Citation Nr: 1708313 Decision Date: 03/17/17 Archive Date: 04/03/17 DOCKET NO. 10-33 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for diabetes mellitus, type II, as due to herbicide agent exposure. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1968 and from June 1976 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied service connection for diabetes mellitus, type II, as due to herbicide agent exposure. In September 2014, the Board remanded the case for further development of the record. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for an acquired psychiatric disorder has been raised by the record in March 2009 and August 2010 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. The Veteran was not presumptively exposed to herbicide agents during active service, and was not actually exposed to herbicide agents during service. 2. Symptoms of diabetes mellitus were not chronic in service and continuous after service. 3. Diabetes mellitus did not manifest to a compensable degree within one year of separation from service. 4. Currently diagnosed diabetes mellitus, type II, is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. 38 U.S.C.A. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim at issue by notice letter dated January 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, and private treatment records identified by the Veteran have been obtained and associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While VA did not provide the Veteran with an examination and did not obtain a medical opinion as to the etiology of the Veteran's diabetes mellitus, type II, the Board finds that VA had no obligation to do so. As explained in this decision, the Board finds that the weight of the evidence demonstrates no in-service exposure to an herbicide agent, and no symptoms, injury, or disease related to diabetes mellitus in service. Thus, there is no reasonable possibility that a VA opinion could aid in substantiating the claim for service connection because there is no relevant injury, disease, event, or exposure in service to which the current disability could be related by competent opinion. See 38 U.S.C.A. § 5103A(a)(2) (West 2014) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). Absent evidence that indicates that the Veteran has a current claimed disability related to an injury, disease, event, or exposure in service, the Board finds a VA examination or opinion is not necessary for disposition of the claim. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. The AOJ has made efforts to obtain evidence identified by the Veteran and these records have been made a part of the Veteran's claims file. The Veteran has not identified any outstanding evidence that needs to be obtained. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Diabetes mellitus is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2016). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id. at note 3. The diseases listed at § 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 acute and subacute 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). VA regulations specify that the last date on which 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. 38 C.F.R. § 3.307(a) (6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Analysis The Veteran contends that service connection is warranted for his diabetes mellitus, type II, as due to herbicide agent exposure in Vietnam. See December 2007 VA Form 21-526 (Veterans Application for Compensation or Pension). The Veteran asserts that he was in Vietnam for over six months on temporary duty and that while driving a jeep in Da Nang in 1967-68 while on "R&R," he was hit by an airborne mist so concentrated that he needed to run the windshield wipers. See September 2009 correspondence (notice of disagreement). When he returned to his main duty station at Bien Hoa, his eyes started to spasm but he was unable to get into sick call. His eyes stopped spasming after 12 hours and he claims that is when they gave him glasses. See March 2009 correspondence. The Veteran further contends that his service in Vietnam involved classified groups and that could explain why his records do not reflect service in Vietnam. See September 2009 correspondence (notice of disagreement). The Veteran also states that he received special pay while in Vietnam. Id.; see also August 2010 VA Form 9. The Veteran has a current diagnosis of diabetes mellitus, type II. Private treatment records show that the Veteran was diagnosed for and began treatment for diabetes mellitus in June 2007. The Veteran's DD Form 214 and personnel records show that he served in the Air Force as a general purpose vehicle repairman, and spent one year and two days in foreign and/or sea service. The Veteran's military personnel records reflect that the Veteran was stationed at Kirtland Airforce Base in New Mexico before being stationed at the Royal Thai Air Force Base (RTAFB) in Udorn, Thailand from August 1967 to August 1968. The Veteran returned back to the United States in August 1968. The Veteran's military personnel records and service treatment records reflect that the Veteran was stationed at Udorn RTAFB throughout the time period from August 1967 to August 1968. See August 1967 and July 1968 military personnel record; see also May 1968 Performance Report; see also August 1967, March 1968, May 1968, June 1968, July 1968 service treatment records. The Board notes that while the Veteran asserts he served with classified groups in Vietnam, his personnel records do not reflect evidence of such and the Veteran has not provided dates of such operations. Rather, there is a simple notation in his personnel records that he had secret security clearance. See July 1967 Air Force Form 899 (Permanent Change of Station Order - Military). The Board notes that although the Veteran claims he was not issued glasses until after he was hit with the mist in 1967-68, his service treatment records indicate that he was issued glasses in August 1965 while stationed at Kirtland AFB and prior to leaving for Thailand. Furthermore, the AOJ attempted to verify the Veteran's account of having visited Vietnam on for temporary duty and leave. The Veteran asserts that he was paid while in Vietnam and that his pay stubs should be able to verify that he was in Vietnam. However, research conducted by the JSRRC, received by the VA in November 2015, reflects that no pay records were found. The Veteran has not been able to provide the Board any corroboration to his statements that he was in Vietnam. In light of the Veteran's military personnel records and service treatment records, the Board finds that the Veteran did not have actual duty or visitation in the Republic of Vietnam. Thus, the Board finds that the Veteran's assertion indicating that he was exposed to herbicide agents while in Vietnam is not credible. The Board notes that the Veteran does not claim herbicide exposure while stationed in Thailand. It is also noted that he did not have a military occupational specialty which placed him near the perimeter of the Udorn Air Force base he served on. While no presumption of herbicide agent exposure has been satisfied, the claim must be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will also adjudicate the claim on a theory of direct entitlement to service connection for diabetes mellitus. Service treatment records, to include a July 1968 separation examination, do not identify any injury, symptoms, or treatment related to diabetes mellitus. The Veteran has not otherwise identified symptoms related to diabetes mellitus in service, or injuries or incidents, other than the alleged herbicide agent exposure, which has not been confirmed in this case. However, in his August 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran stated that "[he] always had sugar problems. [He] had to eat right to be able to function." The Board acknowledges that a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a lay person, the Veteran is not competent to provide a medical diagnosis regarding diabetes mellitus, particularly on the basis of vague symptoms common to many diseases or illnesses; such matters require medical expertise and laboratory testing. See id. at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions regarding the onset of his diabetes mellitus. In addition to considering competence, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In weighing the credibility of lay assertions, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The record does not reflect that the Veteran complained of or sought treatment for low blood sugar during service or after service. Instead, the record shows that the Veteran was not diagnosed with diabetes mellitus until June 2007, decades after service. Therefore, the Board finds that the Veteran's statement regarding his low blood sugar is not credible because it is unsupported by existing medical evidence. Accordingly, the Board finds that symptoms of diabetes mellitus were not chronic in service and continuous after service separation. Because diabetes mellitus did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303(b) is not warranted. The Board finds that the weight of the evidence does not support direct service connection for diabetes mellitus. There is no evidence of complaints related to, treatment for, or diagnoses of diabetes mellitus during active service, and there is no indication of symptoms, treatment, or diagnoses for diabetes mellitus until decades after service separation. The evidence of record does not relate currently diagnosed diabetes mellitus to service. As such, the Board finds that the weight of the evidence shows that service connection for diabetes mellitus is not warranted. To the extent that the Veteran contends that his diabetes mellitus is related to herbicide agent exposure in service, due to the lack of corroborating evidence in official documents or elsewhere, and inconsistencies shown by the record in the Veteran's report regarding the alleged exposure, the Board finds that that the Veteran's lay statements are not credible to establish that he was actually exposed to any herbicide agent in service. See Bardwell, 24 Vet. App. at 40 (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). In the Veteran's lay statements, he contends that he was exposed to herbicides in Vietnam, but has not submitted any evidence outside of his own lay assertions to corroborate his allegation of exposure. Absent either credible evidence of herbicide agent exposure or corroborating evidence of actual exposure to herbicide agents in service, the Board finds that there is no basis for direct service connection due to herbicide agent exposure. For the reasons discussed above, a preponderance of the evidence is against the claim for service connection diabetes mellitus. Because the preponderance of the evidence is against the Veteran's appeal, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2016). ORDER Service connection for diabetes mellitus, type II, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs