Citation Nr: 18140044 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-18 002 DATE: October 2, 2018 ORDER Entitlement to service connection for cervical spine disability is denied. REMANDED Entitlement to service connection for diabetes mellitus type II (diabetes) is remanded. INTRODUCTION The Veteran served on active duty in the Air Force from May 1974 to May 1978. In Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009), the Court held that a claim is not necessarily limited in scope to a single or particular diagnosis, and should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Here, the Veteran originally claimed and was denied entitlement to service connection for diabetes mellitus type I as due to Agent Orange exposure in a September 2014 rating decision. However, the medical evidence shows that the Veteran is diagnosed with diabetes mellitus type II, which is a disease presumed service connected in veterans exposed to Agent Orange. Given that evidence, and in consideration of Clemons, the Board construes the Veteran’s claim for service connection for diabetes mellitus type I as a claim for service connection for diabetes mellitus type II. FINDING OF FACT Cervical spine arthritis did not manifest in service or within the one-year presumptive period, and cervical spine disability is not related to in-service neck stiffness. CONCLUSION OF LAW The criteria for entitlement to service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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(d). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, certain chronic diseases, including degenerative joint disease, which is a synonym for arthritis, Greyzck v. West, 12 Vet. App. 288, 291 (1999), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In the Veteran’s August 2014 VA examination, he was diagnosed with degenerative disc disease/degenerative joint disease of the cervical spine. Cervical spondylosis is also noted in a February 2014 progress note stemming from a 2000 MRI. This establishes a current disability. Similarly, a complaint of a stiff neck dated January 6, 1978 in the Veteran’s service treatment records establishes an in-service disease or injury. Thus, the dispositive issue is whether the Veteran’s current cervical spine disability is related to his in-service neck stiffness. In this regard, there is a negative medical opinion provided by the August 2014 VA examiner, indicating his diagnosed cervical spine disability is less likely than not related to his in-service neck stiffness noted in his service treatment records. The examiner noted in the examination that Veteran had only reported his neck bothered him for a year and half prior to the examination. The VA examiner concluded that as a result, the Veteran’s current cervical spine disability is not related to his military service, but it is more likely a recent occurrence which is quite common in the Veteran’s age group in the general population. As the VA examiner explained the reasons for his conclusions based on an accurate characterized of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The record does not contain any other evidence, medical or lay, weighing in favor of the Veteran’s claim. There is no evidence or allegation that arthritis manifested in service or within the one-year presumptive period. There are no references to the neck in the service treatment records other than the one noted above, and the December 1977 separation examination report indicated that the spine was normal and complaints of low back, but not neck pain were noted. The above analysis reflects that there is one probative medical opinion weighing against service connection for the Veteran’s cervical spine disability and no competent evidence in favor. The preponderance of the evidence is therefore against the claim for entitlement to service connection for this disability. The benefit of the doubt doctrine is thus not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran contends that he was exposed to Agent Orange while serving at Clark Air Force Base in the Philippines during Operation Frequent Wind and Operation Baby Lift. Specifically, the Veteran states that he was a C-130 electrician who was exposed to Agent Orange while coming into direct contact with aircrafts, military equipment and refugees being evacuated from Vietnam in April 1975, all of which/whom were contaminated with Vietnamese soil. In a March 2014 statement, the Veteran noted he supported twenty C-130 and C-141 missions every day, which averaged 180 people per mission. He cleaned and removed panels, and did electrical repairs to the aircrafts that were contaminated. Service connection may be established on a presumptive basis for diabetes if a veteran was exposed to an herbicide agent such as Agent Orange during service. See 38 U.S.C. § 1116(a)(1), (2)(H); 38 C.F.R. §§ 3.307, 3.309. 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. See 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has determined that the regulatory definition, which permits certain personnel not actually stationed within the borders of Vietnam to be considered to have served in that Republic, requires that an individual actually have been present within the boundaries of the country. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In this case, the Board finds the Veteran’s statements that he came into close contact with refugees and equipment inbound from Vietnam that might have been exposed to Agent Orange to be credible. However, this type of exposure to Agent Orange is not the type contemplated by the regulations. Given that there is no evidence addressing whether the Veteran’s exposure to Agent Orange through close contact with refugees and equipment at least at least as likely as not resulted in his diabetes, the Board finds that a remand is necessary to obtain a VA opinion from an appropriate physician discussing this possibility. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: Refer the claims file to an appropriate specialist physician for a medical opinion to address the etiology of the Veteran’s diabetes, to include as related to Agent Orange exposure. The entire claims file must be provided to and reviewed by the physician. After reviewing the record, the physician should address whether the Veteran’s diabetes is it at least as likely as not (i.e., a 50 percent probability or greater) related to his possible exposure to Agent Orange through close contact with refugees and equipment exposed to Agent Orange; or otherwise related to his military service. The physician must address the Veteran’s statements that he came into close contact with Vietnamese refugees and aircraft equipment inbound from Vietnam, and whether this amounts to sufficient exposure to Agent Orange to cause diabetes. The physician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel