not provided sufficient information to permit a search by the JSRRC, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist.  The claim may then be decided based on the evidence of record. Id.  

However, if herbicide exposure cannot otherwise be established and the veteran has provided sufficient information to permit a search by the JSRRC, a request is to be sent to the JSRRC for verification of herbicide exposure. Id.  

The Court has consistently held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding. See Campbell v. Gober, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated, as part of its duty to assist, to comply with the applicable M21-1 provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1).

As an initial matter, the Veteran had been diagnosed with coronary artery disease and diabetes mellitus as evidenced by November 2008 private treatment records.

With respect to the Veteran's Thailand service, the Board notes that the Veteran's personnel records show that he served in Korat, Thailand, from June 4, 1963, to July 11, 1963.  However, the evidence in this case does not demonstrate that the Veteran was an Air Force security policeman, a security patrol dog handler, or a member of the security police squadron; nor does the evidence show that he serve in a capacity that otherwise placed him near the air base perimeter as shown by the evidence of record. See VA Adjudication Procedure Manual Rewrite, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q) (September 15, 2011).  Instead, the Veteran's DD-214 reflects that the Veteran's military occupational specialty was that of an infantryman.  Furthermore, the Veteran did not assert that his duties placed him near the air base perimeter.  

The JSRRC also conducted a search with the information provided by the Veteran and made a formal finding that the Veteran was not exposed to herbicide while in Thailand.  The JSRRC specifically found that "to date, historical information does not document Agent Orange or tactical herbicide spraying, testing, or storage at Korat, Thailand during 1963." See January and March 2014 Memoranda. 

The Board further notes that the Compensation Service's "Memorandum for the Record" shows that there were insecticide missions in Thailand from August 30, 1963, to September 16, 1963.  However, the Veteran was no longer stationed in Thailand at this time. (Note: in compliance with the Court's JMR, the Board remanded this matter to associate the aforementioned Memorandum with the Veteran's claims file; this action was accomplished in July 2015). See Memorandum For the Record. 

As previously noted, the Veteran also asserted that he was detailed to go into the storage areas with the herbicides while stationed in Thailand.  The Board notes that the Veteran is competent to report on possible herbicide exposure. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, the Compensation Service's "Memorandum for the Record" shows that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand.  The Board finds that the Memorandum is more probative than the Veteran's lay assertions to the contrary.  The basis for the Board's findings is that the Compensation Service obtained its information from the Department of Defense (DOD), which has more comprehensive and accurate official records regarding its own use of herbicides and defoliants than do authors and organizations providing conflicting accounts. See, e.g., Soria v. Brown, 118 F.3d 747, 748 (Fed.Cir.1997); Duro v. Derwinski, 2 Vet. App. 530 (1992) (the service department's decisions on matters within its provenance are conclusive and binding on VA).  As noted, in compliance with the Court's JMR, the Board's remand directive, and VA's Adjudication Procedure Manual Rewrite, the aforementioned Memorandum was associated with the Veteran's record/claims file in July 2015. 

The Board also acknowledges the internet article submitted by the Veteran, "Thailand: In the Vaccination Stage."  However, the article is dated May 24, 1963, before the Veteran arrived in Thailand, does not speak to the specific circumstances of this Veteran, and does not provide any evidence that the Veteran was exposed to herbicides in Thailand. 

As such, the Board finds that the evidence of record fails to demonstrate that the Veteran had actual exposure to herbicides while serving in Thailand. 

With respect to the Veteran's assertions that he was in Tan Son Nhut, Vietnam, during a layover from Hawaii to Thailand, the Board notes that the Veteran is competent to report that he went to Vietnam during his military service.  However, the Board does not find the Veteran credible in his assertions for the reasons discussed immediately below.   

In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

As an initial matter, the Veteran's statements concerning the timeframe, nature, and duration of his purported service/presence in Republic of Vietnam have been inconsistently reported throughout the record.  

For example, in December 1997, the Veteran underwent a VA mental health examination in connection with a claim for service connection PTSD; therein, he reported that he "did a 90 day police tour in Vietnam," as well as training exercises in Thailand. (Note: the claim for PTSD was subsequently denied in a July 1998 rating decision based on a finding that the Veteran was not stationed in Vietnam; that he had not received the Vietnam Service Medal; and that personnel records showed that he was stationed in Thailand and Hawaii, only).  In his April 2010 Application for Compensation, the Veteran indicated that he served in Vietnam in 1962.  In a March 2011 statement, he reported that he was in Vietnam during a layover from Hawaii to Thailand in August 1962.  Thereafter, he asserted that he was in Vietnam during a stopover from Hawaii to Thailand in June of 1963.  

Again, in weighing credibility, the Board may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record. Caluza, supra.  In this case, the Veteran has set forth differing accounts as to the duration, nature, and timeframe of his Vietnam service (e.g., 90 days of training in Vietnam; a stopover in Vietnam in August 1962; and a stopover in Vietnam in June 1963).  As the Veteran's accounts of his time spent in Vietnam have been inconsistent, the Board finds he is not credible in this regard and, therefore, does not afford his statements any probative weight. 

As a secondary matter, the Veteran's personnel records do not show the Veteran was ever in Vietnam.  He was not awarded the Republic of Vietnam Campaign Medal or the Vietnam Service Medal, and his service personnel records do not otherwise mention Vietnam or refer to his presence there.  Rather, the personnel records show that the Veteran left Honolulu, Hawaii, on June 2, 1963, and arrived in Korat, Thailand on June 4, 1963.  

Additionally, a JSRRC search of the 1963 unit history submitted by the 1st Battle Group, 5th Infantry (i.e., the Veteran's unit at that time), did not document that his unit stopped, or otherwise landed at Tan Son Nhut, Vietnam, while traveling from Honolulu to Korat, Thailand.  

The Board finds the personnel/unit records and the JSRRC findings to be more probative as to the issue of his Vietnam service (or lack thereof) than the Veteran's (non-credible/non-probative) statements concerning this matter.

The Board acknowledges the assertions of the appellant's representative that four photographs submitted by the Veteran show that he was in Tan Son Nhut, Vietnam. Two of the photographs show three men in the forefront being photographed, with people in the background.  The Board finds that the Veteran is not clearly identifiable in the pictures as the people photographed are in civilian clothing with no identifiable markers.  Additionally, the actual location of the photographs and date the photographs were taken is not clearly evident as there are no landmarks, signs, or other location and date markers.  The Board notes that another picture, although blurry, appears to show mountains and a large "T " on the ground. However, the Board again finds that the location and date of the photograph is not clearly evident.  Finally, the Board notes that the Veteran asserted that the picture of the "Tan Son Nhut Dining Hall #4" is an enlarged picture of a place the Veteran ate a meal in Tan Son Nhut.  While the Veteran did not specifically assert that he took the picture, the Board notes that the picture is readily available to the public on internet search engines.  Again, the Veteran has inconsistently reported the timeframe, duration, and nature of his time spent in Vietnam; as such, the Veteran's statements in this regard have been deemed non-credible and the Board assigns little probative value to the pictures submitted by the Veteran. 

The Board has considered the representative's assertion that it would not take two days to travel from Honolulu, Hawaii to Korat, Thailand.  Again, the Board finds the Veteran's statements concerning his purported "stopover" and/or service in Vietnam lack credibility in light of the multiple inconsistencies described above.  As such, the Board assigns little to no probative value to the assertion that the Veteran had to have stopped in Vietnam since it does not take two days to fly from Hawaii to Thailand. 

Lastly, the Board's acknowledges the appellant's argument that, pursuant to Kahana, any lack of documentation of a short stopover in Vietnam is not evidence that the event did not happen, unless such a stopover is the type of information that would normally be recorded in personnel or unit history records. See Representative's September 2015 Brief.  

Even assuming, arguendo, that stopovers are not the type of information that would normally be recorded in personnel/unit records, the Board still finds that the Veteran's statements concerning any such stopover in Vietnam lack credibility for the reasons discussed immediately above.  Accordingly, the Board assigns little probative value to the assertion that the lack of documentation of a stopover is not evidence that the stopover did not take place. 

The Board again acknowledges the internet article "Thailand: In the Vaccination Stage," submitted by the Veteran and again notes that the article is dated May 24, 1963, does not speak to the specific circumstances of this Veteran, nor provide any evidence that the Veteran was in Vietnam.  As such, the Board assigns no probative value to the internet article in regards to whether the Veteran was in Vietnam at any time during his active military service. 

Finally, the Board acknowledges the Veteran's June 2010 assertion that there were allergic reactions to herbicide exposure and one of his fellow soldiers "Wakefield" was immediately sent to Tripler Hospital in Hawaii for the severity and adverse respiratory reaction due to the herbicide.  While the Veteran is competent to report on such an event, the Board is not certain if the Veteran is asserting this exposure took place in Thailand of in Vietnam.  In either case, the Board does not find the Veteran credible in his assertion as the Board finds that the most probative evidence of record does not show that the Veteran or his unit was exposed to herbicides.

The Board thus finds that the preponderance of the evidence is against a finding that the Veteran was in Vietnam at any time during his active military service.  In so finding, the Board wishes to make clear that it is not relying solely on the absence of documentation of a stopover in personnel/unit records and JSRRC searches to deny the present claims.  Rather, as discussed above, the Veteran's statements concerning his time spent in Vietnam have been deemed non-credible, and the photographs and internet article submitted by the Veteran have otherwise been deemed insufficient to substantiate this aspect of the claim.  Additionally, there is no other evidence, such as statements from other service members, tending to corroborate his contentions.  The absence of such corroboration, coupled with the Veteran's inconsistent and non-credible statements, his personnel records, and the negative responses from the JSRRC, all lead the Board to find against the claims. 

Consequently, entitlement to service connection for coronary artery disease and diabetes mellitus is not warranted based upon the presumption in 38 C.F.R. §§ 3.307 and 3.309(e).

Furthermore, the evidence fails to demonstrate any direct link between the Veteran's military service and his coronary artery disease and diabetes mellitus.  The Veteran's service treatment records are absent of any complaints, treatment, or diagnosis of coronary artery disease and diabetes mellitus.  Post-service evidence shows that the Veteran was not diagnosed with coronary artery disease and diabetes mellitus until 2008 or 2009, over four decades after his discharge from service. See Maxson, supra. 

Finally, the Board has properly afforded consideration based on presumptive service connection and continuity of symptomatology for the Veteran's coronary artery disease and diabetes mellitus, as they are included in the enumerated conditions under 38 C.F.R. § 3.309(a). Walker, supra.  However, the evidence of record does not show that the Veteran had continuous symptoms since service that are related to his coronary artery disease and diabetes mellitus, or that the Veteran's coronary artery disease and diabetes mellitus manifest to a compensable degree within one year after his discharge from service in 1964. 38 C.F.R. §§ 3.304, 3.307(a) and 3.309(a). 

As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply and the claims must be denied. 38 C.F.R. § 3.102 (2015), Gilbert, supra. 

Direct and Secondary Service Connection Claims

Service connection may 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) (en banc).

In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Chronic Kidney Disease

The Veteran did not contend and the evidence does not suggest that his diagnosis of chronic kidney disease, as diagnosed in a November 2008 private treatment record, arose in or, is related to service.  Rather, the Veteran contended that service connection for kidney disease was warranted as secondary to his current diabetes.  In fact, the Veteran submitted a January 2014 private opinion that related the kidney disease to his diabetes.  However, as discussed above, the Board has found that the Veteran is not entitled to service connection for diabetes.  Thus, there is no service-connected disability to form the basis for secondary service connection for kidney disease.  Accordingly, service connection for kidney disease is not warranted on a secondary basis. 

As the preponderance of the evidence is against a finding of service connection for a kidney disease on a direct and secondary basis the benefit-of-the-doubt rule does not apply and the claims must be denied. 38 C.F.R. § 3.102 (2015), Gilbert, supra.

Bilateral Foot and Eye Conditions

The Veteran contended that his bilateral foot condition and bilateral eye condition were related to his active military service.  He also asserted that his bilateral eye condition was related to his military service, to include injuries to his eyes due to dust storms at "Yakama Flats". See June 2010 statement.  Alternatively, it has been asserted that the Veteran's bilateral foot and eye conditions were related to his diabetes. 

First, the Board acknowledges the Veteran's bilateral foot diagnoses, including pes planus, hammertoes, onychomycosis, plantar fasciitis diabetic and neuropathy. See June 2006 private treatment record; April 2010 VA treatment record; see also January 2014 private opinion.  The Board also acknowledges the December 2013 private opinion that related the Veteran's neuropathy to the Veteran's diabetes.  Additionally, the Board acknowledges the Veteran's bilateral eye diagnoses, including mature cataracts, pseudophakia (artificial lens implantation after cataract surgery), mild nonprolifertive diabetic neuropathy, and posterior vitreous detachment. See June 1998 private treatment record; June 2006 private treatment record; see also December 2013 private opinion.  The Board also acknowledges the December 2013 private opinion that concluded the Veteran's cataracts could have been brought on or accelerated by his diabetes and related the Veteran's diabetic retinopathy to the Veteran's diabetes. 

However, as discussed above, the Board has found that the Veteran is not entitled to service connection for diabetes.  Thus, there is no service-connected disability to form the basis for secondary service connection for a bilateral foot condition or a bilateral eye condition.  Accordingly, service connection for a bilateral foot condition and a bilateral eye condition is not warranted on a secondary basis. 

With respect to entitlement to service connection on a direct basis, the Veteran's service treatment records are absent of any complaints, treatment, or diagnoses of a bilateral eye condition.  Service treatment records do show that the Veteran was treated for corns on his toes on December 5, 1962, May 13, 1963, and August 29, 1964.  The Veteran's corns were shaved down and treated with hot soaks and salicylic acid. 

A post-service December 1997 VA examination shows that the Veteran reported that he had jungle rot, and fallen arches in both feet.  In a June 2010 claim the Veteran reported that the open sores on his feet were a result of marching on hot pavement.  A March 2010 VA treatment record shows that the Veteran reported he was profiled for his feet in-service for blisters and jungle rot.  An April 2010 VA treatment record shows that the Veteran reported that he had pes planus for years. 

Although service treatment records are absent of complaints of a bilateral eye condition, the Board finds that the Veteran's reports of being exposed to dust storms while at "Yakama Flats" to be both competent and credible as they are not directly contradicted by the evidence of record.  Additionally, the Board finds that there is evidence of in-service treatment for corns. 

However, there is no competent and credible evidence of record that relates the Veteran's bilateral foot condition or bilateral eye condition to any incident in-service.  In fact, when asked by the Veteran's/appellant's representative if any of the foot conditions currently diagnosed were likely related to the Veteran's in-service problems, the January 2014 private examiner concluded that the Veteran's currently diagnosed foot conditions was not related to in-service problems. 

As such, the only evidence of a relationship between the Veteran's bilateral foot condition and bilateral eye condition and the Veteran's active service are the Veteran's/appellant's own lay assertions.  Again, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. 428, as to the specific issue in this case, the etiologies of a bilateral foot condition and a bilateral eye condition, falls outside the realm of common knowledge of a lay person.  

In this regard, while the Veteran/appellant can competently report symptoms of a bilateral foot condition and a bilateral eye condition, any opinion regarding the nature and etiology of these conditions requires medical expertise that neither the Veteran nor appellant has not demonstrated. See Jandrea, supra.  As such, the Board assigns no probative weight to the assertions that Veteran's bilateral foot condition and bilateral eye condition are related to his active military service. 

Lastly, the Veteran is not entitled to presumptive service connection or service connection based on continuity of symptomatology since his military service because he does not have a current chronic diagnosis, as stated under the laws and regulations.  The Board notes that none of the Veteran's currently diagnosed bilateral foot conditions or bilateral eye conditions are considered a chronic disease under the statute. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2015); see Walker, supra (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).

As the preponderance of the evidence is against a finding of service connection for a bilateral foot condition and a bilateral foot condition on a direct and secondary basis the benefit-of-the-doubt rule does not apply and the claims must be denied. 38 C.F.R. § 3.102 (2015), Gilbert, supra. 

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.   

Neither the appellant nor her representative has 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. VCAA notice has been sent via a letter dated in May 2010, of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  Notice was also provided as to how VA determines disability ratings and effective dates if service connection is awarded. 

VA also has a duty to assist in the development of a claim.  This duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  Here, the Veteran's service treatment records, post-service VA and private treatment records, responses from the U. S. Army and Joint Services Records Research Center (JSRRC), and Social Security Administration (SSA) records have been associated with the claims file. 

The Board notes that the Veteran asserted in September 2009 and May 2011 statements that his service treatment records were incomplete and incorrect as they did not include notations for certain in-service treatment.  When a claimant's treatment records are lost or destroyed, the VA has a "heightened" duty to assist in the development of the claims. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). See also 38 C.F.R. § 3.159(c).  However, the RO requested and obtained copies of the service treatment records covering the Veteran's periods of service and there is no indication from a review of these records that any service treatment records are missing.  

Additionally, the Board notes that the Veteran submitted DD Form 149, Application to Correct Military Records in August 2009, stating that his service treatment records were incorrect, incomplete, and signed by someone else.  In January 2010 the Army Board for Correction of Military Records (ABCMR) replied that the Board was not authorized to change dental or military records of individuals regardless of their status.  The ABCMR explained to the Veteran that his dental and medical records were prepared by an authorized physician and the physician recorded what the evidence revealed.  The ABCMR further explained that in the absence of evidence to the contrary, the ABCMR must presume that what the Army did in the Veteran's case was correct.  As such, the Board finds that a remand to request additionally service treatment records or to request a correction of service treatment records is not necessary as it would cause an undue delay. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). 

The Board also notes that in a June 2010 statement the Veteran reported that "there are records pertaining to sugar levels that were elevated within five months of my separation from the Army."  However, neither the Veteran nor the appellant submitted any additional information in regards to these records.  The Board also notes that the Veteran was provided with VA Forms 21-4142 and submitted and identified other private and VA treatment records in regards to other conditions. The Board emphasizes that the duty to assist is not a one-way street.  If the Veteran/appellant wishes help in developing the claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). The Board thus finds that a remand is not necessary to obtain such records as the Veteran has already been given opportunities to further identify the records.
The Board also notes that the Veteran was not afforded a VA examination to in regards to his claims.  However, a VA examination is not needed in every case.  In McLendon v. Nicholson the Court held that the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon, supra; see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83.

In this case, as will be discussed below, there is no competent and credible evidence that the Veteran's claimed disorders had their onset in service or are otherwise related to his active military service, to include herbicide exposure.  Additionally, as will also be discussed below, there are no service connected disabilities on which to base secondary service connection.  Instead, the evidence of record contains medical opinions submitted by the Veteran that attribute some of the Veteran's claimed conditions to non-service-connected disabilities.  Additionally, the only evidence of record that relates the Veteran's disabilities to service are the Veteran's/appellant's own lay assertions, and as will be discussed further below, neither the Veteran nor appellant has been shown to be competent to provide an opinion on the etiologies of his diagnosed disabilities.  The Board notes that, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Therefore, the Board finds that a VA examination is not necessary to decide the Veteran's claims. 
Lastly, the Board remanded this matter in May 2015 for the purpose of obtaining and associating with the Veteran's claims file the "Memorandum for the Record" referenced in VA's Adjudication Procedure Manual Rewrite, M21 1MR, Part IV Subpart ii, Chapter 2 Section C Paragraph 10(q) (September 15, 2011) and as set forth at M21 1MR, Part IV, Subpart ii, Chapter 2, Section C Paragraph 10(r).  Such action was accomplished in July 2015.  

The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).


ORDER

Entitlement to service connection for hypertension is denied. 

Entitlement to service connection for coronary artery disease is denied. 

Entitlement to service connection for diabetes mellitus is denied. 

Entitlement to service connection for kidney disease is denied. 

Entitlement to service connection for a bilateral foot condition is denied. 

Entitlement to service connection for a bilateral eye condition is denied.

Accrued benefits are not payable.


____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs