Citation Nr: 1709005 Decision Date: 03/23/17 Archive Date: 04/07/17 DOCKET NO. 11-11 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to Agent Orange (AO) exposure. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to DM II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on a period of active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. These claims were remanded in November 2015 for further development. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran had in-service exposure to herbicide agents. 2. The weight of the evidence is against a finding that the Veteran's DM II is due to, or the result of his active service. 3. ED was not present during active service or for many years thereafter; and, the preponderance of the evidence fails to establish that it is etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for DM II have not been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for service connection for ED have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The duty to notify has been met. See May 2010 VA letter. The Veteran has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veteran has also been afforded adequate assistance in response to his claim. His service treatment records, military personnel records and VA Medical Center and private medical records have been obtained. The Veteran has been provided appropriate VA examinations in 2016, which are found to be adequate for adjudication purposes. The Veteran has not challenged the adequacy of his examinations nor identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. As indicated, this matter was remanded in November 2015 for further development including obtaining outstanding treatment and service records and VA examinations. All obtainable outstanding records have been associated with the claims file. In addition, the Veteran was notified of all unobtainable records. See February 2016 VA Development Letter. In April 2016, the Veteran was afforded VA examinations for his claimed conditions. The Board acknowledges that the examiner was directed, but failed, to opine as to the etiological relationship between the Veteran's ED and his DM II. This failure equates to harmless error. As discussed below, the claim for service connection for DM II has been denied. Consequently, a remand for the additional development of obtaining a secondary service opinion is unnecessary, as it would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, all remand instructions are deemed to be substantially complied with and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); the Veteran's diagnosed DM II is a qualifying chronic disease, his ED is not. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is only applicable for the DM II claim. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2016). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2016). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b)(2016); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including DM II, shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307 (a)(6) (2016). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2016). Service Connection for DM II The Veteran seeks service connection for his diagnosed DM II. See VAMC Erie Treatment records. He asserts that his DM II developed as a result of AO exposure he experienced in service. See March 2010 Application for Compensation or Pension. Alternatively, he asserts that while in service he was treated for, and diagnosed with, DM II. See January 2011 Notice of Disagreement and April 2016 VA examination. The Board will first address entitlement on the basis of AO exposure. The Veteran asserts being exposed to AO while serving on the USS Providence as it "travelled through coastal waters and inlet waterways of Vietnam." See March 2010 Application for Compensation or Pension. In this regard, his former representative specified that "he never stepped foot on Vietnam soil[,]" rather he was stationed off-shore. See May 2011 Statement of Accredited Representative. For clarification purposes, Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 are presumed to have been exposed to herbicide agents during service. 38 C.F.R. § 3.307 (a)(6). The phrase "service in Vietnam" includes service on Vietnam's inland waterways (brown water) to establish a presumption of Agent Orange exposure. See VA Adjudication Procedure Manual M21-1, IV.ii.1.H.2.a. Inland waterways are 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. The Veteran served on the USS Providence during the Vietnam era. Such is supported by his military personnel records. Nevertheless, AO exposure is not established by the record. Specifically, personnel records fail to confirm that the Veteran was aboard the Providence during a period in which the vessel was in the presence of "brown" water. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, updated June 15, 2016. Governmental searches also provided specific negative results with regard to evidence of exposure to AO. See December 2010 Formal Finding of Lack of Information issued by the Joint Service Records Research Center and November and December 2010 Defense Personnel Records Information Retrieval System results. These agencies note the Providence's deck logs "[did] not document that the ship docked, transited inland waters or that personnel stepped foot in the Republic of Vietnam." Id. In light of these facts, the preponderance of the evidence is against a finding of AO exposure. The Veteran does not allege in-country service. Governmental searches are negative for evidence of "brown water" service. Current military lists similarly do not include the Veteran's vessel as one associated with "brown water" duty during his period of active service. Comparatively, the Veteran has provided no affirmative evidence to the contrary. As such, his is not presumed to have been exposed to AO or other tactical herbicides during his active service. Therefore, service connection for DM II must be denied on that basis. 38 C.F.R. §§ 3.307, 3.309(e) (2016); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009). Turning to alternate theories of service connection, the Veteran's service treatment records are negative for any complaints, findings, or diagnosis of DM II. The Board notes that the Veteran recall in-service treatment for DM II at Great Lakes Naval Hospital between 1965 and 1966. No such records have been discovered; and, his discharge examination (two years later) was negative for any reference to diabetes. In fact, the earliest post-service evidence of the disease is a medical record indicating it was diagnosed in May 2001. See Saint Vincent Health Center Erie, P.A. records. Thus, there is compelling, probative evidence that DM II was not manifested in service or to a compensable degree during the first year after the Veteran's discharge from service. As to continuity of symptomology, competent symptoms were not documented until many years after service. See VAMC Erie treatment records. The Board recognizes that the Veteran has reported suffering from "difficulty breathing and weakness" in and since service. However, a VA examiner has specifically opined that these described symptoms are inconsistent with a diagnosis of DM II. The record is silent for evidence of the Veteran receiving specialized training or having acquired any medical expertise in evaluating endocrine disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). As such, in this instance, his lay evidence does not constitute competent medical evidence and therefore it lacks probative value. In light of the aforementioned, continuity of symptomatology is not established. 38 C.F.R. § 3.303 (b). What remains for consideration is whether there is a nexus between the Veteran's service and his current diagnosis. There is no such evidence of record. To that point, in April 2016 a VA examiner opined that his DM II was less likely than not caused by, or incurred in, service. The examiner rationalized this finding against his negative service treatment records, his lack of AO exposure, and not receiving a diagnosis of DM II until 2001. The examiner indicated that the Veteran's lay assertions of in-service DM II symptomology and treatment were not supported by the record. Particularly, although hospitalized in service, the Veteran was solely treated for an upper respiratory infection and no mention was made of DM II. Moreover, the examiner explained that the "Veterans symptoms of shortness of breath with exertion and weakness are not known medical symptoms relating to" DM II. Rather, clinical literature supports that the majority of individuals with DM II are asymptomatic and the condition is usually only discovered upon blood testing. However, for those who display symptoms "classic symptoms include polyuria, polydipsia, nocturia, blurred vision and infrequently, [and] weight loss." The VA examiner's opinion is highly probative and sufficiently rationalized on the evidence of record. Further, this opinion is considered the most probative evidence of record as there are no competent medical opinions to the contrary. Consideration has been given to the Veteran's personal assertions that his DM II is proximately due to his service. To that point, lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the specific issues in this case, the etiology of DM II, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As stated, such lay evidence lacks probative value without evidence of the Veteran having specialized medical training or expertise. See King, 700 F.3d 1339, 1345 (Fed.Cir. 2012). Accordingly, the Board finds that the claim of entitlement to service connection for DM II must be denied under any theory of entitlement. Consideration has been given to the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Ortiz, supra. ED as secondary to DM II The Veteran claims that service connection is warranted for ED as secondary to his DM II. A review of the medical evidence reflects that the Veteran has been diagnosed with ED. See April 2016 VA examination. However, the claim for service connection for DM II has been denied above. As such, there is no avenue for entitlement to service connection for the claim on a secondary basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has not asserted that his ED began in-service and the record itself does not support entitlement to service connection on a direct basis. Service treatment records are negative for any complaints or clinical findings indicative of ED, including on separation evaluation in December 1968. Further, on 2016 VA examination he specified that his symptoms began two decades after service separation. Such a report matches the clinical medical records in evidence which reflect a diagnosis of ED decades after service separation. See VAMC treatment records. In sum, the record simply lacks probative evidence which supports a grant of service connection for ED. To that point, the Board acknowledges that the Veteran is competent to report his subjective ED symptoms. However, he has specifically reported that his symptoms began decades after service separation. Moreover, even if he were to suggest that his symptoms were related to service he is not competent to do so. The specific issue of ED falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of urologic medicine. See Kahana, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report his symptoms, he is not competent to link those complaints to a particular etiology. His assertions are therefore not competent evidence of a medical nexus. Accordingly, the Board finds that the claims of entitlement to service connection for ED must be denied under any theory of entitlement. In reaching these 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 of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Ortiz, supra. (ORDER ON NEXT PAGE) ORDER Entitlement to service connection for DM II, to include as secondary to AO exposure, is denied. Entitlement to service connection for ED, to include as secondary to DM II, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs