Citation Nr: 1754636 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-14 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for ischemic heart disease (IHD). 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board has expanded the claim on appeal to one for service connection for an acquired psychiatric disability, to include PTSD, major depressive disorder, and anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The change is also reflected on the title page. In April 2017, the Board remanded the current issues for further evidentiary development. In regards to the IHD and diabetes claim, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for an acquired psychiatric 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's IHD has not been shown to be etiologically related his active military service. 2. The Veteran's diabetes mellitus had its onset after his period of active service and has not been shown to be etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for IHD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for establishing service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his IHD and diabetes mellitus are the result of or had their onset in service. In the Veteran's original 2003 claim for entitlement to service connection for diabetes the Veteran reported that he was exposed to "chemicals" while stationed in Okinawa, Japan. He stated that "[w]e were back and forth from Okinawa to Vietnam during the night from June, July and August, 1965." The Veteran maintains that he transported supplies from Okinawa to Vietnam and served between one and two weeks on the mainland of Vietnam. I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Compliant VCAA notice was provided in May 2011. In addition, the Board finds that the duty to assist a claimant has been satisfied. Service treatment records (STRs), service personnel records, and post-service treatment records have been associated with the claims file, and the Veteran has presented testimony at DRO and Board hearings. VA's duty to assist also includes affording a veteran a VA examination when warranted. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, in June 2017, the Veteran underwent VA examinations for IHD and diabetes mellitus. The examiners detailed the Veteran's assertions, conducted all appropriate testing and reported the results later that month. Id. at 311. The Board acknowledges that a case-specific inquiry has not been sent to the U.S. Army & Joint Services Records Research Center (JSRRC) in an attempt to verify the herbicide exposure the Veteran has described in connection with his claim. However, the AOJ developed this case in accordance with the applicable provisions for developing claims based on service on the mainland of Vietnam-the only manner in which the Veteran has asserted he was exposed to herbicides. In a January 2012 and July 2017 memoranda, the AOJ made a formal finding of lack of information required to corroborate the Veteran's allegation of Agent Orange exposure on land in Vietnam. Further, the memoranda indicated that all VA procedures to obtain this information from the veteran were properly followed. In light of the AOJ's findings, inability to verify herbicide exposure of the type the Veteran has described, remand to attempt to verify such exposure would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)) (remand not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the Veteran). In short, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim at this time. There is no indication that any additional evidence that has a bearing on the outcome of the claim is obtainable but has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of this appeal, and remanding the case to the AOJ for further development would be an essentially redundant exercise that would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis, 6 Vet. App. at 430 (1994). Therefore, the Board finds that the duties to notify and duty to assist have been satisfied, and it will proceed to the merits of the claim. II. Applicable Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or in certain areas near the Demilitarized Zone in the Republic of Korea from April 1, 1968 to August 31, 1971, is presumed to have been exposed to certain designated herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In the case of such a Veteran, service connection based on herbicide exposure will be presumed for certain specified diseases, including ischemic heart disease, that become manifest to a compensable degree. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). "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); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom, Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In order to establish qualifying "[s]ervice in the Republic of Vietnam," a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); VAOPGCPREC 27-97. Service on a deep-water naval vessel off the shores of Vietnam may not be considered "[s]ervice in the Republic of Vietnam" for purposes of presumptive service connection for diseases associated with Agent Orange exposure. VAOPGCPREC 27-97; 66 Fed. Reg. 23166 (May 8, 2001). III. Analysis VA treatment records confirm that the Veteran has been diagnosed with diabetes mellitus and IHD. Accordingly, a current disability is established for both claims, and the question becomes whether either diabetes mellitus or IHD is related to service. Unfortunately, following review of the record, the Board finds that the probative evidence weighs against a relationship, such that service connection for IHD and diabetes are not warranted. Turning first to the applicable presumptions, the evidence of record does not demonstrate that the Veteran had qualifying "[s]ervice in the Republic of Vietnam" as that phrase has been defined, such that herbicide exposure may be presumed. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In that regard, the Veteran reported in his original 2003 diabetes claim that "[w]e were back and forth from Okinawa to Vietnam during the night from June, July and August, 1965." Later, the Veteran reported in a March 2011 Statement in Support of Service Connection for PTSD that he was assigned to the 117th Transportation Unit and traveled from Okinawa to Vietnam to unload equipment and chemicals sometime between February 1964 to March 1964. In a July 2011 statement, the Veteran reported that he was assigned for two weeks to the 173rd Airborne and served in "An Khe Vietnam." In addition, the June 2017 VA examination report documented the Veteran's reports of herbicide exposure while stationed in Vietnam. Parenthetically, the Board acknowledges that the June 2017 VA examiner noted the Veteran's reports of serving in Thailand. However, in an August 2017 report of contact, the Veteran indicated that he did not remember telling the June 2017 examiner about serving in Thailand. Instead he maintained that he served in Vietnam and Japan. As such, the Board finds the argument related to herbicide exposure in Thailand abandoned. The VA has taken significant steps to verify the Veteran's reports of service in Vietnam; however, these efforts have not produced evidence favorable to the Veteran's claim. Military personnel records confirm that the Veteran served in Japan between January 1964 and April 1964. Specifically, records documented that the Veteran departed Langley Air Force Base on January 24, 1964 and he arrived in Kadena Air Force Base in Okinawa. Then, the Veteran departed Kadena Air Force Base in Okinawa on April 4, 1969 and arrived at Langley Air Force Base on April 7, 1964. Also, military personnel records verify that on January 25, 1964 he was assigned to the 117th Transportation Company (Terminal Service), duty assignment of Longshoreman. Further, the Veteran's military personnel records do not verify any assignments with the 173rd Airborne. Military personnel records do not include any documentation that the Veteran was assigned or transported to Vietnam during the four month period in 1964. Following the April 2017 Remand, the VA Appeals Management Center contacted the JSRRC to verify the Veteran's contention of herbicide exposure. According to the July 2017 Memorandum, the JSRRC reported the following: "We research the historical information available to this office; to include the 1964 unit history submitted by the 117th Transportation Company. We are unable to verify that the 173rd Transportation Company was deployed to Vietnam in 1964. The history did not provide any information to document the incidents describe by Mr. [REDACTED]." Without verification of service within the Republic of Vietnam, the Board cannot find that the Veteran is entitled to the presumption of exposure to herbicide agents based on service in Vietnam during the requisite period. Next the Board addresses the Veteran's contention that he was exposed to herbicide agent in Okinawa, Japan while handling equipment. The Board does not doubt the Veteran's sincere belief that he was exposed to herbicides in service, and it acknowledges that a layperson is competent to report on matters of which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, there is no indication in the record that the Veteran possesses the necessary expertise to identify chemical compounds, such that his observations are sufficient to establish the presence of herbicide agents while transporting material in Okinawa, Japan. See 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). Thus, his opinion that he was exposed to herbicides while stationed in Okinawa lacks probative value. In short, as the Veteran is not entitled to a presumption of exposure to herbicide agents, what is required in this case is a showing that he was directly exposed to herbicide agents. Here, no competent evidence of such exposure exists. As a final matter, the Board has considered whether either condition may otherwise be directly related to service. The Board first turns to the claim for service connection for IHD. During a June 1965 separation medical examination, the examiner found that the "cardiac silhouette is above normal limits. This should be correlated with the clinical findings." The June 2017 VA examiner, however, questioned the June 1965 finding. The VA examiner noted that a May 1987 chest x-ray revealed the heart size to be within normal limits. The VA examiner stated that the later finding of normal heart size suggests that the 1965 chest x-ray was altered by technique. Regardless of whether the separation examination is evidence of a cardiac condition in service, service connection is not warranted because the record lacks any probative evidence that the Veteran's IHD is directly related to his military service. In particular, the Board finds that the June 2017 VA examination lacks probative value. The June 2017 VA examiner opined that IHD and diabetes are more likely than not related to the Veteran's military service. In support, the examiner relied on the Veteran's report of duty in Vietnam. Essentially, the examiner made a credibility determination and relied on the Veteran's reports of service, rather than military personnel records. The examiner's reliance on the Veteran's report of service in Vietnam is misplaced. As previously discussed, military personnel records do not verify military service in either Vietnam. Accordingly, the June 2017 VA examination is not probative because it is based on an unverified factual premise. Turning next to the Veteran's claim for diabetes, service treatment records, including his separation examination, reveal no diagnoses of treatment for a diabetic condition, and, his post-service treatment records indicate that he was diagnosed with diabetes in August 2002, over 30 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Without evidence to support an in-service injury, symptoms related to a disability, or an event the second element is not met and service connection is not warranted. Moreover, as discussed above, the June 2017 VA medical opinion lacks any probative value and the third element of service connection is not met. Ultimately, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107 (a) (2012). In this instance, there is no evidence of IHD or diabetes in service or within one year following discharge from service, exposure to herbicides may not be presumed, there is no competent and probative evidence that the Veteran was exposed to herbicides during service, and there is no evidence that either IHD or diabetes is otherwise etiologically related to service. For all of the foregoing reasons, the preponderance of the evidence is against the Veteran's claim, and service connection for IHD and diabetes must be denied. 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, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for ischemic heart disease is denied. Service connection for diabetes is denied. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's service connection claim for an acquired psychiatric disability. A February 2014 VA treatment record documented a diagnosis of dementia, mild depression NOS, unspecified; major neurocognitive disorder, and anxiety disorder. A January 2016 VA treatment record documented diagnoses of depressive disorder, recurrent, mild; and a history of anxiety disorder. In June 2017, the Veteran was afforded a VA mental health examination. The examination report documented diagnoses of major neurocognitive disorder with behavior disturbance. Ultimately, the June 2017 VA examiner opined that the neurocognitive disorder is less likely as not caused by any incident of Veteran's active duty service, explaining that the causes of neurocognitive disorders are neurophysiological. The June 2017 VA examiner did not address previous diagnoses of anxiety disorder and major depressive disorder. Thus, the Board finds that this claim should be remanded to afford the Veteran with a new VA medical opinion. 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. Update the file with any VA treatment records relevant to the Veteran's claims to the present. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Obtain a new VA medical opinion to determine the etiology of any diagnosed psychiatric disorder. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all current psychiatric diagnoses. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. The examiner should endeavor to differentiate symptoms and impairments due to any diagnosed psychiatric disorder. If the examiner cannot differentiate symptoms and impairments, the examiner should state so and provide reasons why such differentiation cannot be made. (b) If the criteria for a diagnosis of PTSD are met, please specify the stressor(s) supporting the diagnosis. (c) With respect to each diagnosed psychiatric disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disability arose during service or is otherwise related to any incident of service. Please explain why or why not. In rendering the requested opinions, please specifically discuss the significance of: (1) A February 2014 VA treatment record documenting diagnoses of dementia, mild depression NOS, unspecified; major neurocognitive disorder, and anxiety disorder; and (2) A January 2016 VA treatment record documenting diagnoses of depressive disorder, recurrent, mild; and a history of anxiety disorder. A complete rationale for the opinion rendered must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 3. After completing the requested actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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 is 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. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs