Citation Nr: 1807799	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-15 331	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for diabetes mellitus type II as result of exposure to herbicides.

3.  Entitlement to service connection for coronary artery disease, by-pass, as secondary to diabetes mellitus type II.

4.  Entitlement to service connection for hypertension (also claimed as high blood pressure) as secondary to diabetes mellitus, type II.

5.  Entitlement to service connection for peripheral neuropathy, left upper extremity, as secondary to diabetes mellitus type II.  

6.  Entitlement to service connection for peripheral neuropathy, right upper extremity, as secondary to diabetes mellitus type II.  

7.  Entitlement to service connection for peripheral neuropathy, left lower extremity, as secondary to diabetes mellitus type II.  

8.  Entitlement to service connection for peripheral neuropathy, right lower extremity, as secondary to diabetes mellitus type II.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Daniels, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1964 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida.

The issues of entitlement to service connection for coronary artery disease, entitlement to service connection for hypertension (also claimed as high blood pressure), entitlement to service connection for upper left peripheral neuropathy, entitlement to service connection for upper right peripheral neuropathy, entitlement to service connection for lower left peripheral neuropathy, and entitlement to service connection for lower right peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran has a current diagnosis of diabetes mellitus type II.

2.  The evidence shows that the Veteran served on the inland waterways of the Republic of Vietnam in December 1965.   

3.  The evidence does not support a finding of a current bilateral hearing loss disability.  


CONCLUSIONS OF LAW

1.  The Veteran's diabetes mellitus type II was due to his presumed herbicide exposure that was incurred in service.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).  

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2017).  Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication.  Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in a letter dated in September 2008.

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the May 2014 statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained examinations with respect to the claims decided herein.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.


Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131 (2012).  Service connection may also 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(d) (2017).

Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307 (a)(6)(iii) (2017).  A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  Such service must be either "foot-on-ground" service or service on the inland waterways in the interior of the Republic of Vietnam ("brown water service" versus "blue water service").  See 38 C.F.R. § 3.307(a)(6)(iii) (2017); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases, including diabetes mellitus type II, 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 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) (2017).  

Historically, the Veterans Benefits Administration (VBA) has extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships).  See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b.

Significantly, in April 2015, the United States Court of Appeals for Veterans Claims (the Court), in addressing a claim for presumptive service connection based on herbicide exposure while a veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore waterway rather than an inland waterway was inconsistent with the identified purpose of the statute and regulation (i.e. providing compensation to veterans based on the likelihood of exposure to herbicides).  Gray v. McDonald, 27 Vet. App. 313, 326 (2015).  

As a result of the Gray decision, the VBA revised its manual as to which bodies of water in Vietnam constitute inland waterways. The revised M21-1 defines offshore waters as the high seas or any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. M21-1 pt. IV, subpt ii. § 1.H.2.b. The revised M21-1 specifically lists Da Nang Harbor as offshore waters (blue-water Navy service). M21-1, IV.ii.1.H.2.c.

In its current list titled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," the VBA recognizes that the U.S.S. Henderson temporarily operated on Vietnam's inland waterways during December 17, 1965.  

Diabetes Mellitus

The claims file includes military personal records indicating that he served aboard the U.S.S. Henderson (DD-765) beginning in November 1965 until at least April 1967.  VBA recognizes that, during this time, this ship was temporarily on the inland waterways of Vietnam.  As such, the updated guidance set forth by VBA in the aforementioned list specifically extends the herbicide presumption to this Veteran.

Thus, the Board finds that the Veteran served aboard a ship that was located on the inland waterways of Vietnam in December 1965, and is presumed to have been exposed to herbicides.  Consequently, his currently diagnosed diabetes mellitus, type II, is presumed due to his in-service herbicide exposure pursuant to 38 C.F.R. § 3.309(3).  Thus, service connection for diabetes mellitus, type II, is warranted.  

Bilateral Hearing Loss

The Veteran received a VA examination in February 2010 for hearing difficulties since rupturing an ear drum during service.  He indicated that he was a sonar technician for a surface fleet, and used headphones.  The Veteran also reported gunfire on a destroyer while helping the quartermaster on deck.  

Upon examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
15
20
LEFT
15
10
5
15
30

The average was 12.5 decibels for the right ear and 15 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear.  As a result of the examination, the examiner conceded acoustic trauma during service, but concluded that the right ear was clinically normal, and the hearing loss noted in the left ear was not disabling per 38 C.F.R. § 3.385.  

The Board finds the February 2010 examination highly probative evidence against the Veteran's claim.  As there is no current diagnosis of bilateral hearing loss, the Board further finds that the first element of service connection is not satisfied, and that service connection for hearing loss is not warranted.  


ORDER

Service connection for diabetes mellitus type II is granted.  

Service connection for bilateral hearing loss is denied.  


REMAND

Hypertension, CAD, Bilateral Upper and Lower Peripheral Neuropathy

Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal.  As the Veteran's medical records establish diagnoses or persistent symptoms of hypertension, CAD, and upper and lower bilateral peripheral neuropathy, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service or his newly service-connected diabetes mellitus, the Board finds that a medical examination with an opinion is necessary to decide the claims.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006).  Specifically, a remand is required to afford the Veteran VA examinations so as to determine the nature and etiology of these disabilities.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension and CAD.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.  

The examiner is requested to address the following:  

a)  Whether it is as least as likely as not (50 percent probability or more) that the Veteran's hypertension and CAD had their onset in service or within one year of service, or are otherwise the result of an incident in service.  

b)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension and CAD are related to herbicide exposure during his military service.  The examiner is advised that the Veteran is presumed to have been exposed to herbicides during his service.

c)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension and CAD were caused or aggravated by his service-connected diabetes mellitus type II.  Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his upper and lower bilateral peripheral neuropathy.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.  

The examiner is requested to address the following:  

a)  Whether it is as least as likely as not (50 percent probability or more) that the Veteran's upper and lower bilateral peripheral neuropathy had its onset in service or is otherwise the result of an incident in service.

b)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's upper and lower bilateral peripheral neuropathy are related to herbicide exposure during his military service.  The examiner is advised that the Veteran is presumed to have been exposed to herbicides during his service.

c)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's upper and lower bilateral peripheral neuropathy was caused or aggravated by his service-connected diabetes mellitus type II.  Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

3.  Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim for service connection for hypertension, CAD, and upper and lower bilateral peripheral neuropathy.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned 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).

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).




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs