Citation Nr: 1753399 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 06-28 063A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) with a hiatal hernia. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to in-service herbicide agent exposure. 3. Entitlement to a rating in excess of 10 percent for a lumbar spine disability. 4. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. 5. Entitlement to a total disability rating base on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to March 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions from December 2004, August 2005, May 2006, and January 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that during the pendency of the Veteran's claim for increased rating, the Veteran explicitly raised a claim for TDIU. Where a Veteran, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to an increased rating for a back and right lower disabilities, entitlement to service connection for GERD, and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The weight of the probative evidence is against the finding that the Veteran was exposed to, or came in contact with herbicide agents during service. 2. The preponderance of evidence does not demonstrate that diagnosed diabetes arose during active service, within one year following separation from service, or is etiologically related to any aspect of active service. CONCLUSION OF LAW The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2016 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Service connection is also 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 (2017). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2017). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A Veteran who 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 during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 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 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). As a preliminary matter, the diseases for which presumptive service connection based on herbicide exposure is available include type II diabetes mellitus. 38 C.F.R. § 3.309(e) (2017). However, exposure to herbicides is not considered presumptively attached to the Veteran's claim, as the Veteran does not contend, and the record does not show that the Veteran ever served in or near the Republic of Vietnam during the Vietnam era. However, that does not preclude the Veteran from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155 (1997). Proof of direct service connection between exposure and disease requires a showing that exposure during service actually caused the malady which developed years later. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, the Veteran asserts that he was directly exposed to herbicides while serving as an aircraft mechanic at Barbers Point Airforce Base in Hawaii. Specifically, he contends that the aircraft he cleaned and repaired were used to spray and transport herbicide agents in Vietnam. Additionally, the Veteran maintains that he was not given protective clothing and, consequently, had extensive contact with the herbicide agents. In support of his claim, the Veteran has provided a series of articles and lay statements that address the use of herbicide agents outside of the Republic of Vietnam during the Vietnam era. He also has submitted a lay statement from a fellow service member, who indicated that he had worked with the Veteran in Hawaii loading barrels labeled "herbicide" onto aircraft and then cleaning out the aircraft after the barrels had been dispensed in Vietnam. To further bolster the claim, the Veteran has indicated that, in February 2005, he underwent a VA Agent Orange Registry Examination and was informed by a VA physician that diabetes mellitus was an "Agent Orange-related" condition for which he should file a claim for service connection, based on his account of having worked extensively around herbicides in service. The Veteran has also submitted a November 2006 written statement from a VA physician's assistant, who corroborated the Veteran's account of in-service herbicide exposure and indicated that the Veteran had been diagnosed with and prescribed oral medications for diabetes mellitus since February 2005. However, attempts to verify whether the Veteran was exposed to herbicide agents during service through the National Personnel Records Center (NPRC) produced negative findings. The RO submitted the Veteran's reports of exposure, including approximate dates, location, and nature of the exposure for a review of the Department of Defense's inventory of herbicide operations to determine whether herbicide was used as claimed. In a March 2011 email response, the following was noted: The Department of Defense documents and US Air Force historical writings did not provide any evidence that aircraft used in Vietnam to conduct tactical Agent Orange herbicide spraying operations had any contact with air bases in Hawaii. Agent Orange and other tactical herbicides manufactured in the US were shipped directly to Vietnam by merchant ships. There is no evidence that any tactical herbicides were stored on Hawaii for use in Vietnam. However, the Department of Defense has reported that, between May 1967 and June 1968, several small scale tactical herbicide tests were conducted in remote forest game refuges on Kauai Island near the Hawaii Agricultural Experimental Station. These did not involve US military personnel based on the Hawaiian Islands. Herbicide spraying operations in Vietnam were conducted between 1962 and early 1971 and code named "Operation Ranch Hand." They involved a number of C-123 twin engine cargo aircraft fitted with spray nozzles. These planes were based in Vietnam, primarily in the Saigon area, and did not fly out of the country for maintenance or "cleaning." Subsequently, the RO submitted a request to the Joint Services Records Research Center (JSRRC) to determine whether any United States aircraft that were used to spray and transport herbicide agents in Vietnam were cleaned and maintained at naval installations in Hawaii between September 1967 and March 1971. In a response that was printed in April 2011, JSRRC indicates a review of the 1967 to 1971 command histories submitted by the Naval Air Station at Barbers Point, Hawaii. According to the report, those histories documented that the Naval Air Station at Barbers Point serviced thousands of incoming aircraft each year. Additionally, JSRRC indicated a review of the Aviation Historical Summary outlining the history of Fleet Tactical Support Squadron Twenty-One (VR-21), covering the period of April 1, 1966, to December 31, 1969. The summary documents that VR-21 made hundreds of flights into South Vietnam in support of Southeast Asian operations. The airfield names and locations were not listed, nor was the cargo described. In addition, the publication "Operation Ranch Hand - the Air Force and Herbicides in Southeast Asia 1961-1971" was also reviewed. That publication documented that UC-123 providers conducted the majority of herbicide spraying missions in Vietnam. The publication also documents that in 1961 six herbicide spraying UC-123 providers en route to Vietnam stopped at Hickam Air Force Base in Hawaii. However, the aircraft stored fuel in the herbicide tanks in order to reach their destination. The publication does not indicate that herbicide spraying aircraft were serviced at Naval Air Station, Barbers Point. At a May 2011 VA examination, the Veteran reported that he was first treated for diabetes at VA after he was diagnosed in 2004. The examiner opined that the Veteran's diabetes mellitus was less likely as not caused by, aggravated by, or a result of in service event or otherwise related to service. The examiner relied on the email information cited above and the information received from JSRRC, and indicated that the Veteran's claims file did not provide any evidence that aircraft used in Vietnam to conduct tactical herbicide spraying operations had any contact with air bases in Hawaii. The examiner also noted that the Veteran did not serve in Vietnam, and indicated that the Veteran's primary care doctor who agreed with the Veteran's own statement that exposure to herbicide agents outside of Vietnam caused his diabetes did not provide any rationale or clinical medical literature to substantiate that opinion. Finally, the examiner noted that there was no presumption of herbicide use at the Veteran's Air Base in Hawaii. Later, in a May 2016 VA addendum nexus opinion, a VA examiner again found that the evidence of record did not demonstrate that the Veteran was exposed to herbicide agents, to include Agent Orange. The examiner noted that as the Veteran was determined not to have been exposed to herbicides, service connection cannot be established on that basis. The examiner further concluded that as there was no evidence that the Veteran's diabetes arose during service, to include any assertion by the Veteran to that end, that it was less likely than not that the Veteran's diabetes as etiologically related to any aspect of active service. The Board finds that both the May 2011 and May 2016 VA examiner's findings to be of high probative and dispositive of the claim. Specifically, the Board finds, as a matter of fact, that the Veteran was not exposed to herbicides while he was on active duty in Hawaii. The Board finds persuasive both the emailed finding of the Department of Defense and those findings by the JSRRC, that no UC-123 aircrafts that sprayed herbicides in Vietnam were serviced or cleaned at the Veteran's base in Hawaii. The Board recognizes that the both the Veteran and his fellow service member are competent to report that they loaded barrels onto aircraft and later cleaned up the residue from those containers. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board does not doubt the sincerity of their belief that the barrels contained herbicide agents. Nevertheless, the competent evidence of record does not show that either the Veteran or his fellow service member has the requisite scientific knowledge to identify the specific herbicide agents used. Accordingly, the Board finds that their written statements and the Veteran's account of herbicide agent exposure, transcribed in the February 2005 Agent Orange Registry Examination report, are insufficient to establish that he incurred direct exposure to herbicides in service. Moreover, with respect to the November 2006 statement of the VA physician's assistant, the Board acknowledges that the opinion of a licensed health care professional can been accepted as competent medical evidence. YT v. Brown, 9 Vet. App. 195 (1996); Goss v. Brown, 9 Vet. App. 109 (1996); Pond v. West, 12 Vet. App. 341 (1999). Nevertheless, the Board finds that the record does not show that the VA physician assistant is a diabetes specialist. Additionally, there is no indication that opinion was based on a review of all pertinent evidence in the Veteran's claims folder. 38 C.F.R. § 4.1 (2017). In any event, the Board considers it significant that the November 2006 VA physician's assistant did not expressly relate the Veteran's diabetes mellitus to service, including his claimed in-service Agent Orange exposure. While that VA physician's assistant referred to the Veteran's subjective history of Agent Orange exposure, the Board is not bound to accept medical opinions that are based on subjective history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). The VA physician assistant's transcription of the Veteran's subjective history of exposure to Agent Orange, unenhanced by additional medical comment, does not constitute competent medical evidence merely because the transcriber happens to be a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406 (1995). Therefore, the Board finds the VA physician assistant's statement is also of limited probative value to show that the Veteran was exposed to herbicides in service, and in turn, that his diabetes is related to active duty. Therefore, the Board finds that the preponderance of evidence is against the finding that the Veteran was exposed to herbicides during service. As the Veteran has not asserted any symptoms or claims of diagnosis of diabetes arising during active service, or within one year following separation from service, Board must also find that service connection on a direct or presumptive basis is not warranted. That finding is further supported by the May 2016 examiner, who after a thorough review of the evidence and medical history of record found no evidence that the Veteran's diabetes arose during active service, with no indication in the service medical records, and no evidence on separation examination of a diabetic condition. Accordingly, the examiner concluded that Veteran's diabetes was less likely than not due to service. However, inquiry with regards to service connection does not end there, as the Veteran's condition is among the chronic disabilities listed under 38 C.F.R. § 3.309(b), which can be service connected presumptively, and by showing continuity of symptomology. A review of the medical treatment records, during and post service, however, does not show any affirmative evidence that diabetes mellitus manifested during service, or within one year after service. The record is silent, to include any contentions from the Veteran that he had any symptoms or manifestations of diabetes in service or within one year following service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). Therefore, as there is no evidence of any continuity of symptoms since or directly after active service, continuity of symptomology cannot be established. Likewise, service connection cannot be granted on a presumptive basis, as there is no evidence that Veteran's condition rose to a compensable degree within a year after separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Accordingly, the Board finds that the preponderance of the evidence is against a finding that diabetes was incurred in, or is otherwise related to, active service. The preponderance of the evidence is also against a finding that the Veteran was exposed to herbicide agents during service. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for diabetes is denied. REMAND The Board finds that additional development is required for the claims for increased rating for a back disability and radiculopathy, and service connection for GERD. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims. With regard to the Veteran's claim for increased rating, the Board notes that the Veteran was last provided an examination in December 2011, nearly six years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding the back and right lower radiculopathy have been set forth by the Veteran and representative, since the last examination. When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability and functional loss. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the claims for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board is cognizant of the fact that the Veteran has been previously scheduled for VA examinations to assess the nature and etiology of the back disability and radiculopathy and did not attend scheduled examinations. However, subsequent letters from the Veteran's representative, and the Veteran himself, state that the Veteran was not able to attend those examinations due to lack of notification or lack of transportation to the examination site, along with poor health and hospital visits. The Board finds that constitutes good cause, and that another opportunity shall be provided to the Veteran to appear at an examination. With regards to the claim for service connection for GERD, the Board finds that the development remains incomplete. Specifically, the Board remand requested an examination that adequately addressed the etiology of GERD, to include determining if GERD pre-existed active service. A May 2016 VA opinion ultimately determined that there was clear and unmistakable evidence that GERD pre-existed service. However, the examiner did not address whether there was clear and unmistakable evidence that GERD was not aggravated by active service beyond its natural progression. The examiner only noted that GERD was not aggravated during service. The Board finds that determination does not meet the level of evidentiary certainty required by VA regulations or by the explicit directives of the Board remand. Therefore, the Board finds that remand is required to acquire an opinion with regard to the etiology of the Veteran's GERD. With respect to the claim for a TDIU, the Board finds that claim has been raised, as it relates to those issued remanded herein. Accordingly, since these increased rating claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim prior to the determination of such other claims. Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the claim for a TDIU is inextricably intertwined, and must be remanded also. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record. 3. Schedule the Veteran for a VA examination to determine the nature and severity of service-connected disabilities of the back and radiculopathy of the right lower extremity. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner should describe the symptomatology cause by the back and right lower extremity disabilities. The examiner should provide ranges of thoracolumbar spine motion for active and passive motion and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, incoordination, weakened motion, or on flare up. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Then, schedule the Veteran for a VA gastrointestinal examination with a medical doctor examiner who has not previously examined him. The examiner must review the claims file and should note that review in the report. The examiner should provide a rationale for the opinion and reconcile it with all relevant evidence of record, including the pre-service 1967 memorandum showing complaints of indigestion and heartburn. The examiner must also consider the service medical records, showing occasional abdominal pain and treatment for diarrhea, vomiting, nausea, and lower left quadrant tenderness, and the post-service medical records showing a July 1989 diagnosis of GERD with hiatal hernia and reflux and subsequent treatment for gastrointestinal symptoms. The examiner should also consider the Veterans assertions that GERD symptoms went undiagnosed in service and any additional lay evidence regarding a continuity of symptomatology since service. The examiner should also consider the statements of the post service physicians who treated the Veteran for gastrointestinal disorders. Additionally, the examiner should consider the Veteran's assertions that GERD began during service and has continued since that time. Specifically, the examiner's opinion should address whether there is clear and unmistakable evidence that that the Veteran had a preexisting gastrointestinal disability, including but not limited to GERD or hiatal hernia, and if so, state EXPLICITLY whether the evidence shows that it was clearly and unmistakably not aggravated (permanently worsened) during service beyond the natural progression of the disability. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that GERD first manifested in service. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs