Citation Nr: 1800281 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-10 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for type II diabetes mellitus. 3. Entitlement to service connection for neuropathy of the right foot. 4. Entitlement to service connection for neuropathy of the left foot. 5. Entitlement to service connection for ischemic heart disease status post open heart surgery. 6. Entitlement to service connection for arteriosclerosis (claimed as arterial chlorosis). 7. Entitlement to service connection for borderline glaucoma. 8. Entitlement to service connection for right knee arthritis status post replacement. 9. Entitlement to service connection for left knee arthritis status post replacement. 10. Entitlement to service connection for a respiratory condition, claimed as mild obstructive ventilatory defect. 11. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to March 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and May 2015 and November 2015 rating decisions of the VA RO in Indianapolis, Indiana. Jurisdiction for the September 2013 rating decision was subsequently transferred to the Indianapolis RO. The September 2013 rating decision denied service connection for diabetes mellitus, ischemic heart disease, arteriosclerosis, right and left knee arthritis, and glaucoma and denied a total disability evaluation based on individual unemployability. The Veteran submitted a notice of disagreement in October 2013. The RO issued a statement of the case in February 2017. The May 2015 rating decision denied service connection for posttraumatic stress disorder (PTSD). The Veteran submitted a notice of disagreement in May 2016. The RO issued a statement of the case in February 2017. The November 2015 rating decision denied service connection for mild obstructive ventilatory defect and neuropathy of the bilateral feet. The Veteran submitted a notice of disagreement in November 2015. The RO issued a statement of the case in February 2017. The Veteran perfected his appeal on all issues with a February 2017 VA Form 9. In February 2017, the RO issued statements of the case for the issues from all three rating decisions. The Veteran then perfected his appeal with a February 2017 VA Form 9. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2014). The issues of service connection for bilateral knee arthritis and a respiratory condition and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran in this case served on active duty from January 1960 to March 1962. 2. At his September 2017 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal on the issue of entitlement to service connection for posttraumatic stress disorder is requested. 3. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era or in the Korean DMZ between April 1, 1968, and August 31, 1971. He has not established actual exposure to an herbicide agent. 4. The Veteran does not have type II diabetes mellitus that had onset during or was caused by service. 5. The Veteran does not have neuropathy of the right foot that had onset during or was caused by service. 6. The Veteran does not have neuropathy of the left foot that had onset during or was caused by service. 7. The Veteran does not have ischemic heart disease that had onset during or was caused by service. 8. The Veteran does not have arteriosclerosis status post replacement that had onset during or was caused by service. 9. The Veteran does not have borderline glaucoma that had onset during or was caused by service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to service connection for posttraumatic stress disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for type II diabetes mellitus have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for neuropathy of the right foot have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for neuropathy of the left foot have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for ischemic heart disease have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for arteriosclerosis have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for borderline glaucoma have not all been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal - Posttraumatic Stress Disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his appeal on the issue of entitlement to service connection for posttraumatic stress disorder. See September 2017 hearing transcript. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. II. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2014); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). III. Service Connection - Generally 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. §§ 1131 (2014); 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 between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). A compensable (10 percent) degree of diabetes is diabetes mellitus that is manageable by restricted diet on. See 38 C.F.R. § 4.119, Diagnostic Code 7913. The record does not contain any record from within one year of the Veteran's March 1962 separation from service. As such, there is no evidence of a diagnosis of diabetes within the one-year presumptive period and service connection for type I diabetes mellitus on a presumptive basis cannot be established under 38 C.F.R. § 3.309(a). Service connection also may be presumed for certain diseases, including type II diabetes mellitus and ischemic heart disease, for veterans who were exposed to an herbicide agent such as that found in "Agent Orange" during active service. See 38 C.F.R. § 3.309(e). The Veteran's neuropathy and glaucoma claims all derivative of his diabetes claim and his arteriosclerosis and ischemic heart disease claims also depends solely on exposure to an herbicide agents during service Additionally, exposure to herbicide agents is presumed for veterans who served in the Republic of Vietnam, during the Vietnam Era (from January 9, 1962 to May 7, 1975). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Furthermore, exposure to herbicide agents is presumed for veterans who 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 this period. The Veteran's service records do not show service in the Republic of Vietnam or in the Korean DMZ. Instead, these records show that he served in Germany from June 12, 1960 to February 26, 1962. The Veteran has not argued the contrary. Likewise, he has not argued, and the record does not show, that he had actual visitation to the Republic of Vietnam during his service. As such, he is not entitled to the presumption of exposure to herbicide agents. Instead, the Veteran has alleged exposure to herbicide agents through heavy contact with people returning from Vietnam and Korea, their clothing, and equipment, in his position as a supply specialist stationed in Germany. Alternately, he stated that he was exposed to herbicides used to kill foliage around his Army post. These scenarios are not contemplated within the presumption of herbicide exposure and therefore actual exposure in either manner must be affirmatively established. The Veteran has not identified a specific verifiable exposure. A February 2013 VA Form 21-3101, Request for Information, found no record of exposure to herbicides. In his statements, the Veteran has described the type of routine contact he had with military personnel, clothing, and equipment returning from Vietnam and Korea. He argues that some of this equipment could have been exposed to herbicide agents and could have retained those agents on transport in order to expose him to herbicide agents when he came in contact with the equipment in Germany as part of his supply clerk duties. The Veteran's time in Germany overlaps the Vietnam Era by several weeks, but predates the Korean DMZ presumptive period by several years. Although the Veteran may have had contact with other service members for which exposure to herbicide agents is presume, their presumptive exposure does not expand to everyone they come into contact with after the fact. In describing his theory of exposure, the Veteran does not claim to be able to identify herbicide agents on people, clothing, and/or equipment. He does not state that at any time during this service he was told by someone qualified to identify herbicide agents that the people, clothing, and/or equipment had retained such agents despite the rigors of their transport to Germany. Thus, the Veteran is not claiming to have actual firsthand knowledge of a specific incident in which he was exposed to herbicide agents. Absent competent and credible evidence of a specific incident of actual exposure, the Board does not concede exposure to herbicide agents. The Board categorically rejects the Veteran's argument that his development of multiple conditions for which service connection is presumed in the case of herbicide-exposed veterans is in itself evidence of such exposure. Additionally, the Board notes that while the Veteran has argued that there is no other explanation for his development of these conditions as no one in his family has diseases like he has, this is inconsistent with the medical evidence that shows that his brother also has diabetes mellitus. Compare January 2013 statement with December 2011 VA treatment record (noting that the Veteran's brother is an amputee due to diabetes mellitus). The Veteran's argument that he must have been exposed to herbicide agents to account for his current disabilities is unfounded. Furthermore, his contention that there is no other explanation for his having these diseases, based on family history, is an opinion that requires medical expertise to render. This is because whether or not family history is a requirement for having such diseases is a complex question outside the realm of knowledge of a lay person. The Veteran has not demonstrated such expertise and therefore his opinion in this regard is not competent evidence. No examination was provided with regard to these issues. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the evidence does not establish diabetes, neuropathy, heart disease, arteriosclerosis, or glaucoma or any related injury during service. The service treatment records are silent for complaint of, treatment for, or a diagnosis of any of these conditions during his active duty service. As explained above, there is no evidence of exposure to herbicide agents in service. There is no competent evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked. As such, no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claims of entitlement to service connection for type II diabetes mellitus, neuropathy of the right and left foot, ischemic heart disease, arteriosclerosis, or borderline glaucoma. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal on the issue of entitlement to service connection for posttraumatic stress disorder is dismissed. Service connection for type II diabetes mellitus is denied. Service connection for neuropathy of the right foot is denied. Service connection for neuropathy of the left foot is denied. Service connection for ischemic heart disease status post open heart surgery is denied. Service connection for arteriosclerosis is denied. Service connection for borderline glaucoma is denied. REMAND The Veteran is seeking service connection for bilateral knee arthritis status post replacement. The record shows that he has had total knee replacement in both knees due to arthritis. At his hearing, the Veteran testified that his knees began to hurt during service, which he attributed to the required running and to running while carrying an 80-pound pack during basic training. He did not seek medical treatment for this while in service, but his January 1962 separation examination shows complaints of leg cramps while exercising. This is sufficient to trigger VA's duty to provide an examination. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus far, no VA examination has been provided. Thus an examination and opinions should be obtained on remand. Similarly, the Veteran is seeking service connection for a respiratory condition, claimed as mild obstructive ventilatory defect. The record includes a diagnosis of chronic obstructive pulmonary disease (COPD). His January 1962 separation examination shows frequent colds. He was treated for cold symptoms in June 1961. At his hearing, the Veteran stated that he believed that his respiratory problems were related to cold weather running in service. Again, this is sufficient to trigger VA's duty to provide an examination. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus far, no VA examination has been provided. Thus an examination and opinions should be obtained on remand. With regard to the Veteran's claim for a total disability rating based on individual unemployability (TDIU), the result of this remand on the issues of service connection for bilateral knee arthritis and a respiratory condition may impact the Veteran's claim for TDIU. As such it is inextricably intertwined. Issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate any outstanding 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. Schedule the Veteran for a VA knee examination. The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed. All indicated studies should be conducted, and all findings reported in detail. The examiner must accomplish the following and must include a rationale to support any opinion provided. Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and/or left knee arthritis had onset during active service or was caused by active service. In doing so, the examiner is asked to address whether the Veteran's in-service complaints of leg pain represent an in-service onset of either condition. If the examiner cannot provide the above opinion, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies. If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. 2. Schedule the Veteran for a VA respiratory examination. The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed. All indicated studies should be conducted, and all findings reported in detail. The examiner must accomplish the following and must include a rationale to support any opinion provided. Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current respiratory condition had onset during active service or was caused by active service. In doing so, the examiner is asked to address whether the Veteran's in-service complaints of cold symptoms represent an in-service onset of this condition. If the examiner cannot provide the above opinion, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies. If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. 3. After completion of the above development and any additional development deemed necessary, readjudicate the claims for service connection bilateral knee arthritis, a respiratory condition, and TDIU in light of all evidence of record. If any benefit sought remains denied, issue the Veteran and his attorney a supplemental statement of the case, and afford adequate time to respond before returning the case to the Board for further adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (West 2014). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs