Citation Nr: 1547064	
Decision Date: 11/06/15    Archive Date: 11/13/15

DOCKET NO.  14-18 342	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type 2, to include as due to herbicide exposure.

2.  Entitlement to service connection for a pulmonary disability, to include as due to asbestos exposure.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Dupont, Associate Counsel



INTRODUCTION

The Veteran had active military service from March 1974 to March 1977.

These matters come before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.


FINDINGS OF FACT

1.  The Veteran did not have service in Vietnam, Korea, Thailand, or any other area which the Department of Defense lists as a place where herbicides were used or stored.  

2.  There is no competent and credible evidence that the Veteran was exposed to an herbicide while in service.

3.  The earliest post-service clinical evidence of diabetes mellitus type 2 is more than 30 years after separation from service

4.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's diabetes mellitus type 2 is causally related to, or aggravated by, active service.

5.  There is no competent and credible evidence that the Veteran was exposed to asbestos while in service.

6.  The competent and probative evidence is against a finding that the Veteran has a pulmonary disability.  

7.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has a pulmonary disability causally related to, or aggravated by, active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).

2.  The criteria for service connection for a pulmonary disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet.App. 112 (2004); Quartuccio v. Principi, 16 Vet.App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet.App. 473 (2006).  Notice was provided in July 2009 and February 2010.  

The claims file includes service treatment records (STRs), post service clinical records, and the statements of the Veteran and his representative in support of his claims.  The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. 

The claims file includes an April 2010 general medical examination for pension purposes, but not examinations specific to the Veteran's claims.  The Board has considered whether the Veteran should be afforded a VA examination specific to the claims of entitlement to service connection for diabetes and a pulmonary disability, but finds that one is not warranted.  The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the veteran with a medical examination or to obtain a medical opinion occurs 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) insufficient competent evidence on file for the Secretary to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet.App.79, 81 (2006).  

The Veteran has alleged exposure to herbicides in service.  See May 2014 VA Form 9.  The claims file contains a January 2015 VA Formal Finding Memorandum in response to a VA request for herbicide exposure information which reflects that there is no conclusive evidence that the Veteran was exposed to herbicides in service.  In addition, the Veteran's service personnel records and STRs do not reflect service in Vietnam, Korea, Thailand, or any other area which the Department of Defense lists as a place where herbicides were used or stored.  The Board finds that a VA clinical opinion with regard to the issue of entitlement to service connection for diabetes is not warranted because the most probative evidence of record, as discussed in further detail below, does not indicate that the Veteran was exposed to herbicides, or that his diabetes mellitus is causally related to any other incident of service.

The Veteran has also contended he has "pulmonary problems" and that he may have been exposed to asbestos in service.  The evidence does not support a finding of a current pulmonary disability, and there is no competent credible evidence of a pulmonary disability in service.  A review of the Veteran's file does not reflect exposure to asbestos.  Moreover, there is no clinical opinion which indicates that the Veteran's pulmonary condition may be causally related to asbestos exposure or any other incident of service; thus, the Board finds that an examination specific to his pulmonary condition is not warranted. 

In sum, VA examinations are not warranted because there is no competent credible indication in the claims file that the Veteran may have a disability causally related to, or aggravated by, active service.  

Lastly, in October 2014, VA asked the Veteran to provide information relating to his alleged exposure to Agent Orange and asbestos, including when he was exposed, where he was exposed, how he was exposed, and any statements from individuals who know of his alleged exposure.  The Veteran did not reply to that inquiry.  The duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991).  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims.  Essentially, all available evidence that could substantiate the claims has been obtained.

Legal Criteria

Service Connection in General

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In each case where service connection for any disability is being sought, 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 medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a). 

Presumptive service connection - herbicide exposure

VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e) (2015).  A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a).  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.

If a Veteran was exposed to an herbicide agent during active 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:  AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), 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.  38 C.F.R. § 3.309(e).  

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, porphyria cutanea tarda, and early-onset peripheral neuropathy 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).

Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Service-connection for asbestos-related diseases

There are no laws or regulations which specifically address service connection for disability due to asbestos exposure.  However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, and opinions of the Court and General Counsel  provide guidance in adjudicating these claims.

The M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(b).

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(f). 

The M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease.  Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9(e).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.


Service Connection for diabetes mellitus type 2

The Veteran contends that he was exposed to herbicides while working on a tank in America which he believes returned from Vietnam.  The Veteran underwent a VA general medical examination for pension purposes in April 2010.  The Veteran reported the onset of diabetes mellitus in 2009.  The examiner diagnosed the Veteran with insulin dependent diabetes mellitus type 2.  

The Board will first determine whether the Veteran is entitled to service connection under a presumptive basis and then review the claim under a direct incurrence basis.

The Board has considered whether the Veteran is entitled to the presumption that he was exposed to herbicides in service under 38 C.F.R. § 3.307, but finds that the presumption is not applicable.  The competent credible evidence does not reflect that the Veteran had service in an area which the Department of Defense lists as a place where herbicides were used or stored.  Moreover, there is no competent credible evidence of record that the Veteran was exposed to Agent Orange.  The Veteran has not been shown to be competent to state Agent Orange was present on a tank in the United States.  The record contains a January 2015 VA Formal Finding Memorandum which reflects that there is no conclusive evidence that the Veteran was exposed to herbicides in service.  Furthermore, the Veteran did not reply to VA's October 2014 inquiry to supplement his Agent Orange claim with more information.  Thus, it is not presumed or shown that he had exposure to Agent Orange and 38 C.F.R. § 3.309(e) is not applicable.  

The Board has also considered the Veteran's claim under an analysis for "chronic" diseases subject to presumptive service connection under 38 C.F.R. § 3.309(a) and finds that the evidence does not warrant service connection.  The evidence does not support a finding that the Veteran's diabetes manifested to a degree of 10 percent or more disabling within one year after separation from service.  Notably, more than five years after separation from service in a June 1982 report of medical history, the Veteran wrote, "I am in good health."  And a June 1982 report of medical examination reflects a urinalysis was negative for albumin and sugar.  See also April 2010 VA examination report, in which the Veteran reported the onset of diabetes in 2009.  As diabetes did not manifest to a compensable degree during the applicable presumptive period, the Veteran is not entitled to service connection based on the presumptions applicable to chronic diseases.  

Finally, the Board has considered the Court's opinion in Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994)(i.e. service connection can still be established even if not established on a presumptive basis).  

As noted above, an element of a claim for service connection is the existence of a current disability.  The Veteran's current diagnosis of diabetes satisfies this element.    

A second element of a claim for service connection is an in-service incurrence or aggravation of a disease or injury.  The Veteran's STRs are negative for any complaints or, diagnosis of, diabetes.  Notably, the urinalysis conducted upon separation from service in January 1977 was negative for albumin and sugar.  See January 1977 Report of Medical Examination. 

The first clinical evidence of diabetes mellitus is approximately November 2008, more than three decades after separation from service.  See January 20, 2009, clinical record.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

A third and final element to a service connection claim is a nexus, or link, between the claimed in-service disease and the present disability.  The clinical evidence of record does not support a finding that the Veteran's diabetes is causally related to, or aggravated by, active service.  While the Board finds the Veteran competent to state that he felt sick and fatigued, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation pertaining to his diabetes, especially in light of the lapse of time since service, and his body habitus.  See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  (The Board notes that the Veteran, who is 5 feet 6 inches tall, weighed 145 pounds when he separated from service and weighed 180 pounds at the April 2010 VA examination.)

Based on the evidence and reasoning discussed above, the Board finds the Veteran is not entitled to service connection on a presumptive or a direct incurrence basis.

As the preponderance of the evidence is against this claim, for the reasons and bases discussed, the benefit-of-the-doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990).

Service Connection for a pulmonary disability

The Veteran initially filed a claim for "pulmonary problems" in April 2009.  Subsequently, on his VA Form 9 received in May 2014, the Veteran wrote, "...as a result of [diabetes] I have COPD.  I was possibly exposed to some asbestos from Army."  

The Board has reviewed the Veteran's STRs and clinical records.  There is no current clinical diagnosis of a pulmonary disability, nor was there a diagnosis of a pulmonary disability during service.  Other than wearing eyeglasses, the March 1974 report of medical examination reflects normal health at entrance to service, and the Veteran denied any pre-existing disabilities or symptoms in a March 1974 report of medical history.  The Board notes that the Veteran reported on dental questionnaires in 1975 and 1976 that at an unknown time in the past, he was treated for non-active tuberculosis (TB), and acknowledged a spot on his lung that was untreated.  See April 1975 dental patient medical history; see also January 1976 dental disposition form.  Upon separation in January 1977, the Veteran's chest x-ray was within normal limits and his TB tine test was negative.  See January 1977 Report of Medical Examination.  The Veteran wrote, "To the best of my knowledge I am in good health."  Id.  A subsequent physical examination in June 1982 reflects a normal examination and a negative chest x-ray.  See June 1982 report of medical examination.  The Board notes the Veteran reported the onset of pulmonary problems as approximately April 2009.  See April 2009 VA Form 21-526.     

The earliest post-service clinical evidence of complaints relating to the lungs is from January 2009.  Clinical treatment records reflect the Veteran sought treatment for shortness of breath and chest pain in January 2009.  See January 15, 2009, clinical record.  Subsequent EKG and Myoview stress tests were both negative.  See January 16, 2009, clinical record.  The Veteran was diagnosed with atypical chest pain.  Several days later, the Veteran was seen for complaints of epigastric discomfort.  The physician noted a small nodular density midlung, but noted that the symptoms appeared "non-cardiac in nature," and assessed the chest x-ray as "no acute cardiopulmonary process."  See January 20, 2009, clinical record.  The Veteran again reported chest discomfort in April 2009 and described it as the same he felt in January 2009.  See April 2009 clinical record.  The Veteran was referred for a pulmonary review.  A May 2009 clinical record reflects a review of a February 2009 chest CT scan.  The nurse practitioner noted multiple noncalcified pulmonary nodules, the largest measuring five mm, coronary disease, and prior granulomatous disease.  A June 2009 clinical record reflects a follow-up CT scan which was interpreted as a stable exam with several stable nodules.  When the physician explained the results, the Veteran described his recent chest pain as "indigestion" that "scared" him.  Again the Veteran described the pain as similar to the pain he experienced in January 2009.  The physician noted possible gastroesophageal reflux disease (GERD) given the periods without chest pain between January and June 2009.  See June 17, 2009, clinical record.  In July 2009, the Veteran reported to the emergency room with chest pains, heartburn, and dizziness.  The physician assessed the symptoms as heart burn secondary to GERD.  See July 2009 clinical record.  CT scans of the chest in June 2009, April 2011, and May 2013 reflect that the nodules in the chest are stable and no further imaging was recommended.  See September 2013 clinical record.  

Based on the clinical record, the Veteran does not have a current pulmonary disability.  As a service connection claim requires, at a minimum, medical evidence of a current disability, the Veteran's claim for service connection for a pulmonary disability is not warranted in this case.  See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); See also Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).  Although the medical evidence does include findings of nodules, these are not shown to be the cause of any disability.  

The Board acknowledges a May 2009 clinical record in which a nurse assessed pulmonary nodules and prior granulomatous disease.  While the file does not contain any diagnosis of a current pulmonary disability, even if the Board assumes, arguendo, that the Veteran's nodules and/or prior granulomatous disease manifested in a current disability; there is no competent and credible evidence of record that any such disability is causally related to, or aggravated by, active service.  

The Board also notes that while in service, the Veteran disclosed an untreated spot on his lung and noted that at some point in his life, he had been treated for non-active tuberculosis (TB).  See January 1976 dental disposition form; See also April 1975 dental patient medical history.  The Board acknowledges that tuberculosis can lead to tubercles, or nodules, in the lung tissue.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (32nd Ed. 2012).  Although the Veteran has not been clinically diagnosed with a current pulmonary disability, and the Veteran tested negative for TB upon separation from service, the Board will assume, arguendo, that the Veteran's nodules and disclosures pertaining to non-active tuberculosis and a lung spot during service manifested in a current disability; there is no competent and credible evidence of record that any such disability is causally related to, or aggravated by, active service.  

The Veteran has stated that as a result of diabetes he has COPD (chronic obstructive pulmonary disease).  See May 2014 VA Form 9.  Assuming, arguendo, the Veteran was diagnosed with a pulmonary disability; there is no competent clinical evidence in the file which causally relates such a disability to the Veteran's diabetes.  Moreover, as discussed above, the Veteran is not service connected for diabetes.  Thus, a chest disability could not be service connected as secondary to diabetes.

The Veteran has also stated that he may have possibly been exposed to asbestos while in service.  A review of the service records does not establish any in-service exposure to asbestos.  Additionally, in October 2014, the Veteran was asked to provide information relating to his alleged exposure to asbestos, including when he was exposed, where he was exposed, and how he was exposed.  The Veteran did not reply to that inquiry.  

Service records indicate the Veteran was an armor crewman and tank loader while in Europe.  The M21-1 MR, while not dispositive, does not list such a position as involving exposure to asbestos.  While the Board finds the Veteran competent to state that he has intermittent chest pain, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation pertaining to his chest pain, especially in light of the lapse of time since service, his work history as a roofer after service, and his reported history of smoking two packs of cigarettes a day for 30 years.  See Kahana v. Shinseki, 24 Vet.App. at 435; see also April 2009 VA Form 21-526 and January 15, 2009, clinical record.

As the preponderance of the evidence is against this claim, for the reasons and bases discussed, the benefit-of-the-doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990).



ORDER

Entitlement to service connection for diabetes mellitus type 2, to include as due to herbicide exposure, is denied.

Entitlement to service connection for a pulmonary disability, to include as due to asbestos exposure, is denied. 




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs