Citation Nr: 1805112 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-29 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 hypertension, to include as due to exposure to herbicide agents and as secondary to type 2 diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicide agents and as secondary to type 2 diabetes mellitus. 4. Entitlement to increases in the (20 percent prior to October 4, 2016, and 40 percent from that date) staged ratings assigned for a right knee disability. 5. Entitlement to increases in the (20 percent prior to October 4, 2016, and 40 percent from that date) staged ratings assigned for a left knee disability. 6. Entitlement to a compensable rating for tinea, right popliteal fossa (a right leg skin disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1971 to February 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Cleveland, Ohio Department of Veteran Affairs (VA) Regional Office (RO) that, in pertinent part, denied his claims seeking service connection, and continued 20 percent ratings, each, for his right and left knee disabilities and a 0 percent rating for his right leg skin disability. In August 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. In November 2015, these matters were remanded for further development. Interim (August 2016 and September 2017) rating decisions increased the ratings for the right and left knee disabilities, respectively to 40 percent, each, effective October 4, 2016. The matters of the ratings for right and left knee disabilities and for a right leg skin disability are 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, to include its inland waterways, during the Vietnam era, and is not shown to have otherwise been exposed to herbicide agents in service. 2. Type 2 diabetes mellitus was not manifested in service or for many years thereafter, and is not shown to be etiologically related to the Veteran's service. 3. Hypertension was not manifested in service or in the first postservice year, and is not shown to be etiologically related to the Veteran's service. 4. Peripheral neuropathy was not manifested in service or for many years thereafter, and is not shown to be etiologically related to the Veteran's service. 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 hypertension, to include as secondary to 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, 3.310 (2017). 3. Service connection for peripheral neuropathy, to including as secondary to 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, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter in March 2009. 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 August 2015 hearing, the undersigned identified the issues on appeal, explained what evidence is needed to substantiate the claims, and identified development to be completed. After the hearing, the case was remanded for development, to include outstanding evidence as discussed in greater length below). 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 has identified. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, 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. Thus, 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 a claim of secondary service connection, there must be evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already 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, hypertension and organic disease of the nervous system) 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 early onset peripheral neuropathy, but not hypertension) shall be presumed to be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, provided 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). "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 presumption of exposure to herbicide agents. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 27-97 (mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam does not establish 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 herbicide agents 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. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). [VA has issued several notices based upon extensive scientific research indicating that a presumption of service connection based on exposure to herbicide agents used in Vietnam should not be extended to certain specific disorders,. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996).] 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 bases 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. 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 The Veteran's service treatment records (STRs) are silent for complaints, diagnosis, and treatment for type 2 diabetes mellitus. On February 1973 service separation examination, no pertinent abnormalities were noted and the endocrine system was normal. A September 2007 VA treatment record notes that the Veteran had a diagnosis of type 2 diabetes mellitus and was on oral medication to control the diabetes. An April 2014 VA treatment record notes the Veteran reported a 6 year history of diabetes. At the August 2015 videoconference hearing before the undersigned the Veteran testified that he was exposed to Agent Orange in the course of his duties aboard the U.S.S. Shasta in the coastal waters of Vietnam, resupplying other ships. In November 2015, the Board remanded the claim for additional development, to include for verification of the Veteran's reports of exposure to herbicide agents. In response to an inquiry by the AOJ, in March 2012 the National Personnel Records Center confirmed that there was no evidence to establish that the Veteran had service in Vietnam or in locations exposed to herbicides agents. July 2016 AOJ correspondence to the Veteran sought identifying information (dates, locations, etc.) regarding his alleged exposure to herbicide agents while serving aboard the U.S.S Shasta; he did not respond (and further development to verify his allegations of exposure to herbicide agents was not possible0. It is not in dispute that the Veteran has type 2 diabetes mellitus, VA treatment records clearly show that such disease has been diagnosed, and that he is currently receiving medical care for it. However, the evidence does not show that type 2 diabetes mellitus was manifested in service. The Veteran's STRs, including his February 1973 service separation examination report are silent for complaints, treatment, findings, or diagnosis related to type 2 diabetes mellitus. Likewise, type 2 diabetes mellitus is not shown to have been manifested to a compensable degree within a year following the Veteran's separation from service, and postservice continuity of manifestations of the disease is not shown. The Veteran reported that his type 2 diabetes mellitus was initially diagnosed in 2007, approximately 34 after separation from active duty service. Accordingly, service connection for type 2 diabetes mellitus on the basis that it became manifest in service and persisted thereafter, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.303(b) is not warranted. The Veteran does not allege that he set foot in Vietnam. He alleges that he was exposed to herbicide agents (resulting in his acquiring diabetes) in the course of his duties while serving on the U.S.S Shasta in the coastal waters of Vietnam. 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 specifically indicated that his service was "blue water" service 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 Shasta is not included in that list (last updated June 15, 2016). While the Veteran was afforded the opportunity to provide additionally information to verify his alleged exposure to herbicides in another manner, he did not respond. Accordingly, he is not shown to have otherwise been exposed to herbicide agents in service. As he is not shown to have been exposed to herbicide agents/Agent Orange during service, his claims may not be considered under the presumptive provisions of 38 U.S.C. § 1116. The analysis turns to whether service connection for type 2 diabetes 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 may somehow otherwise (than by virtue of alleged 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, diagnosed more than three decades after service, is directly related to service in a manner (other than by virtue of alleged exposure to Agent Orange). The decades-long interval between service and the earliest postservice clinical documentation of a diagnosis of type 2 diabetes mellitus is of itself a factor for consideration against a finding of service connection for that disease. In view of the foregoing, the preponderance of the evidence is against the s claim of service connection for type 2 diabetes mellitus. The benefit-of-the-doubt standard of proof does not apply; the appeal in this matter must be denied Hypertension and peripheral neuropathy The Veteran seeks service connection for hypertension and peripheral neuropathy, 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 these disabilities that has been asserted (i.e., that they are secondary to diabetes mellitus), the Board notes that a threshold legal requirement for substantiating such claims (that the underlying disability to which the claimed disabilities are 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, that 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 diagnoses of peripheral neuropathy or hypertension. On February 1973 separation examination no pertinent abnormalities were noted. In a September 2007 VA treatment record, the Veteran was noted to have hypertension, not well controlled. A December 2010 VA treatment record notes an assessment of diabetes with "neuropathies in all extremities." The evidence shows current diagnoses of hypertension and peripheral neuropathy. However, the record does not show, and the Veteran does not allege, that such disabilities were manifested in, or are directly related to, his service (to include on a presumptive basis as chronic diseases under 38 U.S.C. § 1112; 38 C.F.R. § 3.309 (a)). What remains for consideration is whether or not the claimed disabilities are otherwise shown to be related to the Veteran's service. The record does not include any competent evidence that suggests that either of these disabilities 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 claimed disabilities and service. Notably, the Veteran has not presented any evidence of a nexus between these claimed disabilities and his service. The preponderance of the evidence is against these claims; therefore, the appeals in these matters must be denied. ORDER Service connection for type 2 diabetes mellitus is denied. Service connection for hypertension, to include as secondary to type 2 diabetes mellitus is denied. Service connection for peripheral neuropathy, to include as secondary to type 2 diabetes mellitus is denied. REMAND Ratings for right and left knee disabilities While findings on VA examinations appear adequate to evaluate the Veteran's right and left knee disabilities on the basis of limitation of motion and subluxation or lateral instability, the evidence of record is insufficient to determine whether or not the Veteran's complaints of popping, locking and grinding warrant a separate compensable rating under Code 5258 (for dislocated semilunar cartilage) or Code 5259 (for symptomatic removal of semilunar cartilage). See Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704. [Notably, his diagnoses have included left knee medial meniscus tear and right knee meniscal degenerative changes.] Consequently, a remand for further development of medical evidence is necessary. Right leg skin disability The Veteran's service-connected skin disability for which an increased rating is sought is tinea, "right popliteal fossa" (i.e., on the back of the knee), and such characterization limits the scope of the service connected skin disability to that anatomical area. His STRs show that during service he was seen for rashes on his right elbow and right forearm as well as at the right popliteal fossa. The VA skin examinations of record have focused primarily on skin complaints involving the Veteran's elbows, and apparently the Veteran is of the belief that the scope of his service connected skin disability extends beyond the anatomical area identified in the characterization of the disability. The questions presented are first medical, then adjudicative in nature. The medical questions must be resolved prior to any adjudicative determination. Accordingly, the case is REMANDED for the following: 1. Regarding the ratings for the Veteran's knees, the AOJ should update the Veteran's record by associating any outstanding records of VA treatment he has knees, and then arrange for the Veteran's record to be forwarded to an orthopedist for review and an addendum medical advisory opinion. [If further examination of the Veteran is deemed necessary for the opinion sought, it should be arranged.] The examiner must be provided with a copy of the scheduler criteria for rating knee disabilities, to specifically include Codes 5258 and 5259 (as well as the decision in Lyles v. Shulkin). Based on a review of the record (and examination of the Veteran, if such is found necessary) the consulting provider should respond to the following: Does the Veteran have semilunar cartilage pathology of either or both knees (or residuals of cartilage removal) that produces symptoms distinct from those in the criteria for rating based on limitations of motion, subluxation, or instability (such as popping, locking and grinding)? If so, please identify the pathology, the separate and distinct symptoms, when they are first shown in the record, and their severity and related functional limitations. Please include rationale with all opinions, citing to supporting factual data. 2. The AOJ should also arrange a dermatology examination of the Veteran to ascertain the scope and severity of his service-connected skin disability (now characterized as tinea, right popliteal fossa. The Veteran's record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his record, the examiner should respond to the following: (a) Please clarify the nature and scope of the Veteran's service connected tinea. Specifically, is it (i) a disability that is limited to a localized anatomical area (as it is now characterized), or (ii) an entity that expands to encompass other anatomical areas (such as the elbows/arms) where findings in service were noted? (b) Is the tinea (complaints on the elbows/arms noted in service) an acute process that resolves with treatment, a migratory process that appears in different areas at different times, or a recurring (reactivating) process that is may either be limited in scope or may have an expanding scope. (c) Please describe in detail the current scope and severity of the service-connected entity, providing estimates of the percentages of total body and any exposed areas involved (specifically indicating whether the involvement extends beyond the right popliteal fossa), and any treatment being provided. Please include rationale with all opinions. 3. The AOJ should then review the record and readjudicate the remaining claims (if warranted by medical evidence received in response to the development sought above, to include a recharacterization of the service connected skin disability entity (to reflect the full extent of the disability). If any remain denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant 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 remanded by the Board for additional development 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