Citation Nr: 1636677 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 12-14 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for diabetes mellitus, type II. 2. Whether new and material evidence has been received with respect to a claim of service connection for peripheral neuropathy of the lower extremities as secondary to diabetes mellitus. 3. Whether new and material evidence has been received with respect to a claim of service connection for amputation of toes of the bilateral feet as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from February 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening service connection for diabetes mellitus, and peripheral neuropathy and multiple right toe amputations as secondary to diabetes; that decision also denied service connection for multiple left toe amputations. The Veteran timely appealed those issues. The Board has combined the right and left toe amputations into a single new and material evidence claim based on the characterization of that issue in the final November 2005 rating decision, which is discussed further below. FINDINGS OF FACT 1. In an unappealed November 2005 rating decision, the AOJ disallowed service connection for diabetes mellitus, type II, peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus, and loss of toe as secondary to diabetes mellitus. 2. Evidence received since that November 2005 rating decision is either redundant or was previously of record, or does not relate to an unestablished fact necessary to substantiate the claims of entitlement to service connection for diabetes mellitus, type II, or secondary claims of service connection for peripheral neuropathy of the bilateral lower extremities or amputation of toes of bilateral feet; such evidence does not raise a reasonable possibility of substantiating those claims. CONCLUSIONS OF LAW 1. The November 2005 rating decision that denied service connection for diabetes mellitus, type II, peripheral neuropathy of the bilateral lower extremities, and amputations of toes of the bilateral feet is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The criteria for reopening the claim of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for reopening the claim of service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The criteria for reopening the claim of service connection for amputations of toes of the bilateral feet have not been met. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in a letter sent to the Veteran in April 2010. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file as are records associated with his claim for disability benefits from the Social Security Administration (SSA). VA has not provided the Veteran with relevant examinations since he filed his claim to reopen service connection in March 2010, although VA does not have a duty to do so in this case until those claims have been reopened. As the Board finds that reopening in this case is not proper, as discussed further below, VA's duty to provide relevant examinations has not been triggered in this case. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Analysis Following notification of a decision by the RO, the claimant can initiate an appeal by filing a notice of disagreement with the RO. 38 U.S.C.A. § 7105(a) (West 2014). Except in the case of simultaneously contested claim, which these were not, the notice of disagreement shall be filed within one year of the mailing of notice of the initial review or determination. 38 U.S.C.A. § 7105(b) (1) (West 2014). If no notice of disagreement is filed within that year, the RO's determination becomes final and the claim will not thereafter be reopened or allowed, except as otherwise may be provided by regulations not inconsistent with Title 38 of the United States Code. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). Under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 3.156(b), as preventing an unappealed RO decision from becoming final if new and material evidence is received within one year of notice of the decision and is not addressed. Young v. Shinseki, 22 Vet. App. 461, 469 (2009). If an RO decision is appealed to the Board and the Board issues a decision, that Board decision subsumes the underlying decision. 38 C.F.R. § 20.1104 (2015). Unless the Chairman of the Board orders reconsideration of a Board decision, the Board decision is final on the date of mailing stamped on the face of the decision. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. Except as provided by 38 U.S.C.A. § 5108, a claim that has been disallowed by the Board may not thereafter be reopened and allowed and a claim based on the same factual basis may not be allowed. 38 U.S.C.A. § 7104(b). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). Service connection may also be established on a presumptive basis for diabetes mellitus if a veteran was exposed to an herbicide agent such as Agent Orange during service. See 38 C.F.R. §§ 3.307, 3.309(e) (2015). A veteran who, during active military, naval, or air 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. See 38 C.F.R. § 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute "service in the Republic of Vietnam" for the purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In short, in cases in which a vet a veteran asserts exposure to herbicides related to service in Vietnam, presuming exposure requires that such veteran was physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S. Ct. 1002 (2009). In Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims (Court) instructed VA to better define the difference between offshore waters and inland waterways, including particularly bays and harbors. VA now defines inland waterways as fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. Conversely, offshore waters are defined as the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. The following areas have specifically been determined as offshore waters: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay. See VBA Manual M21-1, IV.ii.1.H.2 (Updated February 5, 2016). Historically, the Veteran filed a claim of service connection for diabetes mellitus, type II, and peripheral neuropathy of the bilateral lower extremities and loss of toe, both as secondary to diabetes mellitus. Those claims were denied in a November 2005 rating decision. The Veteran was notified of that decision in a November 2005 letter. The Veteran did not submit any notice of disagreement as to those issues within one year of that notice letter, nor was any new and material evidence respecting those claims received within that one year appeal period. Consequently, as no timely notice of disagreement or new and material evidence was received during the appeal period following the November 2005 notice letter, the November 2005 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2015). Additionally, the Board acknowledges that additional service personnel records were obtained in July 2016. Several of those documents are duplicates of the service personnel records which were previously of record in November 2005. However, insofar as there are newly obtained service personnel records which were obtained in July 2016 which were not previously of record at the time of the November 2005 adjudication of these claims, the Board finds that those documents are not relevant in this case as they do not demonstrate any in-country service in Vietnam, including any temporary duty assignment to Vietnam, or any documented exposure to herbicides during his period of service. In fact, those records confirm the previously established fact that the Veteran spent the entirety of his service aboard the U.S.S. Coral Sea. Therefore, a de novo review of the record based on receipt of new and material service department records is not appropriate in this case. See 38 C.F.R. § 3.156(c). New and material evidence is therefore required to reopen the claims of service connection for diabetes mellitus, type II, and peripheral neuropathy of the bilateral lower extremities and amputation of toes of the bilateral feet, both as secondary to diabetes mellitus. See 38 U.S.C.A. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In the November 2005 rating decision, the AOJ noted that the Veteran's SSA records, which included private treatment records from 1998, demonstrated diagnosis of diabetes mellitus. It was further noted that the Veteran's service records did not document any in-country service in the Republic of Vietnam; that evidence, in fact, demonstrated that the Veteran served aboard the U.S.S. Coral Sea-a midway-class aircraft carrier-in the official waters of the Republic of Vietnam, in the Gulf of Tonkin, during his period of service. The Board also notes that the Veteran asserted in his April 2005 claim that he was exposed to herbicides as a result of "all of the over flights" during his deployment on the U.S.S. Coral Sea in the Gulf of Tonkin. The AOJ ultimately found that the Veteran was not shown to be exposed to Agent Orange or any other tactical herbicides during military service, nor did the evidence demonstrate diagnosis of diabetes mellitus either during service or within one year of discharge therefrom. As to the peripheral neuropathy and loss of toe claims, the AOJ found that the evidence did not show any evidence of neuropathy or loss of toes present at that time, i.e. there was no current disability. It further concluded that as those disorders were not shown in service-and in the case of the neuropathy, it was also not shown within one year of discharge from service-or to otherwise be the result of military service, or shown to be the result of any service-connected disability. Thus, in order to be new and material, the evidence received since November 2005 must document: (1) diagnosis of diabetes mellitus, amputation of toes, or peripheral neuropathy during military service; (2) diagnosis of diabetes mellitus or peripheral neuropathy within one year of discharge from service; (3) in-country service in, including any temporary duty assignment to, the Republic of Vietnam or any inland waterways of that country; or, (4) actual exposure to Agent Orange or other tactical herbicides as a result of his military service. With respect to the diabetes mellitus claim, since November 2005, the Veteran's VA treatment records associated with the claims file show continued treatment and management of his diabetes mellitus. Such evidence is redundant of the evidence previously of record, as such goes toward the already-established fact of a current disability. None of those records document either diagnosis of diabetes mellitus in service or within one year of discharge therefrom, or exposure to herbicides during military service, either due to in-country service in the Republic of Vietnam or documented exposure to herbicides. Several private treatment records from Avera and Trimark have also been associated with the claims file since the November 2005 rating decision. These records are also redundant of an already-established fact, as they note either continued treatment for diabetes or demonstrate diagnosis of the Veteran's diabetes in 1998 with continued treatment since that time. Both of these are facts previously known at the time of the November 2005 rating decision. None of the private records document either diagnosis of diabetes mellitus in service or within one year of discharge therefrom, or exposure to herbicides during military service, either due to in-country service in the Republic of Vietnam or documented exposure to herbicides. Likewise, it appears that additional SSA records which were not previously obtained prior to November 2005 have since been obtained and associated with the record. However, again, none of those records document either diagnosis of diabetes mellitus in service or within one year of discharge therefrom, or exposure to herbicides during military service, either due to in-country service in the Republic of Vietnam or documented exposure. Thus, those records are not material as they do not relate to any unestablished fact in this case. The AOJ also associated two memorandums with the claims file since the November 2005 rating decision. The first was a memorandum regarding the Joint Services Records and Research Center (JSRRC), which indicates that JSRRC had found no evidence indicating that Naval or Coast Guard vessels transported tactical herbicides from the United States to the Republic of Vietnam, or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. JSRRC additionally could not document or verify that a shipboard Veteran was exposed to herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The second memorandum regards herbicide use in Thailand. Insofar as that memorandum discusses actual use of herbicides in Thailand, such is irrelevant in this case as the Veteran is not shown to have Thailand service. However, that memorandum did indicate that the C-123 aircraft that sprayed herbicides in Operation RANCH HAND sprayed herbicides and were stored in the Republic of Vietnam, not in Thailand. Also, that memorandum indicated that there was no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Specifically, that memorandum states: Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. The Board notes that neither of these memorandums establishes any unestablished facts that would raise reasonable possibilities of substantiating the Veteran's claim either on a direct or presumptive basis in this case. As a final matter regarding the Veteran's diabetes claim, he has submitted several statements since the November 2005 rating decision. In his March 2010 claim to reopen his claims, the Veteran again indicated that he was diagnosed with diabetes in June 1998, a fact that was already established prior to the November 2005 rating decision. He further stated that in November 2009 he "became aware of the connection between Agent Orange exposure and Type II Diabetes." The Board notes that the Veteran previously argued and was aware of that association during his previous claim, as is evident by his statements during the prosecution of his previous claim. Also, his June 2011 substantive appeal, VA Form 9, the Veteran stated that he was exposed to Agent Orange while serving on the U.S.S. Coral Sea; this statement is redundant to statements made during the prosecution of his previous claim. He also stated that diabetes does not run in his family and that he thought his diabetes was caused due to exposure to Agent Orange. The Board finds that these statements are not new, as VA previously considered these allegations of herbicide exposure during adjudication in November 2005. Moreover, the Veteran is not competent to provide a medical opinion in this case as he lacks the requisite medical experience and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). As the Veteran's statement respecting etiology of his diabetes is not competent, such evidence is not material in this case. Finally, in his July 2010 notice of disagreement, the Veteran stated that he "believe[d] that Agent Orange run off got into the ocean and when [the U.S.S. Coral Sea's] drinking water was processed [he] was exposed." The Board also finds that this evidence is not competent. The Veteran's military occupational specialty (MOS), as noted on his Form DD-214, was Electrician Repairman. The Veteran is not therefore competent to state that he performed or witnessed any testing of the drinking water on the U.S.S. Coral Sea or that he is definitively able to state that he was aware of Agent Orange in the drinking water when he was aboard that vessel during his period of service. Furthermore, the Veteran's statements are unsupported by any other evidence of record and are purely speculative in nature; he has not provided any evidence other than his own assertions that the U.S.S. Coral Sea's drinking water when he was aboard that vessel actually contained Agent Orange, or that any runoff of that chemical was obtained from the ocean during the desalinization process. In short, such evidence does not serve to constitute any documented exposure to Agent Orange during military service, but instead is just merely unsupported speculation on the part of the Veteran regarding the quality of his drinking water aboard the U.S.S. Coral Sea during his period of service. Such unsupported and speculative statements are not competent evidence and therefore are not material evidence in this case. See Id. Accordingly, the Board finds that no new and material evidence has been received since the November 2005 rating decision with respect to the claim of service connection for diabetes mellitus, type II; reopening of that claim must therefore be denied at this time. See 38 C.F.R. §§3.102, 3.156. Respecting the peripheral neuropathy and amputation of toes claims, the evidence received since November 2005 demonstrates a diagnosis of peripheral neuropathy of his bilateral lower extremities and that toes of the Veteran's bilateral feet have been amputated as a result of his diabetes mellitus. Thus, in one sense, the Board notes that one unestablished fact necessary to substantiate those claims-the presence of current disabilities-has been met. As to the loss of toes and neuropathy secondary to diabetes mellitus, evidence received since the 2005 denial shows that the Veteran has lost toes and has neuropathy both due to his diabetes mellitus. For example, January 2011 VA treatment notes show that he had toe amputations due to his diabetes. Similarly, records from McKennan Hospital and University Health Center from April 2015 document that the Veteran has diabetes mellitus neuropathy. As this is new and material evidence with regard to the unestablished fact of whether he had these conditions, the technical requirements for reopening have been met if those conditions are viewed in isolation from his diabetes. However, viewing those conditions in such isolation is illogical in this case. Specifically, those claims are raised as secondary claims to the Veteran's diabetes mellitus. As noted above, the evidence demonstrates that those conditions are related to the Veteran's diabetes mellitus and did not exist during service or until many years after service, or until after diagnosis of diabetes mellitus in 1998. The Veteran's contentions throughout the appeal period are of a secondary nature to his diabetes mellitus and not as a direct theory of entitlement. As discussed above, reopening the claim for diabetes mellitus is being denied in this case. Thus, the requisite first element for secondary service connection claims-the presence of a service-connected disability-is not present in this case. Consequently, the neuropathy and toes amputations are manifestations of the diabetes and as the Board is not reopening the diabetes claim, the evidence is against reopening claims for service connections claimed solely as manifestations of the Veteran's diabetes. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102. ORDER New and material evidence with respect to the claim of service connection for diabetes mellitus, type II, has not been received, and reopening that claim is denied. New and material evidence with respect to the claim of service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus has not been received, and reopening that claim is denied. New and material evidence with respect to the claim of service connection for amputations of toes of the bilateral feet as secondary to diabetes mellitus has not been received, and reopening that claim is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs