Citation Nr: 1644729 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 12-34 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. 2. Entitlement to service connection for ischemic heart disease, status-post coronary artery bypass graft (CABG), claimed as four-way bypass open heart surgery as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for impotency/erectile dysfunction as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in December 2012, the Veteran filed a Form 9 requesting a Travel Board Hearing. Subsequently, in August 2015, VA received a statement from the Veteran that withdrew his request for a Board hearing. FINDINGS OF FACT 1. The evidence of record does not competently and credibly establish that the Veteran set foot in Vietnam and/or was exposed to herbicides during service. 2. The Veteran's current diabetes mellitus is not shown to be causally or etiologically related to any disease, injury or incident in service, and did not manifest within one year of the Veteran's discharge from service. 3. The Veteran's current ischemic heart disease, status-post CABG is not shown to be causally or etiologically related to any disease, injury or incident in service, and did not manifest within one year of the Veteran's discharge from service. 4. The Veteran's current impotency/erectile dysfunction is not shown to be causally or etiologically related to any disease, injury or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1153, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 2. The criteria for service connection for ischemic heart disease, status-post CABG, claimed as four-way bypass open heart surgery as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 3. The criteria for service connection for impotency/erectile dysfunction as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Here, regarding the duty to notify, the Veteran was sent a comprehensive predecisional VCAA letter in February 2006 and another comprehensive letter in February 2009 regarding these issues. Next, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records including service treatment records, post-service VA treatment, and private treatment records. The Veteran has not identified any additional outstanding records. As will be discussed further below the Veteran has not been afforded a VA examination. The evidence of record does not indicate evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies. Thus, a VA examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board has carefully reviewed the record and determines there is no additional development needed for adjudication. The Board finds that VA has satisfied its duties to notify and assist the Veteran. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307, 3.309. Service connection for the chronic diseases enumerated in 38 U.S.C.A. § 1112, may also be proven by lay evidence alone if the evidence shows continuity of symptomatology for that chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include diabetes, are presumed to have been incurred in-service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309. The U.S. Court of Appeals for the Federal Circuit affirmed VA's interpretation of § 3.307 requiring "the servicemember's presence at some point on the landmass or the inland waters of Vietnam." Haas v. Peake, 525 F.3d. 1168, 1193 (Fed. Cir. 2008), cert. denied 129 S. Ct. 102 (Jan. 21, 2009). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit-of-the-doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Diabetes Mellitus The Veteran contends that his diabetes is related to his alleged herbicide exposure while serving aboard a Navy vessel off the shores of Vietnam. As such, he claims that service connection is warranted. Private treatment records reflect that the Veteran has a diagnosis of diabetes mellitus, type II. Thus, the current disability criterion is met. The Veteran's DD 214 and service personnel records reflect that he served honorably in the U.S. Navy as an electronics technician from July 1962 to July 1966. His July 1961 induction examination and his July 1966 separation examination, both show no abnormalities entering or leaving service. The Veteran's service treatment records (STRs) do not show a diagnosis of diabetes during service. Personnel records from September 1964 to March 1966 annotate that the Veteran served aboard vessels that operated off the shores of Vietnam from July 1964 to September 1964. The Veteran does not allege that he entered the mainland and there is no indication in his personnel records that he had "boots on the ground" time in Vietnam. The Board notes that qualifying service in the Republic of Vietnam, including service on the inland waterways, is presumed to expose a veteran to herbicides, but the presumption does not include mere service on a deep-water naval vessel in the waters offshore. See Haas v. Peake, 525 F.3d 1168, 1193-97 (2008); 66 Fed. Reg. 23, 166 (May 8, 2001); 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Here, the evidence indicates that the Veteran did not serve on the mainland in the Republic of Vietnam, but instead was in the surrounding deep waters only. Application of the presumption is restricted by the law and VA procedures. VA's Adjudication Procedures Manual M21-1 states that service aboard a ship in open deep-water, to include anchoring, is not qualifying service for herbicide presumption. M21-1.IV.ii.2.C.3.m. Although the Veteran is competent to report observations during his service, adjudicators will determine qualifying service for presumptions purposes. In an effort to corroborate the Veteran's contentions, VA requested information in regards to the Veteran's service and received a VA From 3101 response dated July 2006, that the Veteran's service record provided no conclusive proof that the Veteran was physically in-country. Moreover, the Veteran provided a statement in regards to a separate posttraumatic stress disorder (PTSD) claim in March 2006. The statement identified three separate PTSD stressors that the Veteran alleged during his service, and none of the stressors asserted that the Veteran ventured onto the Vietnam mainland. Based on the foregoing, the Board finds that the preponderance of the evidence is against the second element of service connection - an in-service incurrence of a disease or injury. The Board acknowledges that the Veteran is competent to provide observable symptoms of his diabetes condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to render a diagnosis regarding the etiology of his condition, which requires medical expertise involving the body's endocrine system. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, the record contains no medical opinions in regards to the etiology of the Veteran's diabetes condition. In this regard, the Board notes that it the Veteran's responsibility to present and support a claim for benefits. 38 U.S.C.A. § 5107(a). The Board finds the Veteran's diabetes mellitus, type II is not shown to be causally or etiologically related to any disease, injury or incident in-service, and did not manifest within one year of his discharge from service. Consequently service connection is not warranted based on herbicide exposure. The evidence of record does not show, and the Veteran does not contend, that his diabetes had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his alleged herbicide exposure. There is also no indication in the record of continuity of symptoms of diabetes since service. Accordingly, service connection on such bases is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus, type II. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Ischemic Heart Disease The Veteran contends that his ischemic heart disease, status-post CABG is proximately caused by or aggravated by his diabetes condition, thus warranting service connection. The Veteran's private treatment records reveal that he has a current heart condition that required surgery in February 2002. As noted above in the diabetes analysis, the Veteran's entrance and separation examinations did not record any abnormalities. During service the Veteran received no diagnosis related to a heart condition. Post-service treatment records from August 1995 to September 2001 reveal that the Veteran had a history of coronary artery disease and had a myocardial infarction in 1995, some twenty-nine years after service. Following the initial surgery the Veteran had a four-vessel CABG in February 2002. The claims file is absent any competent medical opinion relating the current heart condition to active service. Treatment records do not show an etiological service connection. Moreover, the February 2002 surgery records annotate a family history of heart disease, specifically regarding the Veteran's father who suffered a heart attack at the age of 50, then subsequently passed away at the age of 60 due to a myocardial infraction. The evidence does not show, and the Veteran does not contend, that his heart condition had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his assertion that the condition is related to his diabetes. The Veteran is competent to report observable symptoms. However, he is not competent to render a diagnosis of a chronic heart condition based on such symptoms, as this requires medical expertise of the body's complex cardiovascular system. Thus, for the foregoing reasons, an award of service connection on a direct basis must fail. 38 C.F.R. § 3.304. Furthermore, the Veteran's diabetes condition is not service-connected, therefore the heart condition cannot legally be utilized as the proximate cause/aggravating factor of the heart condition under the regulation. 38 C.F.R. § 3.310. In sum, there is no basis for an award of service connection for a heart condition. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for ischemic heart disease, status-post CABG, must be denied. Impotency The Veteran contends that his diabetes causes or aggravates his impotency/erectile dysfunction condition, and thus he is warranted service connection. Private treatment records reveal that the Veteran has a current diagnosis for erectile dysfunction, thus the criterion for a current disability is met. During service the Veteran was not treated for erectile issues. His separation examination denotes no erectile abnormalities. The first instance of the Veteran having erectile issues in his post-service treatment records was in June 2002 at an appointment following his February 2002 four-vessel CABG surgery. See August 1995 to December 2005 Everett Clinic Records. Thus, the Board finds that the preponderance of the evidence is against the second element of service connection - an in-service incurrence of a disease or injury. The weight of the competent evidence of record shows that the Veteran's impotency issues began thirty-six years following service after he had heart surgery. There is no indication in the post-service treatment records that the Veteran's impotency is related to his military service. The Board acknowledges the Veteran's belief that his erectile issues are related to his diabetes. Again, the Board finds that in this case, the determination of the origin and identification of the erectile condition is a medical question needing knowledge or training regarding vascular/circulatory functioning of the body. The evidence does not show, and the Veteran does not contend, that his erectile condition had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his alleged herbicide exposure. There is also no indication in the record of continuity of symptoms of erectile dysfunction since service. Accordingly, the evidence weighs against direct service connection. 38 C.F.R. § 3.304. Moreover, as noted above, the Veteran's diabetes is not service-connected; therefore any assertion that the erectile dysfunction condition is secondary to diabetes is not legally viable. 38 C.F.R. § 3.310. In sum, the preponderance of the evidence is against a finding of entitlement for service connection for erectile dysfunction, therefore reasonable doubt does not arise, and the claim must be denied in this respect. (CONTINUTED ON THE NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for ischemic heart disease, status-post CABG, claimed as four-way bypass open heart surgery and as secondary to diabetes mellitus, type II, is denied. Entitlement to service connection for impotency/erectile dysfunction, to include as secondary to diabetes mellitus, type II, is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs