Citation Nr: 1805350	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  16-46 888	)	DATE
	)
	) 

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents. 

2. Entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Dellarco, Associate Counsel 


INTRODUCTION

The Veteran severed on active duty in the U.S. Air Force from January 1959 to December 1970.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  In November 2017, the Veteran testified at a videoconference hearing before the undersigned.  A transcript of that hearing is of 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. § 7107(a)(2) (2012).

The issue of entitlement to service connection for sleep apnea syndrome 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 evidence of record does not establish that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active service. 

2. The Veteran's diabetes mellitus did not manifest to a compensable degree within one year of separation from service, and is not related to an in-service disease, injury, or event. 


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
	

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA Notice 

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim.  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(a) (2017).

The Board notes that a VA examination and opinion has not been provided regarding the Veteran's service connection claims for diabetes mellitus.  VA has a duty to provide an examination or opinion when the following elements are met: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  McLendon v. Nicholson, 20 Vet. App. 79, 82 (2006); see also 38 C.F.R. § 3.159(c)(4) (2017) (VA will obtain medical examination or opinion when necessary to decide claim).

Based on the evidence of record the second, third, and fourth elements are not met.  See McLendon, 20 Vet. App. at 83.  While the Veteran has a current disability of diabetes mellitus; as indicated below, the Veteran's contentions and evidence does not suggest that there was an in-service disease, injury, or event leading to the development of diabetes mellitus.  Thus, the second element is not satisfied.  As the second element is not satisfied, the third element is moot with regards to a direct relationship to an in-service disease, injury or event.  Finally, the fourth element is not satisfied, as there is sufficient evidence to decide the case.  See id.  As discussed below, there is no information of record reasonably indicating that diabetes mellitus may be associated with the Veteran's service, to include any contentions of exposure to herbicide agents in service.  Further, in the absence of any evidence or assertion of any relationship between diabetes mellitus and any additional aspect of his active service, the McLendon elements have not been satisfied.  See id.  Thus, the Board finds that an examination or opinion is not necessary to decide the claim for service connection for diabetes mellitus.  See 38 C.F.R. § 3.159(d) (2017).

Neither the Veteran nor his representative have advanced any additional procedural arguments in relation to VA's duty to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding absent extraordinary circumstances it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran).  Accordingly, the Board will proceed to the merits of the Veteran's appeal.

Factual Background

The Veteran contends that he developed diabetes mellitus due to exposure to herbicide agents, in particular Agent Orange.  Specifically, the Veteran contends that, when he was stationed at Osan Air Base, Korea from December 1961 to January 1963, he cleaned C-130 aircraft that were in Vietnam and thus he was exposed to herbicide residuals on those aircraft.  See Claim (March 2016).  He asserts that when stationed in Korea that there were planes coming in and out of Vietnam when he was on guard duty and that he was around these planes all the time.  Bd. Hrg. Tr. at 2-4 (Nov. 2017).  He further asserts that his living quarters were about 100 yards away from the runway and he cleaned right by the planes.  Bd. Hrg. Tr. at 2 (Nov. 2017).  Furthermore, the Veteran also contends that he went to the demilitarized zone in Korea for training; however, he provided no specific dates.  See Veteran's Correspondence (May 2016).

The Veteran also contends that in 1963, when he was stationed at Pope Air Force Base, North Carolina, he was a taxi driver, which required him to bring airmen to aircraft that were being dispatched to Vietnam.  See Veteran's Correspondence (May 2016); Bd. Hrg. Tr. at 2-4 (Nov. 2017).  He indicated that, in North Carolina and South Carolina, the planes were going back and forth to Vietnam, and even though he was a small arms instructor, he was a dedicated taxi driver and he was around these planes all the time.  Id. at 4.  The Veteran indicated that taxiing involved getting airmen to the C-130 aircraft so they could go to Vietnam.  Id. at 4; see also See Veteran's Correspondence (May 2016) (indicating these were C-130 aircraft that were going back and forth from Vietnam).  The Veteran also asserts that he spent time at "Seymore Johnson" in South Carolina, where he was also around planes going back and forth to Vietnam.  See Veteran's Correspondence (May 2016).

Furthermore, the Veteran asserts that three different doctors told him that he had all the "symptoms" or "makings" of "Agent Orange" and that when he asked that this be put in his record he was told that they were given strict orders not to write anything about Agent Orange.  See Veteran's Correspondence (May 2016); Bd. Hrg. Tr. at 3 (Nov. 2017).  The Veteran further asserts that one doctor told him that he could have gotten Agent Orange from the planes.  See Veteran's Correspondence (May 2016).

Military personnel records provide that the Veteran was stationed at Osan Air Base, Korea from December 1961 to March 1963 with the military occupational specialty of small arms instructor.  See Airman Military Record at §19 (Chronological Listing of Service).  Thereafter, the Veteran was stationed at Pope Air Force Base, North Carolina from February 1963 to April 1966, as a small arms instructor from February 1963 to March 1965 and then as a gunsmith starting in November 1965.  Id.  Additionally, the Veteran was on a TDY Trip to Osan, Korea from April 1965 to May 1965.  See id. at § 6 (Foreign Service Summary).  There is no mention of the Veteran ever being stationed in South Carolina, or at Seymour Johnson Air Force Base, North Carolina [the air base that the Board believes that Veteran was referring to in his May 2016 correspondence]. 

Service treatment records indicate that there were no complaint of diabetes or diabetic symptoms during service, and upon separation the examiner stated: "No other significant illness or injury during current term of service and no aggravation of pre-existing conditions." See Service Trmt. Records.  Moreover, urinalysis conducted as part of routine medical examinations was negative for glucose.  See December 1970 Separation Medical Examination; February 1969 Periodic Examination; March 1961 Initial Flying Class III Examination.

Based on the medical evidence of record, the Veteran was first diagnosed with diabetes mellitus in October 2011.  See VA Treatment Records from Alamogordo CBOC.  

Law - Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017).  To establish a right to compensation for a direct service connection disability, the Veteran must show: (1) the existence of a current 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)).  

Service connection may be presumed for certain chronic diseases, including diabetes mellitus, which develop to a compensable degree of 10-percent within one year after discharge from service, even where there is no evidence of such disease during the veteran's period of service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  However, such presumption is rebuttable by probative evidence to the contrary.  38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R.§§ 3.307, 3.309(a) (2017).

Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted.  That does not mean that any manifestations in service will permit service connection.  To show a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b) (2017).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection.  38 C.F.R. § 3.303(b) (2017).  Continuity of symptoms 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 symptoms applies only to those conditions explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

VA regulations further provide a presumption of service connection for certain diseases that are associated with exposure to herbicide agents during active service.  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), 3.309 (e).
 
Herbicide agent exposure is presumed for a veteran who during active duty served in the Republic of Vietnam from January 9, 1962 to May 7, 1975; or in a unit that the Department of Defense has determined operated in or near the Korean demilitarized zone from August 1, 1968 to August 31, 1971.  Id. at § 3.307(a)(6)(iii) & (iv).  

In addition, herbicide agent exposure is presumed for a veteran who performed service in the Air Force or Air Force Reserve under circumstances in which that individual regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.  38 C.F.R. § 3.307(a)(6)(v)(2017). Under this presumption, "regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft.  38 C.F.R. § 3.307(a)(6)(v) (2017).  

Notwithstanding the foregoing presumptive provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Analysis

Lay testimony is competent to establish facts that can be observed by the use of a person's five senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As such, the Veteran is competent to report the events that occurred in service, including the locations of such service and his duties during service.  However, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

The evidence does not warrant a presumption under 38 C.F.R. § 3.307 because the Veteran does not have qualifying service.  Military personnel records demonstrate that the Veteran was not stationed in the Republic of Vietnam, nor was he stationed in Korea from August 1968 to August 1971, irrespective of whether he was at the demilitarized zone.  Therefore, it cannot be presumed that the Veteran was exposed to herbicide agents based on geographic location and dates of his foreign service.  

The evidence also does not support that the Veteran came into contact with contaminated C-123 aircraft, whether that be at Osan Air Base, Korea or Pope Air Force Base, North Carolina.  First, the VA does not recognize potential contact with contaminated C-123 aircraft at either of these bases between the dates of the Veteran's service at those bases (1961 to 1963).  Second, during the timeframe which the Veteran contends that he was potentially exposed to herbicide agents (1961 to 1963), the Veteran was a small arms instructor.  Irrespective of his taxiing duties, by virtue of his military occupation during this timeframe there is no indication that he repeatedly operated, maintained, or served onboard any type of aircraft.  Third, the Veteran specifically contends that he was around C-130 aircraft; however, the presumption, discussed above, is limited to C-123 aircraft alone.  

The Veteran has provided no further details about his service and contact with aircraft, apart from those contentions already addressed regarding C-130 aircraft.  The Board does not find that repeated operation, maintenance, or service onboard a C-123 aircraft to be consistent with either the places, types, and circumstances of the Veteran's service.  See 38 U.S.C. § 1154 (2012).  To the contrary, this claim appears to have originated from the conjecture of an unqualified lay individual, a friend who contacted the Veteran about unsubstantiated use of Agent Orange in Korea in 1962.  See June 2013 VA Psychology Note ("I got a call from a friend in Tennessee.  He now said Korea, 1962, might be a part of Agent Orange.").  Accordingly, presumptive exposure to herbicide agents, including Agent Orange, is not established.  See 38 C.F.R. § 3.307(a)(6)(2017).  Neither, is the evidence sufficient to establish actual exposure to herbicides in this regard. 

As to the Veteran's reports that doctors told him that he all the "symptoms" or "makings" of Agent Orange exposure and that one doctor stated that he could have been exposed to Agent Orange from the planes, the Veteran is competent to report what doctors told him; however, the lack of corroborating medical evidence significantly reduces that probative value of these assertions, particularly in light of the places, types, and circumstances of his service as explained above.  See Pond v. West, 12 Vet. App. 341, 345 (1999) (Board may consider personal interest in favorable evidence); but see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994).
As to direct service connection, the Veteran's service treatment records (STRS) do not contain any abnormal medical test reflecting problems with blood sugar or other diabetic symptoms.  In addition, there is no evidence of record that diabetic symptoms manifested within a year of service; to the contrary, the Veteran was first diagnosed with diabetes mellitus well after he was discharged from service, in October 2011.  Furthermore, there is no medical opinion evidence relating the Veteran's diabetes mellitus to any circumstance of his active service.  

In summary, the Veteran's STRs do not show or diabetes in-service or within a year thereafter.  Treatment records do not document this disability until many years after the Veteran's service. No competent opinion links the Veteran's diabetes to his service.  The Veteran is not presumed to have been exposed to herbicides and there is insufficient evidence of direct exposure to herbicides.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes, and the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for diabetes mellitus is denied.


REMAND

The Veteran alleges that he developed sleep apnea in service as evidenced by his testimony that he snored loudly while stationed in Korea and was tired all the time.  See Bd. Hrg. Tr. at 3-4 (Nov. 2017).  He additionally indicated that these symptoms have continued to present.  Id.  The record suggests that the Veteran has a current diagnosis of sleep apnea.  See, e.g., February 2013 VA Medical Records Addendum for Pulmonary, Critical Care & Sleep Medicine by Dr. O.H.  Accordingly, the Board finds that a VA examination for an opinion as to the etiology of the Veteran's sleep apnea is warranted.  See McLendon, 20 Vet. App. 79.  
During the hearing, the Veteran testified that he was diagnosed with sleep apnea in 2009 by a private provider.  Bd. Hrg. Tr.at 3 (Nov. 2017).  Consequently, the RO should attempt obtain these private records and associate them with the file.  See 38 C.F.R. § 3.159 (2017).  

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. Contact the Veteran to identify private provider(s) from whom he received treatment for his sleep apnea.  If necessary, obtain a signed release to obtain and access these records.  Associate any obtained records with the claims file.

2. After completion of the above, obtain a VA examination by an appropriately qualified examiner to determine the nature and etiology of the Veteran's sleep apnea.  The claim file should be provided to the examiner and he or she must indicate review of this in the examination report.  After a review of the claim file, the examiner should respond to the following:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea had its onset during active duty service, or is otherwise etiologically related to service?

In providing the above opinion, the VA examiner is asked to address the Veteran's lay statements that he snored loudly during service and his complaints of chronic fatigue. 

If the requested opinion cannot be rendered without resorting to speculation, the examiner must be clear that such an opinion is not procurable based on a lack of knowledge among the "medical community at large" and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner.  
All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved should be provided. 

3. After ensuring compliance with the above, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned to the Board.

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).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).


_________________________________________________
Lesley A. Rein 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).

Department of Veterans Affairs