Citation Nr: 18153824 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 07-19 944 DATE: November 28, 2018 ORDER Entitlement to service connection for diabetes mellitus, claimed as due to in-service herbicide exposure, is denied. Entitlement to service connection for coronary artery disease, including as due to in-service herbicide exposure and claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for plantar fasciitis, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for Dupuytren's Contracture, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for cataracts, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for chronic infections, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for sleep apnea, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for a respiratory disorder, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for poor circulation, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for hypertension, including as secondary to diabetes mellitus, is denied. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for a skin disorder, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for Bell's Palsy, claimed as secondary to diabetes mellitus, is denied. Entitlement to service connection for peripheral neuropathy, upper and lower extremities, claimed as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran served onboard a ship that transported herbicides recognized by VA to presumptively cause diabetes mellitus and coronary artery disease. 2. Diabetes mellitus and hypertension were not noted in service or within the first year following the Veteran’s active service. 3. The Veteran’s diabetes mellitus, coronary artery disease, plantar fasciitis, Dupuytren's Contracture, cataracts, chronic infections, sleep apnea, respiratory disorder, poor circulation, hypertension, erectile dysfunction, skin disorder, Bell's Palsy, and peripheral neuropathy, upper and lower extremities, were not present in service or until many years after service, and are not causally related to or otherwise aggravated by any service-connected disability. CONCLUSIONS OF LAW 4. The criteria for service connection for diabetes mellitus, type II, claimed as due to in-service herbicide exposure, are not met on either a direct or presumptive basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for coronary artery disease, including on a direct, secondary or presumptive basis, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 6. The criteria for service connection for plantar fasciitis, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 7. The criteria for service connection for Dupuytren's Contracture, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 8. The criteria for service connection for cataracts, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 9. The criteria for service connection for chronic infections, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 10. The criteria for service connection for sleep apnea, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 11. The criteria for service connection for a respiratory disorder, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 12. The criteria for service connection for poor circulation, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 13. The criteria for service connection for hypertension, including on a presumptive basis and claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2017). 14. The criteria for service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 15. The criteria for service connection for a skin disorder, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 16. The criteria for service connection for Bell's Palsy, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 17. The criteria for service connection for peripheral neuropathy, upper and lower extremities, claimed as secondary to diabetes mellitus, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matters on appeal arise from an April 2006 rating decision. The Board, in May 2010, denied the claims, after which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In April 2011, the Court issued an Order granting the parties’ Joint Motion for Partial Remand (Joint Motion) and thereby vacating the Board’s May 2010 decision. The Board again denied the Veteran’s claims in February 2012, after which the Veteran again appealed to the Court. In an August 2013 Memorandum Decision, the Court vacated the Board’s February 2012 decision and remanded the case for compliance with the terms of the Memorandum Decision. The Board then issued a decision denying the claims in August 2014, after which the Veteran again appealed to the Court. The Court then issued a February 2016 Memorandum Decision vacating the Board’s August 2014 decision and remanding for additional development and readjudication. The Board remanded the matters in November 2016 and they are now again before the Board for adjudication. The Board observes that during the pendency of this longstanding claim, the Veteran has claimed service connection for his diabetes on the basis that it is due to in-service exposure to herbicides. He has at times claimed both exposure by virtue of where his ship, the U.S.S. Arlington, sailed while he was onboard during the Vietnam Era, as well as claimed that he was directly exposed to herbicides while onboard the ship, which he contends carried barrels of herbicides from port to port. The Court’s November 2016 Memorandum Decision explicitly notes that the Veteran abandoned the theory of presumptive exposure to herbicides while onboard the U.S.S. Arlington by virtue of where it sailed. Thus, the decision below is limited in its discussion of exposure to herbicides to the contention of direct exposure. Another matter of initial consideration prior to moving on to the merits of this appeal is compliance with the Board’s prior remand. Following the Court’s 2016 Memorandum Decision, the Board remanded the matters on appeal in November 2016 for additional evidentiary development. The Board required the RO to do further development with regard to herbicide exposure with the Department of Defense and with the Naval Sea Systems Command. Following the remand, the RO indeed contacted both facilities. While no additional new evidence was obtained, the Board finds the RO substantially complied with the remand directives. There is no suggestion in the record that additional remand for further searches would yield different results. The Board recognizes the Veteran’s representative’s argument that the compliance was not adequate because the only evidence received was duplicative of what is already in the record. However, the Board cannot demand production of evidence that appears to not exist. Thus, this matter is not being remanded for additional attempts and the Board finds substantial compliance with the remand directives. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for certain chronic diseases, such as diabetes mellitus and hypertension, which are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Additionally, under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, interest, bias, self-interest, desire for monetary gain, and the veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed in 38 C.F.R. § 3.309(e), including type II diabetes mellitus and coronary artery disease, shall be service-connected if the requirements of 38 U.S.C. § 1116, 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, 38 C.F.R. § 3.307(d) are also satisfied. As noted above, the Veteran has abandoned the claim that he should be presumed to have been exposed to herbicides during this active service. However, even if a veteran is not found entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Similarly, if it can be shown that the Veteran was actually exposed to an herbicide agent during his active service, the presumptive service connection under 38 C.F.R. § 3.307 and § 3.309 would be warranted for the diabetes and coronary artery disease claims. At the outset, the Board again notes that presumptive service connection is warranted for diabetes mellitus and for coronary artery disease if it can be shown that the Veteran was exposed to an herbicide agent in service, and presumptive service connection is warranted for diabetes mellitus and hypertension if it can be shown that either manifested to a compensable degree within one year of the Veteran’s separation from active service. The Board recognizes the presence of each of these disabilities as they are shown in both his VA clinical records and his records from the Social Security Administration (SSA). Accordingly, the first element of service connection is met with regard to these claims. The Veteran does not contend that he had heart disease, hypertension, or diabetes mellitus or any diabetes related problems while on active service. Rather, the Veteran contends that his diabetes is due to actual herbicide agent exposure while serving aboard the U.S.S. Arlington in the Vietnam Era. The establishment of this fact is indeed the crux of this case and is the subject of the March 2011 Joint Motion for Partial Remand and the August 2013 and February 2016 Memorandum Decisions. The Veteran testified that his ship, the U.S.S. Arlington, anchored in Da Nang harbor twice, as well as in Cam Ranh Bay. The Veteran also contends that barrels of Agent Orange were transported aboard the U.S.S. Arlington, and that he had to help clean up after the toxic liquid leaked/spilled onto the deck. The Veteran has submitted numerous articles and reports, including copies of deck logs and history reports for the U.S.S. Arlington, medical reports and studies regarding Agent Orange exposure from various sources, and statements from several former crewmembers of the U.S.S. Arlington. The Board has reviewed all of this evidence and is considering it in the adjudication of these claims. In a June 2000 statement, the Veteran reported his ship received green and gray barrels with orange stripes with herbicide or chemicals inside while in Subic Bay, Philippines, and transported and offloaded them in Cam Ranh Bay. The Veteran, in this statement, confirmed and provided information showing the ship’s manifests having been destroyed. Nonetheless, the Board recognizes the Veteran’s personal observation that barrels with an orange stripe were loaded onto the U.S.S. Arlington. The Veteran also submitted several articles noting the expression “Agent Orange” derived from the containers used to transport an herbicide agent having an orange stripe. The Joint Motion in this case also references this fact as found on VA’s own website. In a July 2005 statement, the Veteran again reported the presence of the barrels of chemicals onboard the ship and also recalled helping a friend clean up a spill out of one of the barrels after it broke open. With this statement, the Veteran submitted statements of fellow sailors onboard the U.S.S. Arlington addressing the presence of barrels of chemicals onboard the U.S.S. Arlington. R.S. indicated there were two types of barrels, gray with an orange stripe and green with yellow writing. He reported a liquid inside that smelled like herbicide when they broke open or leaked. R.S. also recalled seeing what he referred to as an Agent Orange cloud and smelling herbicides in the air and seeing an orange, sticky residue in coffee cups and cans left sitting outside. In June 2007, A.L., another shipmate of the Veteran onboard the U.S.S. Arlington, submitted a statement concerning his observation of barrels and the smell of herbicides in the air. A July 2009 statement from S.B. described barrels with an orange strip. Moreover, as noted in the March 2011 Joint Motion, VA’s website confirms that Agent Orange came in barrels that had orange stripes on them. The Board finds the Veteran and the people providing the various lay statements are competent to report on what they saw with their eyes and that they smelled what they considered to be a chemical. The Board also recognizes that VA may indeed have confirmed that Agent Orange was carried in barrels with orange stripes on them. However, the articles provided by the Veteran and the VA website referenced in the Joint Motion do not provide information related to the barrels carried onboard the U.S.S. Arlington while the Veteran was on board or what was within those barrels. Neither the Veteran, nor the fellow sailors on board the U.S.S. Arlington have indicated that the type of chemical carried in the barrels they saw was affirmatively identified as Agent Orange. While Agent Orange may have been carried in similarly marked containers, there is no indication that this was the only type of chemical carried in those containers. While the Veteran and other sailors are competent to report what they saw and describe what they smelled, they do not have the scientific expertise to be competent to identify the specific type of chemical they smelled at that time was Agent Orange. The articles and website referenced identify how Agent Orange derived its name. It does not follow that only herbicide agents were transported in barrels so marked. Therefore, while the statements submitted may not lack credibility, those making the statements are not competent to establish that what was contained in the barrels they described was an herbicide agent (Agent Orange), and the other evidence of record does not support such a finding. The remaining evidence related to the potential direct exposure to herbicides is a culmination of information put together by the Veteran and other lay people, with the same competence level as those providing the previously noted statements. In addition, the record includes a May 2009 U.S. Army and Joint Services Records Research Center (JSRRC) memorandum that stated after review of ships histories, deck logs, official military documents, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicides during the Vietnam era, there was no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam, used, stored, tested, or transported tactical herbicides. While this report does not address the particular barrels observed by the Veteran and his shipmates, it does not support the notion that the Arlington carried tactical herbicides/herbicide agents. Based upon the foregoing, the record does not support a finding that the Veteran was directly exposed to herbicides while on board the U.S.S. Arlington. While a certain type of barrel may have been seen on the ship and a certain type of odor was smelled, the evidence does not establish what was carried in the barrels, or identify the source of the smell, even given the type of barrel Agent Orange reportedly was carried in as shown on the VA website. Thus, the Board finds the Veteran was not actually exposed to Agent Orange while on board the U.S.S. Arlington, and claim for service connection for diabetes and coronary artery disease on the basis of herbicide exposure cannot be granted under 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e). The Veteran has also submitted several Board decisions issued in different Veteran’s cases in an effort to support his claim. Prior Board decisions are binding only on the specific case decided, and the decisions cited have no precedential value in the instant case. 38 C.F.R. § 20.1303. Notwithstanding the foregoing presumptive provisions, service connection for a disability claimed may be established by showing that the disability was in fact causally linked to the Veteran’s active service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Service treatment records do not show evidence of diabetes mellitus or heart disease, or any of the other claimed disabilities, in service, including on February 1970 service separation examination. As to the chronic disabilities subject to service connection if noted in service and manifest to a compensable degree within one year of separation, the Veteran has testified that he was first diagnosed with diabetes in 1995 and the evidence also initially shows the presence of hypertension many years after the Veteran’s active service. As there is no evidence or allegation that either disorder became manifest to a compensable degree within the first year after discharge from service, consideration of service connection under 38 C.F.R. §§ 3.307 and 3.309 is also not applicable for diabetes or hypertension. Moreover, no medical professional has ever suggested that the Veteran’s diabetes or any of the other claimed disabilities was directly related to his military service, and neither the Veteran nor his attorney has presented, identified, or even alluded to the existence of any such medical evidence or opinion. Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted for any disability claimed on a direct basis. Hickson v. West, 12 Vet. App. 247, 253 (1999). Moreover, the Veteran claims his respiratory disorder, coronary artery disease, hypertension, sleep apnea, chronic infections, poor circulation, Bell’s palsy, Dupuytren’s contractures of the right and left hand, peripheral neuropathy of the upper and lower extremities, cataracts, erectile dysfunction, skin disorder, and plantar fasciitis, are all due to or a consequence of his diabetes mellitus. The provisions of 38 C.F.R. § 3.310 only apply to service connection for secondary disabilities caused by a service-connected disability. In this case, service connection for diabetes mellitus is being denied. Accordingly, there is no legal basis of entitlement to secondary service connection, because the Veteran has not been granted service connection for the disorder that he alleges caused the claimed disabilities. Therefore, with respect to the claims of secondary service connection, application of the law to the facts is dispositive, and the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Finally, the Board has considered whether a VA examination is required with regard to the claims on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The duty to obtain a medical examination is not triggered in this case, because the evidence of record does not show an in-service incurrence of any of the disabilities claimed. Moreover, the Veteran has limited the matter remaining on appeal to service connection based upon direct exposure to herbicides and service connection on a secondary basis. As exposure to herbicides is not found, and service connection for the underlying claimed disability is not found, there is no need for a VA examination to decide these claims. Thus, on all bases, there is no need for an examination to decide these claims. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel