Citation Nr: 1802834 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 16-13 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. 2. Entitlement to a rating in excess of 10 percent for bilateral pes cavus with hammertoes. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2014 and February 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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 a rating in excess of 10 percent for bilateral pes cavus with hammertoes 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 was not exposed to herbicides during service. 2. Diabetes mellitus type II was not manifest during service, within one year of service, and is not otherwise attributable to service. CONCLUSION OF LAW 1. Diabetes mellitus type II was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist With respect to the Veteran's claim herein, not including providing a VA examination, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding a VA examination, the Board notes the Veteran was not provided with a VA examination including a nexus opinion regarding his diabetes mellitus type II. However, VA examinations are only required if there is evidence of a current disability and evidence suggesting the current symptoms may be associated with military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds the evidence does not suggest the Veteran's current disability is related to his active duty service. Although the Veteran has reported he incurred diabetes mellitus type II based on exposure to herbicides, the Board finds that the Veteran was not exposed to herbicides during his time in active service. Additionally, the Veteran, and the evidence of record, does not suggest any other in-service incidents beyond herbicide exposure that the current disabilities could be related to. Therefore, the Board finds the factors of McLendon were not met, and no VA examination was required. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate this claim has been obtained. II. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A § 1154 (a) (West 2014). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (2016). On August 31, 2010, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease were added to the list. 75 Fed. Reg. 53202 (2010). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke that do not directly affect the muscles of the heart. Id. at 53204. In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Regardless of whether a claimed disability is recognized under 38 U.S.C. § 1116, pertaining to herbicide agent exposure presumptive diseases, a Veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In cases where a Veteran has served in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b) (2012); 38 C.F.R. § 3.304 (d) (2017). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records are silent for complaints, treatment, or diagnosis of diabetes mellitus type II. The Veteran was not diagnosed with diabetes mellitus type II until around 2002 according to the Veteran's January 2014 private physician's report. Thus, the Board finds that the Veteran does not warrant service connection on a direct basis for diabetes mellitus type II as there are no records of treatment in service or within one year following service. Regarding the Veteran's assertions of exposure to herbicides, the Veteran's DD214 does not note service in Vietnam. Although the DD 214 notes that his awards included Vietnam Service Medal and the Republic of Vietnam Campaign Medal, the Board notes that these medals were not awarded exclusively for service in Vietnam, but were also sometimes awarded for service done outside Vietnam that was in support of operations in Vietnam. The service personnel records indicate that the Veteran served in Japan. A September 2014 memorandum from the US Army and Joint Services Record Research Center (JSRRC) determined that there was no evidence in the service treatment record for in-country service in Vietnam. The Veteran was assigned to Fleet Tactical Support Squadron Twenty-one detachment Japan. The squadron's main base camp location was Naval Air Station Atsugi, Japan. The history did not reveal that squadron aircraft landed in or operated from the Republic of Vietnam. Thus, JSRRC determined that there was insufficient evidence of record to corroborate in-country Vietnam service. The Board notes that the RO attempted to retrieve more information from the Veteran to ascertain service in Vietnam. In January 2017, the JSRRC made a formal finding of inability to concede Agent Orange exposure. The JSRRC researched the 1964 command history for Fleet Tactical Support Squadron Twenty-one. The history did not document personnel from this command flew to an airbase in Vietnam. Also, the Naval History & Heritage Command (NHHC), the custodian of the US Navy histories, did not maintain a 1966-1967 command history for Fleet Logistics Support Squadron 51. However, JSRRC researched the historical information available to this office. They were unable to locate documentation verifying elements from this command flew to airbases in Vietnam during 1966-1967 time period. In light of the evidence received from JSRRC, the Board concludes that the Veteran was not exposed to an herbicide agent such as Agent Orange during his service. The Veteran was stationed in Japan and was found to not have had any missions which would have exposed him to herbicides. The RO extensively reviewed the Veteran's service and history and concluded that there is no verification of herbicide exposure and the Board agrees. While the Veteran has indicated that he was exposed to herbicides by stating that he was in-country of Vietnam on several occasions to repair C1As, and specifically remembers being in Da Nang, Tan Santu/Saigon and Chu Lai between August 1964 and January 1967, the Board finds most persuasive the research and results found by the JSRRC. Thus, because the Board has found that the Veteran was not exposed to herbicides, presumptive service connection is not warranted for diabetes mellitus type II. The Veteran maintains that he has diabetes mellitus type II which is related to claimed in-service herbicide exposure in Vietnam. Lay evidence may be competent to establish medical etiology or nexus. Although lay persons are competent to provide opinions on some medical issues, here causation of diabetes mellitus type II fall outside the realm of knowledge of a lay person. Jandreau, 492 F.3d at 1377 n. 4. The documentary evidence shows that the Veteran did not serve in Vietnam. Thus, the Veteran was not exposed to herbicides in service. Because the preponderance of the evidence is against the claim, service connection must be denied. ORDER Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure is denied. REMAND Regrettably, the Board must remand this matter for additional development. On October 2014, the Veteran was afforded a VA examination for his increased rating claim. The examiner noted diagnoses of hammertoes bilaterally and pes cavus, right foot. The Veteran stated that he used supports until they wore out and saw a private physician and had osteotomies performed in June 2013 on the left foot and January 2014 on the right foot involving the second through fourth metatarsal head. The Veteran reported pain on weight-bearing and at night; however, flare-ups did not impact the function of the foot and the Veteran did not report having any functional loss or functional impairment of the foot. The Veteran had pain on manipulation of the feet. Hammertoes were noted on the second through fourth toe bilaterally, but the examiner noted that surgery was done and corrected this although the fourth toe bilaterally was still hammering. There was definite tenderness under metatarsal heads bilaterally. There was no effect on plantar fascia due to pes cavus and no dorsiflexion and varus deformity due to pes cavus. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time. Scars were noted but they were not painful or unstable, had a total area equal to or greater than 39 square cm, or were located on the head, face or neck. The Veteran did not use any assistive device as a normal mode of locomotion. In a VA Form 646 submitted in March 2017, the Veteran's representative stated that there were more recent records which would suggest that the Veteran warrants a higher rating. Upon review of the record, in a VA treatment note dated November 2016, the Veteran underwent surgery for his fourth hammertoe. Thus, the Board must remand for an additional VA opinion to determine the current severity of the Veteran's bilateral pes cavus with hammertoes. Accordingly, the case is REMANDED for the following actions: (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. Obtain any outstanding private or VA treatment records. Request that the Veteran identify and assist, if possible, with the location of any additional records. Associate these with the claims file. 2. After completion of the foregoing, direct the claims file to the examiner who conducted the October 2014 VA examination, if available, or another examiner with relevant expertise for an opinion on the current severity of the Veteran's bilateral pes cavus with hammertoes. A VA examination should be scheduled. The claims file and a copy of this remand should be made available to the examiner for review. An examination should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the feet. The examiner should specifically identify any current symptoms that are attributable to the Veteran's pes cavus. In this regard, the examiner should indicate whether the Veteran has hammertoes, plantar fasciitis, any ankle disorder, and weak foot as a result of his pes cavus and, if so, the approximate date of onset of such condition(s). A specific finding should be made as to whether there are any neurological abnormalities associated with the Veteran's pes cavus and any disabilities found to be attributed to such condition. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. Then return the appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs