Citation Nr: 1751403	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  16-62 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, including as due to herbicide exposure.

2. Entitlement to an increased rating for service-connected degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	Stacey Penn Clark, Attorney


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from September 1965 to October 1967.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 RO decision that in pertinent part, denied service connection for diabetes mellitus, and denied an increase in a 20 percent rating for a service-connected lumbar spine disability.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to an increased rating for the lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not have service in the Republic of Vietnam, and he is not shown by competent and probative evidence to have been exposed to herbicides in Korea or otherwise in service.

2. Diabetes mellitus was not shown in service or for many years thereafter, and there is no competent evidence suggesting a relationship between this disability and his active duty service.


CONCLUSION OF LAW

Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant with his claim. VA's duty to notify was satisfied by a letter dated in March 2014. 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).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted written statements in support of his claim. VA has obtained service treatment records (STRs), VA and private medical records, and assisted the appellant in obtaining evidence. The AOJ attempted to verify the Veteran's claimed Agent Orange exposure, but such exposure was not verified. 

In February 2015, the AOJ issued a formal finding that the information required to verify or confirm Vietnam in-country service or other means of alleged exposure were insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. The AOJ determined that all efforts to obtain the needed information had been exhausted, and any further attempts to verify the claimed Agent Orange exposure would be futile.

All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

As discussed below, there is no competent evidence suggesting that the Veteran's current diabetes mellitus may be associated with service. He has not provided any information concerning the existence of medical evidence that could support his claim. He has claimed exposure to herbicide agents in service, but such exposure is not confirmed by his records, and he is not shown to have served in the Republic of Vietnam. Accordingly, a VA medical examination is not warranted at this time. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam); Walker v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination.) 

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).


Service Connection

The Veteran contends that he incurred diabetes mellitus as a result of exposure to Agent Orange in Korea or Vietnam during service.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2016). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including type II diabetes mellitus, may be service connected if the requirements of 38 U.S.C.A. § 1116 (West 2014) and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. §§ 3.307 (d), 3.309(e) (2016). 

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing entitlement to service connection with proof of direct causation linking his claimed disability to his military service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation).

Under 38 C.F.R. § 3.307 (a)(6), 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307  (a)(6)(iii). "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. Id.; see also 38 C.F.R. § 3.313 (a); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam).

The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, in certain circumstances, a veteran may have been exposed to herbicides while serving in Korea. 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, operated in or near the Korean demilitarized zone (DMZ), in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

A review of the evidence reflects that the Veteran has been diagnosed with current diabetes mellitus. Consequently, the determinative issue is whether or not this disability is attributable to his military service.

The Veteran's service personnel records reflect that he served in the U.S. Army from September 1965 to October 1967, including service in Korea from April 10, 1966 to May 7, 1967. His last DD Form 214 shows that his primary military occupational specialty (MOS) was light weapons infantryman. He did not receive any combat citations. His service personnel records do not confirm service in the Republic of Vietnam.

Service treatment records are negative for complaints, treatment or diagnosis of diabetes mellitus. On separation medical examination in July 1967, his abdomen, viscera, and genitourinary system were normal. A urinalysis was negative for sugar and albumin. In a report of medical history completed in July 1967, the Veteran denied a history of sugar or albumin in his urine.

Post-service medical records are negative for diabetes mellitus for many years after service.

Private medical records from A.E.T., M.D. dated in 2005 reflect diagnoses of multiple medical conditions. These records are negative for a diagnosis of diabetes mellitus. The Veteran reported that he was exposed to Agent Orange in Vietnam.

In December 2006, the Veteran claimed service connection for lung cancer due to Agent Orange exposure while serving in Vietnam. He asserted that although his DD Form 214 does not show Vietnam service, he did serve temporary duty there for six weeks.

In February 2007, the National Personnel Records Center stated that there was no evidence in the Veteran's record to substantiate any service in the Republic of Vietnam.

At an April 2007 VA audiology examination, the Veteran reported that he spent 12 months overseas, with six months in Vietnam and six months in Korea.

VA medical records reflect treatment for multiple medical conditions. The first medical evidence of a diagnosis of diabetes mellitus is dated in April 2012. Subsequent medical records reflect treatment for diabetes mellitus.

In a December 2013 report of contact, the Veteran stated that while he was stationed with the 12th Artillery in Korea, his mess facilities were in Vietnam.

In a February 2014 statement, the Veteran said his first real unit was on the DMZ, and he was assigned to the 1st and 2nd Artillery. Then he was reassigned to the MSA20, and worked as a guard in watchtowers. He also checked the underground bunkers in which were stored big blue barrels, which he checked for leakage and moved around with a forklift. Later he was sent to CQ. He said that since their compound was small, they were trucked to the 1st and 12th for mess hall and the PX, and the OCS club was also there.

The Board has reviewed all of the evidence of record, and finds that service in the Republic of Vietnam during the Vietnam era is not shown in his service personnel records, and that the Veteran's statements in this regard are conflicting, and contradicted by his service personnel records.

The competent and credible evidence does not reflect that he served on the Korean DMZ between April 1, 1968, and August 31, 1971, or that he was otherwise exposed to an herbicide agent during service. As such, entitlement to service connection for diabetes mellitus may not be established based on presumed exposure to herbicides resulting from service in Vietnam or Korea.

In light of the inconsistencies in the Veteran's statements when considered with the other evidence of record, including his service personnel records, the Board finds that his assertions are not persuasive. See Cartright v. Derwinski, 2 Vet. App. 24, 25   (1991) (VA cannot ignore testimony simply because the individual involved is an interested party; personal interest may, however, affect the credibility of the evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the appellant in weighing credibility). See also AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).

In light of the foregoing, the Board finds that the service records are more probative and persuasive than the lay assertions as to the claimed exposure to herbicide agents in Korea or Vietnam. The Board finds that the probative value of the Veteran's lay evidence is outweighed by review of the Veteran's service personnel records and research efforts which resulted in conclusions that contradicted his own and serve as the most probative evidence in the current appeal as such are based on records kept contemporaneous to the claimed events.

Based on the sum of the evidence, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service. The Veteran's service records do not reflect service in Vietnam, or on the Korean DMZ between April 1, 1968, and August 31, 1971, and there is no presumption of exposure available to the Veteran. Accordingly, the presumptive provisions concerning diabetes and herbicide exposure are not available, and service connection on that basis is denied. 38 C.F.R. § 3.307 (a)(6); 38 C.F.R. § 3.309 (e). 

However, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Nonetheless, upon review of the record, the Board finds the evidence does not support a finding of service connection. 

Here, the service treatment records do not contain any evidence of treatment, diagnosis or findings consistent with diabetes mellitus. Diabetes mellitus was initially diagnosed in 2012. Thus, the Veteran's diabetes mellitus was not shown in service or within one year following discharge from service. Moreover, there is no competent evidence of record even suggesting that his current disability is related to service, nor does the Veteran contend his condition is related to service for reasons other than Agent Orange exposure. 

He has not alleged any symptoms or manifestations of diabetes mellitus occurring on a chronic or continuous basis since his separation from service. Therefore, the Board finds that entitlement to service connection for diabetes mellitus on a direct or presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303  (a), (b), 3.309(a).

Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for diabetes mellitus on any basis. Thus, the claim for service connection for diabetes mellitus is denied. 

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); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for diabetes mellitus, to include as due to herbicide exposure, is denied.


REMAND

Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim for an increased rating for the lumbar spine disability.
 
The Veteran most recently underwent a VA examination to assess the severity of his service-connected lumbar spine disability in April 2014. Subsequently, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include range of motion testing "for pain on both active and passive motion [and] weight-bearing and non-weight-bearing and if possible, with range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

The April 2014 VA examination report does not include the requisite findings. Therefore, the Board finds that a remand is necessary in order to conduct another VA examination. See 38 C.F.R. § 4.59 (2016); Correia, 28 Vet. App. at 170. The examiner should determine the current level of severity of his service-connected lumbar spine disability. 38 C.F.R. § 4.2; see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The VA examiner should review the claims file in connection with the examination, including the additional medical records added to the file after the last VA examination.

Ongoing relevant medical records should also be obtained. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. With any necessary releases, obtain updated VA and private medical records of treatment or evaluation of a spine disability, and associate them with the claims file.

2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disability. The electronic claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. 

(a) The examiner should report all range of motion measurements in degrees, and, to the extent possible, the spine should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and after repetitive use. The examiner should also consider whether there is likely to be additional range of motion loss as a result of pain, weakness, fatigability, or incoordination, or during flare-ups. If so, the examiner is asked to describe the additional loss in terms of degrees, if possible. 

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

(b) The examiner should note all symptomatology associated with the lumbar spine and any radiculopathy, if found, as well as the functional impact of the lumbar spine disability. The examiner should also address whether the Veteran has incapacitating episodes of disc disease and if so, the frequency and duration of such. 

Any opinions expressed by the examiner must be accompanied by a complete rationale.

3. Readjudicate the claim on appeal in light of all of the evidence of record, and with consideration of all potentially relevant Diagnostic Codes. If the appeal remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs