Citation Nr: 1803843 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-30 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicide agents. 3. Entitlement to service connection for glaucoma, to include as secondary to type 2 diabetes mellitus. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Betty Jones, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1969 to October 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO), (that denied service connection for hepatitis C), a July 2013 rating decision (that denied service connection for glaucoma), and a June 2014 rating decision (that denied service connection for IHD and reopened and denied a claim of service connection for type 2 diabetes mellitus). In October 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. The issue of service connection for hepatitis C is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran is not shown to have served in Vietnam or to otherwise have been exposed to Agent Orange/herbicide agents in service. 2. The Veteran's type 2 diabetes mellitus was not manifested in service or for many years thereafter, and is not shown to be etiologically related to his service. 3. The Veteran's IHD was not manifested in service or in the first postservice year, and is not shown to be etiologically related to his service. 4. The Veteran's glaucoma was not manifested in service or for many years thereafter, and is not shown to be etiologically related to his service; his diabetes is not service connected. CONCLUSIONS OF LAW 1. Service connection for type 2 diabetes mellitus is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Service connection for IHD is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. Service connection for glaucoma is not warranted; the claim of service connection for glaucoma as secondary to diabetes lacks legal merits. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by letters in February 2009, October 2009 and March 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. During the October 2017 Travel Board hearing, the undersigned identified the issues on appeal, explained what evidence is needed to substantiate the claims, and identified development to be completed. A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been compliance with 38 C.F.R. § 3.103 (c)(2), in accordance with Bryant. The Veteran's service treatment records (STRs) are associated with his record, and VA has obtained pertinent records he identified. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). To substantiate to claim of secondary service connection there must evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the claimed disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Certain chronic diseases (to include diabetes and cardiovascular disease) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for these three diseases). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(f). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases (to include type 2 diabetes mellitus and IHD) shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). A veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 7-93 (service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to apply; exposure to herbicides is not presumed in such instances. However, once exposure to herbicides is established by evidence of record, the presumption of service connection for herbicide-related diseases listed in 38 C.F.R. § 3.309(e) applies. When a veteran is not shown to be entitled to a presumption of service connection based on exposure to herbicide agents under 38 U.S.C. § 1116, such Veteran may nonetheless establish service on such basis with proof of actual direct causation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Type 2 diabetes mellitus and IHD The Veteran contends that he has type 2 diabetes and IHD due to exposure to herbicide agents in service. His service personal records show that he served aboard the U.S.S Kitty Hawk and U.S.S. Saratoga. His service treatment records (STRs) are silent for complaints, diagnoses, and treatment for type 2 diabetes mellitus or IHD. On September 1970 service separation examination, no pertinent abnormalities were noted. The endocrine system was normal. His heart was normal on clinical evaluation and a chest X-ray was negative. A July 1987 VA treatment record notes that the Veteran appeared to have "a non-ischemic dilated cardiomyopathy." A July 1987 surgical pathology report notes the Veteran's recent onset of chronic heart failure and shows a diagnosis of focal fibrosis. A May 1998 VA treatment record notes the Veteran's report of a family history of diabetes. He stated that he was unsure if he was a diabetic. A September 1998 VA treatment records notes a hemoglobin A1C count of 6.2%. A January 2003 VA treatment record notes that the Veteran had a fasting glucose of 385. A February 2003 treatment records notes that the Veteran was placed on antidiabetic medication. A November 2010 VA treatment record notes the Veteran's report of chest pain and a treatment plan for acute myocardial ischemia/acute coronary syndrome. A February 2011 VA treatment record notes that the Veteran was taking 15 units of Lantus insulin for type II diabetes mellitus. In a May 2012 statement, the Veteran related that while he was aboard the U.S.S. Kitty Hawk, it often docked in Vietnam. He reported that he was exposed to harmful chemicals from docking and being around servicemen who were exposed to harmful chemicals. He also reported that he would occasionally set foot on land while docked in Vietnam. In March 2014, AOJ correspondence to the Veteran sought identifying information (dates, locations, etc.) regarding his alleged exposure to herbicides while servicing aboard the U.S.S. Kitty Hawk; he did not respond. A June 2014 formal finding by the Joint Services Records Research Center (JSRRC) notes that the Veteran was asked to provide the circumstances of his alleged service in Vietnam, and did not respond. The JSRRC found that the ships history for the U.S.S. Saratoga and U.S.S. Kitty Hawk as provided by the Naval Historical Society did not include documentation of the ships going upriver (Brown Water) and/or docking in any port of Vietnam at any time, to include the period during the Veteran's tour of duty aboard the ships. At the October 2017 Travel Board hearing before the undersigned, the Veteran testified that he was exposed to herbicide agents in the course of his duties aboard the U.S.S Kitty Hawk, in the coastal waters of Vietnam, while handling equipment from Vietnam. It is not in dispute that the Veteran has type 2 diabetes mellitus and IHD, VA treatment records clearly show diagnoses of such disabilities, and that he is currently receiving treatment for them. However, neither disease is shown to have been manifested in service. The Veteran's STRs, including his September 1970 service separation examination report are silent for complaints, treatment, findings, or diagnosis relating to type 2 diabetes mellitus or IHD. Likewise, neither disability is shown to have been manifested to a compensable degree within a year following the Veteran's separation from service, nor is postservice continuity of manifestations of either disease shown. The Veteran's type 2 diabetes mellitus was initially diagnosed in 2003, approximately 33 years after separation from active duty service, and his heart disease was initially diagnosed in 1987, approximately 17 years following his separation. Accordingly, service connection for type 2 diabetes mellitus and IHD on the basis that they became manifest in service and persisted thereafter, or on a presumptive basis (as chronic diseases under 38 U.S.C. § 1112; 38 C.F.R. § 3.303(b)) is not warranted. The Veteran alleges that he was exposed to herbicide agents (resulting in his acquiring diabetes and IHD) in the course of his duties while serving on the U.S.S. Kitty Hawk in the coastal waters of Vietnam. Alternatively he claims that he actually set foot in Vietnam when his ship docked. As noted above, 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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); 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) (upholding VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption); see also Gray v. McDonald, 27 Vet. App. 313, 325 (2015). The Veteran has indicated that his service was in the coastal waters of Vietnam (which does not qualify as service in Vietnam). See Haas, supra; VAOPGCPREC 27-97. Notably, VA has promulgated a listing of Navy ships service on which may be conceded to have involved exposure to agents. See VBA Training Letter 10-06 (Sept. 2010); see also VA Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H, Part 2.h. The U.S.S Saratoga and USS Kitty Hawk are not included in that list (last updated June 15, 2016). The Veteran has also alternatively alleged that he set foot in Vietnam when his ship docked. As noted above, according to the ships history for the U.S.S. Saratoga and U.S.S. Kitty Hawk provided by the Naval Historical Society, there is no documentation of the ships going upriver (Brown Water) and/or docking in any port of Vietnam at any time, to include the period during the veteran's tour of duty aboard the ships. The Veteran was afforded the opportunity to provide additional information to enable verification of his allegations of service on land in Vietnam and exposure to herbicides, he did not respond. As he is not shown to have served in Vietnam, he may not be presumed to have been exposed to herbicide agents/Agent Orange during service, and his claims may not be considered under the presumptive provisions of 38 U.S.C. § 1116(a)(1), (f). The analysis turns to whether service connection for type 2 diabetes and IHD may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Veteran has not provided any evidence to show that his type 2 diabetes mellitus or IHD may somehow otherwise (than by virtue of exposure to herbicide agents) be related to his service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no indication in his postservice medical records that his diabetes mellitus or IHD, both diagnosed many years after service, are directly related to service in a manner (other than by virtue of alleged exposure to Agent Orange which is not factually shown). In view of the foregoing, the preponderance of the evidence is against the claims of service connection for type 2 diabetes mellitus and IHD. The benefit-of-the-doubt standard of proof does not apply; the appeals in these matters must be denied Glaucoma The Veteran seeks service connection for glaucoma, to include (as specifically alleged) as secondary to his type 2 diabetes mellitus. Initially, regarding the secondary service connection theory of entitlement to service connection for this disability that has been asserted (i.e., that it is secondary to diabetes mellitus), the Board notes that a threshold legal requirement for substantiating such claim (that the underlying disability to which the claimed disability is alleged to be secondary is service-connected) is not met; service connection for type 2 diabetes mellitus has been denied (including herein, above). See 38 C.F.R. § 3.310. Therefore, the secondary service connection theory of entitlement lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis of glaucoma. On September 1970 separation examination no pertinent abnormalities were noted. A December 2001 VA treatment record notes an assessment of glaucoma, initially diagnosed in 1997." The evidence shows a current diagnosis of glaucoma. However, the record does not show, and the Veteran does not allege, that such disability was manifested in, or is directly related to, his service. What remains for consideration is whether or not the glaucoma is otherwise shown to be related to the Veteran's service. The record does not include any competent evidence that suggests that glaucoma may be related to his service; and in the absence of such evidence, the record provides no basis for seeking a medical opinion regarding a nexus between the glaucoma and service. Notably, the Veteran has not alleged there is any evidence of a nexus between his glaucoma and his service other than on a secondary service connection basis. The preponderance of the evidence is against the claim; therefore, the appeal in this matter must be denied. ORDER Service connection for type 2 diabetes mellitus is denied. Service connection for IHD is denied. Service connection for glaucoma, to include as secondary to type 2 diabetes mellitus, is denied. REMAND The Board finds that further development is required to comply with VA's duty to assist the Veteran in the development of evidence to support his claim of service connection for hepatitis C. See 38 C.F.R. § 3.159 (2016). The Veteran contends that he contracted hepatitis C from an appendectomy in service. Records pertaining to any such surgery (including the hospital discharge summary) and evaluations and treatment preceding and subsequent to the surgery, are not in the record. The Veteran's September 1970 service separation examination report notes a surgical scar on his right lower quadrant of the abdomen (suggesting he may have undergone an appendectomy at some point; notably, such scar was not noted on service enlistment examination. As, based on the Veteran's allegations, records pertaining to surgery he underwent in service are pertinent (and perhaps critical) evidence in this matter, and because STRs are considered to be of record, exhaustive development to secure such records is necessary. Accordingly, the case is REMANDED for the following : 1. The AOJ should arrange for exhaustive development for the Veteran's complete STRs, to specifically include any records of the Veteran's appendectomy. If the records are unavailable because they do not exist, have been destroyed or are irretrievably lost, it must be so certified for the record, and the Veteran should be so notified. The scope of the search must be noted in the record. 2. The AOJ should then arrange for any further development suggested by the response to the development sought above (e.g., an infectious diseases or liver diseases examination of the Veteran if additional evidence received includes any probative evidence that hepatitis C may be related to the Veteran's service). If such examination is conducted, the Veteran's record should be reviewed by the examiner in conjunction with the examination. Following review of the record and examination/interview of the Veteran, the consulting provider should respond to the following: Please identify the likely etiology for the Veteran's hepatitis C? Specifically, is it at least as likely as not (a 50% or better probability) that it is related to an alleged risk factor in service (as identified by the Veteran in the record or on interview by the examiner)? The rationale for the opinion must specifically address the Veteran's allegation that he contracted hepatitis C via an appendectomy in service. The examiner must include rationale with all opinions. 3. The AOJ should then review the record, and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his agent opportunity to respond, and return the case to the Board. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs