Citation Nr: 1612377 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 02-08 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for an acquired psychiatric condition. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for sleep problems, to include as secondary to service-connected tinnitus. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from March 1972 to November 1974. This appeal comes to the Board of Veterans' Appeals (Board) from December 2011 and October 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran was scheduled for a Travel Board hearing in September 2015 but did not appear for the hearing and has not offered good cause for his failure to appear or requested a new hearing. The issues of service connection for an acquired psychiatric condition, sleep problems, and sleep apnea being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not have service in Vietnam and was not exposed to herbicide in Thailand. 2. Diabetes mellitus did not begin in service and is not etiologically related to service. 3. Heart conditions did not begin in service and are not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2015). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2015). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes Mellitus The Veteran contends that he has disabilities, including diabetes mellitus, resulting from herbicide exposure in service. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1) (West 2014). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii) (2015). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). Although the Veteran was in service from March 1972 to November 1974, his service records do not indicate, and he has not claimed any service in Vietnam. Rather, the Veteran has reported and his records show service in Thailand, specifically at Udorn Royal Thai Air Force Base (Udorn Air Base). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. The May 2010 bulletin identifies several bases in Thailand, including Udorn Air Base, where the Veteran's service records indicate he was stationed. C&P has indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. M21-1, Part IV, Subpart ii, 1.H.5.b. The existence of a current disability is not at issue in this case. Post-service VA medical treatment records show that the Veteran has been diagnosed with diabetes. Rather, the issue is whether the Veteran was exposed to herbicides in service such that presumptive service connection is warranted. In June 2011 the VA requested pages from the Veteran's personnel file showing unit of assignment and dates of assignment. Records show the Veteran's military occupational specialty was air frame specialist. In his January 2012 notice of disagreement the Veteran stated that as part of his duties he drove a truck on the flight line back and forth to the shops and the planes and also spent time with the security police checking the perimeter of the base and checking the bomb dump. At his July 2012 DRO hearing the Veteran testified that he did sheet metal work when stationed in Thailand, including on planes, which could have included aircraft that sprayed Agent Orange in Vietnam. He stated that he would also occasionally drive a jeep out to the bomb dump where there was no vegetation around the perimeter. He did not otherwise testify to performing any security detail around the perimeter. He also reported that the vegetation near where he lived off-base was sprayed with defoliant and that he crossed the perimeter of the base to enter and leave the base daily. The Board notes that in a November 2013 statement the Veteran's representative argued that the Veteran's lived in the barracks and walked or rode a vehicle from the barracks to the maintenance area multiple times per day along the perimeter road. However, at his July 2012 DRO hearing the Veteran testified that he lived off base and also submitted photographs of his off-base housing. The Board finds the Veteran's statements as to his living situation the most credible and thus the description given by his representative to not be accurate. The Board has considered all of the Veteran's statements, particularly all of his allegations of potential exposure to herbicide. While the Veteran's December 1974 performance report while at Udorn Air Base does reflect he inspected and repaired aircraft, there is no indication in that report or any other records that the Veteran was exposed to herbicides on those airplanes. The Veteran himself has testified only that he could have worked on airplanes that had dropped Agent Orange in Vietnam if those airplanes had come to Udorn Air Base and needed sheet metal work. Therefore, the Board finds that a preponderance of the evidence does not support exposure to herbicide through the Veteran's work on airplanes. The Board also finds that a preponderance of the evidence is against finding that the Veteran worked as a security policeman or otherwise near the air base perimeter. While the Veteran no doubt crossed the perimeter of the base at a gate to enter and leave the base, so must any personnel stationed at the base to get off base, presumably exiting along a road. Such an activity is not sufficient to concede herbicide exposure. There is no credible evidence supporting that the Veteran otherwise spent any time on the perimeter of the base. Even if there were supporting evidence, the Board finds that the Veteran's activities near the perimeter of the base as he has described them are not sufficient to concede herbicide exposure. Specifically, the Veteran has alleged only that he occasionally drove to the bomb dump near the perimeter of the base. The evidence does not support that the Veteran performed any foot patrols or otherwise regularly was in a defoliated area along the perimeter. The Board also acknowledges that the Veteran reported the area around his off-base housing was defoliated and submitted photographs. However, no evidence has been presented as to whether the defoliation was carried out using an herbicide agent containing dioxin versus a commercial herbicide such that presumptive service connection would apply. The Board notes that in August 2011 a memorandum was completed as to a formal finding on lack of information required to verify Agent Orange exposure. Based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran was exposed to herbicides in service such that presumptive service connection would apply. The Board further finds that the evidence does not otherwise support that the Veteran's diabetes mellitus is related to his service. The condition was diagnosed many years after the Veteran's service and there is no medical opinion evidence of record suggesting a nexus between the condition and the Veteran's service. Therefore, the Board finds that a preponderance of the evidence is against service connection for diabetes mellitus, the benefit of the doubt doctrine does not apply, and the claim must be denied. Ischemic Heart Disease The Veteran contends he is entitled to service connection for ischemic heart disease. Private treatment records reflect that he had a myocardial infarction in September 2002. VA treatment records show he has been diagnosed with coronary artery disease. Ischemic heart disease, including but not limited to, acute, subacute, and old myocardial infarction and atherosclerotic cardiovascular disease including coronary artery disease, is among the conditions subject to presumptive service connection based on herbicide exposure. However, as discussed above, the Board has found that a preponderance of the evidence is against conceding herbicide exposure in service. Therefore, presumptive service connection for ischemic heart disease is not for application. The evidence does not otherwise show that the Veteran's heart conditions are related to his service. Neither his service records nor his separation examination reflect any heart complaints or treatment. There is no medical opinion suggesting a nexus between his current heart conditions, diagnosed well after service, and his service. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for ischemic heart disease, the benefit of the doubt doctrine does not apply, and the claim must be denied. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Notice letters were sent to the Veteran in June and September 2011, prior to the initial adjudications of the issues on appeal. The letters informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, relevant service personnel records, VA treatment records, and private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was not afforded a VA examination, but none is required. The Veteran has claimed that his diabetes mellitus and ischemic heart disease are a result of exposure to herbicide in service. As the conditions would be presumptively service connected if herbicide exposure was shown, there is no medical nexus question at issue. There is further no indication that the conditions may otherwise be associated with the Veteran's service, therefore the duty to assist does not require that the VA provide a medical examination. See 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 (2002). ORDER Service connection for diabetes mellitus is denied. Service connection for ischemic heart disease is denied. REMAND Although the Board regrets the additional delay, a remand of the Veteran's claims for service connection for an acquired psychiatric condition, sleep problems, and sleep apnea is required. The Veteran contends he has an acquired psychiatric condition and sleep problems related to his service and/or his service-connected tinnitus and/or other service-connected disabilities. A June 2011 VA psychiatric evaluation reflects that the Veteran was diagnosed with depression, not otherwise specified, for which he has been prescribed medication. In September 2012 the Veteran was afforded a VA compensation and pension mental health examination. Although the examiner indicated review of the claims file, he stated that the Veteran did not have and had never been diagnosed with a mental disorder. Thus, he did not discuss the Veteran's depression diagnosis. Therefore, the Board finds that the examination is not adequate. Once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the Veteran should be afforded a new VA mental health examination. The examiner should opine as to whether the Veteran has an acquired psychiatric condition, to include depression and/or a sleep condition, that is at least as likely as not due to the Veteran's service or any of his service-connected disabilities, to include tinnitus. As the Veteran has claimed his sleep apnea is secondary to his psychiatric condition, to include drugs prescribed to treat that condition, the Board finds his claim for service connection for sleep apnea is intertwined and must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from August 2015 to present. 2. Arrange for the Veteran to undergo a VA mental health examination. The examiner opine as to whether the Veteran has an acquired psychiatric condition, to include depression and/or a sleep condition. In rendering an opinion the examiner should discuss the Veteran's diagnosis of depression. For each condition diagnosed, the examiner should further opine whether it is at least as likely as not that the condition is related to the Veteran's service or caused or aggravated by any of his service-connected disabilities, to include tinnitus. 3. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs