Citation Nr: 1746071 Decision Date: 10/17/17 Archive Date: 10/31/17 DOCKET NO. 13-30 934A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as secondary to toxic herbicide exposure. 2. Entitlement to service connection for a heart disorder, to include as secondary to herbicide exposure. 3. Entitlement to service connection for a prostate disorder, to include as secondary to herbicide exposure. 4. Entitlement to service connection for a tremor disorder, to include Parkinson's disease, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. These matters come before the Board of Veterans' Appeals (Board) from a June 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge, and the transcripts have been associated with the record. FINDINGS OF FACT 1. The Veteran has a diagnosis of diabetes mellitus, type 2, which is presumed related to his toxic herbicide exposure. 2. The Veteran has a diagnosis of coronary artery disease, which is presumed related to his toxic herbicide exposure 3. The Veteran's prostate disorder was not shown in service or for many years thereafter, and the evidence does not establish a relationship between his prostate disorder and active duty, or exposure to toxic herbicide exposure. 4. The Veteran's tremor disorder was not shown in service or for many years thereafter, and the evidence does not establish a relationship between his tremor disorder and active duty, or exposure to toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type 2, to include as due to toxic herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for entitlement to service connection for a heart disorder, to include as due to toxic herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 3. The criteria for entitlement to service connection for a prostate disorder, to include as related to toxic herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2016). 4. The criteria for entitlement to service connection for a tremor disorder, to include as related to toxic herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that his diabetes, tremors, heart, and prostate disorders are related to active service. 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, 1131 (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). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, 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); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection may be presumed for certain diseases, including diabetes mellitus and coronary artery disease, if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. § 3.307(a)(6), 3.309(e). However, the Veteran's prostate and tremor disorders are not subject to this presumption. Id. A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during that period, 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. 38 C.F.R. § 3.307(a)(6)(iv). Diabetes Mellitus and Heart Disorder After review of the competent evidence, the Board determines that service connection for diabetes mellitus, type 2, and a heart disorder should be granted. As a preliminary matter, the Veteran's personnel records reflect that he served at Camp Casey near the Korean DMZ from April 1970 to April 1971, including service in the 2nd Infantry Division. In conjunction with the personnel records, the Board finds the Veteran's testimony credible regarding his close proximity to the DMZ due to activities such as border patrol along the perimeter fence and transporting soldiers from the DMZ to Camp Casey. As such, the Veteran is presumed to have been exposed to toxic herbicides. 38 CFR 3.307(a)(6)(iv). Next, the objective medical evidence indicates that the Veteran has a diagnosis of diabetes mellitus, type 2, and coronary artery disease. Therefore, presumptive service connection is warranted for these disabilities under 38 C.F.R. § 3.309(e). Prostate Disorder and Tremors Based on the evidence of record, the Board finds that service connection for a prostate disorder and tremors is not warranted. The Veteran's service treatment records do not reflect complaints, symptoms, treatment, or a diagnosis of a prostate or tremor disorder. Specifically, the Veteran's March 1971 separation examination does not reflect any diagnosis, complaints, or symptoms related to the Veteran's prostate or tremors. In fact, the Veteran specifically stated that "I am in good health." Moreover, the post-service evidence does not reflect symptoms of a prostate disorder until almost 30 years after separation from service. Indeed, the medical evidence reflects that the Veteran did not have prostate symptoms until 2000, and was not diagnosed with benign prostatic hyperplasia (BPH) until approximately 2010. With respect to the Veteran's tremor disorder, the medical treatment records indicate that the Veteran had tremors as early as 1988, and was diagnosed with an essential tremor disorder in 1996. Importantly, the records do not indicate, and the Veteran specifically denied in an August 2008 treatment note, that he has a diagnosis of Parkinson's disease. As such, the Veteran's tremor disorder is not subject to presumptive service connection under 38 C.F.R. §§ 3.309(a). As part of this claim, the Board recognizes the statements made by the Veteran regarding his history of symptoms. Nevertheless, the Veteran does not assert that his prostate and tremor disorders were continuous since service. Instead, he only claims his disorders are related to exposure to toxic herbicides. Therefore, continuity is not established based on the evidence of record. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's asserted disabilities to active duty service. Here, while the first reported diagnosis of an essential tremor was in 1996, the Veteran's August 2008 VA treatment records report that the Veteran had a benign essential tremor for 20 years (since 1988). No etiological opinions were offered as to the cause of the tremors. With respect to the Veteran's prostate disorder or symptoms related thereto, the November 2000 VA treatment records report that the Veteran had a slightly enlarged prostate. However, the Veteran was not diagnosed with BPH until 2010. Significantly, the Board notes that the Veteran has not offered any medical evidence, including private medical opinions, to support his assertions that his prostate and tremor disorders are related to active service, including as secondary to his toxic herbicide exposure. Therefore, the objective medical evidence does not establish a nexus between the Veteran's disorders and active duty service. The Board has also considered the statements made by the Veteran relating his prostate and tremor disorders to his active service, including toxic herbicide exposure. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his prostate and tremor disorders. See Jandreau, 492 F.3d at 1377, n.4. Because these disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disabilities are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. Additionally, given the absence of in-service evidence of chronic manifestations of the disorders on appeal, and no evidence of the disorders for many years after separation, a VA examination is not warranted. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the available records and medical evidence is sufficient to make an adequate determination as to this claim. Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited 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 v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for diabetes mellitus, type 2, to include as secondary to toxic herbicide exposure, is granted. Service connection for a heart disorder, to include as secondary to toxic herbicide exposure, is granted. Service connection for a prostate disorder, to include as secondary to toxic herbicide exposure, is denied. Service connection for a tremor disorder, to include Parkinson's disease, to include as secondary to toxic herbicide exposure, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs