Citation Nr: 1758954 Decision Date: 12/19/17 Archive Date: 12/28/17 DOCKET NO. 13-18 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include exposure to herbicides. 2. Entitlement to service connection for gout, to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1953 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Honolulu, Hawaii. The Veteran testified at a hearing with a Decision Review Officer in October 2011 and at a videoconference with the Board in March 2014. A copy of the hearing transcripts is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACTS 1. The Veteran served at the U-Tapao Thai Air Base during the Vietnam era, however, herbicide exposure is not verified and may not be presumed. 2. The Veteran's diabetes did not manifest within one year after discharge from service, and there is insufficient evidence that links the condition to the Veteran's military service, including herbicide exposure. 3. The Veteran's gout did not result from service or a service connected disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014)); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for gout are not satisfied. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided this required notice and information regarding his claim for service connection for his diabetes mellitus and gout in a letter dated November 2009 and April 2010, respectively. He has not alleged any notice deficiency during the processing and adjudication of his claims. Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records, private treatment records, providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein. The Veteran was afforded a VA examination in May 2010, May 2012, July 2015, August 2017. The Board finds that the VA examination reports are adequate to decide the case because it is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined in May 2017. See 38 C.F.R. § 3.327(a) (2017). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38. U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a)(2016). "To establish a right to compensation for a present disability, a Veteran 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, i.e. a nexus, between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2017). Service connection for certain chronic diseases, such as arthritis, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a) (2017). With respect to herbicide exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309 (e) shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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)(iii). Diseases associated with herbicide exposure for purposes of the presumption include arteriosclerosis. 38 C.F.R. § 3.309 (e). VA has extended the presumption of exposure to Agent Orange and the presumption of service connection for arteriosclerosis to a Vietnam-era veteran who served in Thailand at certain designated bases, and whose duties placed him or her on or near the perimeter of the base where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, 2.C.10. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that qualify for this consideration. As such, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (5) (emphasis added). As a separate matter, the Board must determine whether lay evidence is credible, and factors such as possible bias, conflicting statements, and the absence of contemporaneous medical evidence may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (Board has duty to determine the credibility and probative weight of the evidence); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("Credibility is determined by the fact finder."). It is the Veteran's contention that his diabetes mellitus is related to herbicide exposure during in service, while he was stationed at U-Tapao Air Force Base in Thailand. a. Diabetes It is the Veteran's contention that he had developed diabetes mellitus as a result of herbicide exposure during his service at a Thai Air Force base. In his November 2009 statement, the Veteran stated that he was a Director of Transportation of all USAF units in Thailand, a Staff Transportation Officer, 635th Combat Support Group, and a Commander of the 635th Transportation Squadron during his deployment to U-Tapao Airfield, Thailand. Based on his September 2015 letter, the Veteran claims that his primary duty as a Squadron Commander included repairing and operating vehicles, and working with both 201 US military personnel and 133 Thai workers. Because of this, he was routinely required to be "at and beyond the base perimeter investigating vehicle accidents, vehicle misuse and abuse." The Veteran also stated that as a Staff Transportation Officer with the 365th Combat Support Group, he was exposed to more herbicides after a June 1972 mortar attack during his assignment. The Veteran was afforded a VA examination to address his Agent Orange exposure in November 2012. The nurse practitioner concluded that the Veteran was indeed, exposed to Agent Orange when he served in Thailand at U-Tapao Air Base. However, the Department of Defense issued a memorandum indicating that only limited testing of tactical herbicides (including Agent Orange) was conducted in Thailand from April 2 to September 8 1964. The United States Air Force has stated that other than testing in 1964 on the Pranburi Military Reservation, there are no other records of tactical herbicide storage or use in Thailand. There are records indicating the use of commercial herbicides for vegetation control within the perimeters of air bases, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. There are no records of tactical herbicide spraying in Thailand after 1964. However, this report provide that if a claimed herbicide exposure cannot be resolved based on the information contained in the memorandum, then follow-up inquiries should be sent to the Joint Services Records Research Center (JSRRC). The question pertaining to the issue of whether or not the Veteran could have been exposed to herbicides during his time at U-Tapao Air Base was remanded in July 2014. The Board had instructed the JSRRC to verify the Veteran's in-service herbicide exposure. Since this was not developed, the matter was remanded again in December 2015 to address the same issue. In reviewing the Veteran's military occupation specialty (MOS) and evaluation reports, the Board now finds the Veteran's testimony regarding his in-service duties has not been verified. In reviewing the record now, the Board does not rely on the May 2012 Agent Orange examination, where a physician found that the Veteran was exposed to Agent Orange. The report is not shown to have been based upon a review of the Veteran's claims file, but only the Veteran's statements. Thus, the Board assigns it little probative weight because it is speculative and unsupported by rationale. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009). The Board acknowledges the Veteran's outstanding performance as detailed in the Veteran's evaluations. He received high praises for his duties in 1972 for his supervision of 18 civilian and 6 military personnel engaged in development, implementing, and interpreting policies, plans, procedures, and techniques for 3 water terminal complexes. He also supervised the completion of a very comprehensive after action report of the ILWU struck of the West Coast ports. In May 1973, the Veteran received high commendations again for his leadership and duties as a Commander of the 635th Combat Support Group Transportation Squadron. The Veteran's duties included operating and maintaining a fleet of vehicles, monitoring the flow of Air Force cargo, coordinating crew transport requirements for tenant B-52 and KC-135 Wings, and overseeing the health, morale, welfare and discipline of 200 enlisted and 129 civilian personnel. The Board finds that the Veteran's MOS does not specifically detail his duties at the perimeter as listed in M21-1MR, Part IVA, Subpt. Ii, ch. 2, sec. C, topic 10(q), and that he has not provided sufficient evidence of service at the perimeter of the air base. His statements and the circumstances of his service fail to resolve reasonable doubt in favor of the claim. See 38 U.S.C.A. § 1154(a) (West 2014) (which provides that where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence.) His duties in supervising personnel on base do not indicate that he served in the capacity of a guard around the perimeter of U-Tapao. The Board recognizes that the occupational specialties listed as having presumed exposure to herbicides in Thailand were those service members whose duties included actually walking the perimeter of the airbases. While the Board notes the Veteran's contention of such temporary assignments, the Veteran has not provided any additional evidence to support the contention that he was assigned to temporary guard duty around the perimeter of the air base. As a result, the Board cannot concede exposure to herbicides on account of duty at U-Tapao Air Base. The Board is mindful of the Veteran's sincere belief that he was directly exposed to herbicides while serving in Thailand. In light of his statements in this case, and upon review of his service personnel records, the Board finds that the weight of the credible evidence is against finding that he was exposed to herbicides while stationed in Thailand. The Veteran also asserts that his diabetes developed as a result of his military service. In an April 2014 statement, the Veteran contends that the "greatest" cause to his diabetes occurred during his assignment between 1972 to 1973 when he was a Commander of the 635th Transportation Squadron and the 635th Combat Support Group. His duties allowed him very little sleep during the early hours between 2 am and 6 am. The Veteran also included a BBC article stating that shift workers with too little sleep, at the wrong time of the day, may increase the risk of developing diabetes and obesity. The Veteran's Service Treatment Records (STRs) were not reflective of a diagnosis or indication of diabetes mellitus. More than two decades after his separation from service, a notation in the Veteran's private treatment record noted that diabetes onset was 1989. However, the earliest record that documents a diagnosis of diabetes mellitus was a private treatment record dated December 2001. An October 2004 private treatment record reported a continued diagnosis of diabetes mellitus with mild nonproliferative diabetic retinopathy OU. The Veteran asserts that he was diagnosed with diabetes after taking a glucose test while he was still in service at Tripler Army Hospital by a Major in the Endocrinology Clinic. In December 2015, the Board remanded the matter so that in- service treatment records may be obtained to corroborate the Veteran's diagnosis in service. However, in a May 2017 letter, VA issued a letter finding that the inpatient medical treatment records at Wheeler Air Force Base Hospital between January 1971 and December 1973 could not be located. Furthermore, all efforts to obtain such records have been exhausted a continued attempts to obtain the records would be futile. The Board finds that the evidence preponderates against finding that diabetes mellitus manifested to a compensable degree within one year of separation from active duty or was a chronic disorder during service. As noted above, the Veteran's service treatment records do not show that diabetes mellitus was diagnosed or was chronic during service, or manifestations sufficient to identify a chronic disease entity. No evidence within one year of service discharge in 1973 note a diagnosis of diabetes mellitus. Accordingly, service connection for diabetes mellitus and on a presumptive basis, as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Moreover, in light of the onset of diabetes after separation from service, the Board finds diabetes mellitus did not have onset during service to warrant service connection. See 38 C.F.R. § 3.303 (d). The only evidence linking his diabetes mellitus to his service is the Veteran's own statements. To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service, the Board finds that the Veteran does not have the medical expertise to provide an opinion regarding the etiology of his diabetes mellitus. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran's assertions that there is a relationship between his diabetes mellitus and his service, to include as secondary to herbicide exposure, are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the claim is not warranted. b. Gout The Veteran contends that his gout is caused by his diabetes mellitus. The Board however, finds against the claim for service connection for gout, secondary to diabetes mellitus, since the claim for diabetes has been denied. Accordingly, the claim of entitlement to service connection under a secondary theory of entitlement lacks merit because the primary disability upon which the claim is based is not service connected. 38 C.F.R. § 3.310 (a). On this basis, the claim is denied. The Veteran also asserts service connection for his gout on a direct basis. He stated that he had reported a symptom of gout, evidenced by foot pain in 1957 and in 1958, while in service. In a June 2014 statement, the Veteran claimed that a 1973 pre-retirement physical examination indicated a notation of gout due to an allergic reaction to monosodium glutamate. He also asserts that his medication (allopurinol), which he began taking in 1993, is evidence of gout, showing that it had originated during service. The July 2015 VA examiner opined that the Veteran's gout was less likely than not incurred in or caused by the claimed in-service injury or event. In his rationale, the VA examiner explained that the Veteran's report of gout in 1973 was not supported by his in-service treatment records, since those records reported no objective evidence of gout. His separation examination report dated February 1973 showed normal clinical evaluation of the feet, lower extremities, upper extremities, and the spine. The normal clinical evaluation of the joints involved in those areas clearly and unmistakably showed no objective evidence of gout for medication used to treat such condition. Additionally, while there was a notation of foot/trouble pain in January 1958, which began in 1957, that condition was resolved during that time frame without objective evidence of continued symptoms. Since a January 1958 Report of Medical Examinations revealed normal lower extremities and feet, the examiner concluded that the reported foot pain in 1958 is consistent with an acute and transitory condition, instead of evidence of a chronic foot condition or gout. In addressing the Veteran's medications that are consistent with medications prescribed for gout, the examiner noted that Veteran did not take these medications until 20 years after separation from service. The Veteran's pharmacy records are consistent with his diagnosis of gout, but only years after military service. The Veteran was afforded another examination in August 2017. The examiner reported that his gout was diagnosed in 1993. However, the Veteran contends that he first developed gout in the 1960s. He also contends that he was treated for strep sore throat with antibiotics given without probiotic. This in turn, permanently damaged and altered his gut microbiotic flora, causing the development of the gout. The Veteran reported that he currently has gout in his right great toe several times per year and that he takes allopurinol on a daily basis to prevent the gout attacks. In conclusion, the examiner opined that the Veteran's gout is at least as likely as not due to his diet high in purines. After reviewing the medical evidence, the examiner explained that the cause of gout is due to the consumption of foods high in purines, which causes accumulation of uric acid as a result of the body's natural process of breaking down the purines. A diet high in beef, organ meat, seafood, alcohol, and foods with high fructose content all can contribute to gout. The examiner also noted that the Veteran's gout had been in control through proper diet since he appeared asymptomatic during the examination. The Board finds that the July 2015 and the August 2017 VA examination reports are highly probative. The Board has also considered the Veteran's lay statements in support of his claim. In multiple written statements, the Veteran has stated that he believed that his gout was related to his service. Although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case (determining the cause of gout), this issue falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). Gout is established by clinical testing, and to determine its cause requires medical knowledge and training that, as a layperson, the Veteran has not been shown to possess. Thus, his statements asserting the cause of his diagnosed gout are not competent evidence for this purpose. In sum, the evidence of record fails to establish that the Veteran's gout is related to his active service, and the claim of entitlement to service connection for gout is denied. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for gout, that doctrine does not apply. 38 U.S.C.A. § 5107 (b) (West 2014). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs