Citation Nr: 1818052 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 12-13 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to type II diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to type II diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a back disability. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a back disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1969 to March 1973. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that rating decision, the RO denied claims of entitlement to service connection for type II diabetes mellitus, peripheral neuropathy of the right and left upper extremities, peripheral neuropathy of the right and left lower extremities, a back disorder, bilateral hearing loss, tinnitus, and posttraumatic stress disorder. In January 2016, the Veteran testified during a Video Conference hearing before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the claims file. In a July 2016 decision, the Board granted the Veteran's claim of entitlement to service connection for tinnitus, and remanded the other claims for further development. Subsequent to the completion of this development, the RO issued a rating decision in which it effectuated the Board's grant of service connection for tinnitus. In addition, the RO granted service connection for a back disorder, bilateral hearing loss, and posttraumatic stress disorder. The RO continued to deny service connection for the remaining claims (service connection for type II diabetes mellitus, peripheral neuropathy of the right and left upper extremities, and peripheral neuropathy of the right and left lower extremities); and those claims have been recertified to the Board for review. See April 2017 supplemental statement of the case. FINDINGS OF FACT 1. The Veteran had no service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and the evidence is against finding that he was exposed to herbicide agents during his service. 2. Type II diabetes mellitus is not related to service and did not become manifest to a degree of 10 percent or more within one year of service. 3. Peripheral neuropathy of the right and left upper extremities is not related to service or to any service-connected disability. 4. Peripheral neuropathy of the right and left lower extremities is not related to service or to any service-connected disability. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5107 (2012); 38 C.F.R. §§ 3.201, 3.159, 3.303, 3.307, 3.309, 3.311 (2017). 2. Peripheral neuropathy of the right and left upper extremities was not incurred in service and is not proximately due to or a result of any service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 3. Peripheral neuropathy of the right and left lower extremities was not incurred in service and is not proximately due to or a result of any service-connected disability. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Overview of Service Connection Claims In this appeal, the Veteran seeks service connection for type II diabetes mellitus, and associated peripheral neuropathy of the right and left upper extremities and peripheral neuropathy of the right and left lower extremities. For the reasons set forth below, the Board finds that the Veteran's claims for service connection must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). Service connection for certain chronic diseases, including type II diabetes mellitus, will be presumed if the diseases manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). In addition to the foregoing, VA regulations provide service connection for diseases on the basis of presumed exposure to herbicides (including Agent Orange). Type II diabetes mellitus is included among the enumerated diseases. However, this presumption applies only to veterans who served during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C. §1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA Regulations also provide that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Service Connection for Type II Diabetes Mellitus (Diabetes) The Veteran seeks service connection for diabetes, to include as due to herbicide exposure. A review of the Veteran's post-service medical records reveals that the Veteran has a current diagnosis of diabetes. See VA medical records; April 2017 DBQ questionnaire. The issue that is disputed is whether or not the Veteran's diabetes is related to service or to any service-connected disability. The Veteran's primary theory of entitlement to service connection for diabetes is that he was exposed to herbicides such as Agent Orange while serving aboard the USS Guadalupe. In this regard, a review of the Veteran's personnel records verifies the Veteran's service aboard the USS Guadalupe from July 1969 to March 1973. The records reflect that the USS Guadalupe served in a "hostile fire zone" from September 1969 to October 1969 and from August 1970 to November 1970. VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975, he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore if the condition of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313 (a). "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. The Veteran reported in a March 2010 statement that while serving aboard the ship, he transferred wounded soldiers who may have been exposed to herbicides from his ship to another. In a May 2012 statement, the Veteran stated that he served in Vietnam, was close to shore "all of the time," and docked on at least 2 occasions for services that were needed. He also reported that he went inland to provide parts and to repair a boat that was damaged, thus having in-country service in Vietnam. See May 2012 VA Form-9. In an April 2014 statement, the Veteran indicated that the USS Guadalupe docked in Da Nang multiple times to send soldiers for medical and dental treatment. He also stated that "in the early part of 1970," the USS Guadalupe went inland to refuel small crafts and repair parts. Lastly, the Veteran testified during his January 2016 BVA hearing that the USS Guadalupe docked in the harbors of Vietnam and he went ashore to unload supplies. In response to the Veteran's assertions of exposure to herbicides, the RO requested information from the Personnel Information Exchange System (PIES) as to any documents it might have showing the Veteran was exposed to herbicides during service. In a response dated in February 2010, PIES reported that it had no records of exposure ("no records of exposure to herbicides.") That same month, PIES notified the RO that it was unable to determine whether the Veteran served in Vietnam. PIES provided the RO with information as to the Veteran's service ship, the USS Guadalupe, and the dates the ship was in the official waters off the Republic of Vietnam. In an attempt to locate documentation supporting a presumptive finding that the Veteran was exposed to herbicides, the RO sent a letter to the Veteran asking for a more specific time frame during which the Veteran went ashore in Vietnam to repair a boat; and time frames he went inland when the USS Guadalupe docked (on at least two occasions) for services. See March 2014 letter from the RO to the Veteran. After not receiving a response, the RO set forth the research that had been undertaken in attempting to determine whether there was sufficient evidence upon which VA could concede that the Veteran had service in the Republic of Vietnam. The ultimate finding in the memo was that there was not enough evidence to concede such service. See May 2014 memorandum. When remanding the Veteran's appeal, the Board requested that the RO attempt to determine whether the USS Guadalupe operated in the inland waterways (i.e., "brown waters") of Vietnam and, if so, when such activity occurred. The Board also asked the RO to attempt to verify the Veteran's purported in-country service in Vietnam in 1970. In response to the Board's July 2016 remand, the RO requested information from the Modern Military Branch of the National Archives Research Administration (NARA) in September 2016. In doing so, the RO obtained the deck logs documenting the locations of the USS Guadalupe for 1970. In October 2016, NARA also provided the RO with a breakdown of the USS Guadalupe's locations. Unfortunately, the information provided by NARA does not show that the USS Guadalupe sailed into any inland waterway. Thereafter, the RO contacted DPRIS (the Defense Personnel Records System Retrieval System) with a request that they research whether the USS Guadalupe ever sailed through the inland waterways of Vietnam during 1970. In a memo received by the Board in March 2017, DPRIS responded by reporting that the history of the USS Guadalupe did not document that the ship docked or transited inland waterways; or the ship's personnel stepped foot in the Republic of Vietnam. Subsequently, a memo was prepared and associated with the Veteran's claims file detailing VA's attempt to verify the Veteran's exposure to Agent Orange. See March 2017 memo from JSRRC. That memo reflects the above-reference attempts to verify such exposure, in addition to a request sent to VA's Compensation Services. Ultimately, JSRRC reported that it was unable to verify that the Veteran was exposed to Agent Orange. Id., see also May 2014 memorandum documenting the RO's determination that there was not enough evidence of record to concede the Veteran having service in the Republic of Vietnam. Based upon the foregoing, the Board is unable to find that the Veteran was in the Republic of Vietnam during his period of service or that the USS Guadalupe sailed via the brown waters of the Republic of Vietnam. Absent this determination, service connection cannot be granted on a presumptive basis. In making this determination, the Board has reviewed the Veteran's lay assertions that the USS Guadalupe sailed through the inland waterways of Vietnam, and that he went ashore in the Republic of Vietnam on several occasions. The Board has considered this evidence in the context of the entire record. In doing so, the Board finds that the Veteran is certainly competent to report the experiences he had during service, to include his belief that he was exposed to Agent Orange. However, to the extent that the Veteran relies upon his statements and testimony to support his herbicide claim, the Board finds his lay statements to be of less probative value than the research undertaken by the RO that contradicts the Veteran's assertions. Additionally, the Board has considered the statement of the Veteran in which he asserts that he may have been directly exposed to Agent Orange while aboard the USS Guadalupe when he transferred wounded soldiers who may have been exposed to herbicides from his ship to another. Unfortunately, the Board cannot accept this statement as a basis for a grant of service connection for diabetes. The Veteran does not have actual knowledge that any of the soldiers he assisted during that time had been exposed to herbicide agents; or that anyone actually exposed him to such agents. Stated another way, the Board finds the Veteran's statement to be speculative at best; and therefore finds it to be of less probative value than the evidence discussed above. Regardless of the lack of presumptive service connection based on herbicides available to the Veteran, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). The Board observes that a review of the Veteran's service medical records does not reflect any diagnoses of/or symptomatology that can be or has been associated with a diagnosis of diabetes. In this regard, the Veteran's February 1973 separation from service medical examination report reflects that a clinical evaluation of his endocrine system was found to be normal. The only condition listed in the "summary of defects and diagnoses" section of the report reflects that the Veteran had a right inguinal hernia that was asymptomatic. Post-service medical records do not relate that the Veteran was diagnosed during service or within a year after his separation from service. Rather, the records appear to document that the Veteran was diagnosed with diabetes in approximately 1990. See medical records dated in September 1994 (doctor reported in a September 1994 medical record that the Veteran had a 4 year history of diabetes mellitus); see also BVA hearing transcript, p. 13 (the Veteran testified that he was diagnosed with diabetes between 1990 and 1991). Thus, presumptive service connection based on a chronic disability diagnosed within one year of separation from service is not warranted. Additionally, the Board observes that the RO obtained a medical opinion in this case regarding the etiology of the Veteran's diabetes mellitus. In this regard, a VA medical doctor ultimately opined that the Veteran's currently diagnosed diabetes was less likely than not incurred or caused by a specific in-service illness, event or injury. The doctor reported that there was not enough information or evidence to establish a diagnosis of diabetes or a pre-diabetic state during the Veteran's military service. The Board finds the April 2017 VA medical opinion to be both persuasive and credible as it was based upon a review of all of the evidence of record; and is the only medical opinion contained in the claims file that addresses the question as to the likelihood that the Veteran's diabetes is related to service. Therefore, after reviewing all of the evidence contained in the claims file, the Board finds that service connection for type II diabetes mellitus cannot be granted on either a direct or presumptive basis. As such, the Veteran claim of entitlement to service connection for Type II diabetes mellitus must be denied. Service Connection for Peripheral Neuropathy of the Upper Extremities In addition to the foregoing, the Veteran seeks service connection for peripheral neuropathy of the right and left upper extremities. His primary theory of entitlement to service connection for upper extremity peripheral neuropathy is that is developed secondary to his diabetes mellitus. An April 2017 VA examination report reflects diagnoses of moderately severe diffuse diabetic polyneuropathy of upper bilateral extremities and relates these diagnoses to the Veteran's diabetes mellitus. However, as set forth above, the Veteran is not currently service-connected for diabetes. Since establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists that was either (a) caused by or (b) aggravated by a service connected disability, the Veteran's claim for peripheral neuropathy of the right and left upper extremities on a secondary basis must be denied. In terms of obtaining service connection on a direct basis, the Veteran's service treatment records reveal that the Veteran was seen in February 1973 for a separation from active duty examination. Clinical evaluation of the upper extremities and lower extremities were found to be normal. As mentioned above, the only condition listed in the "summary of defects and diagnoses" section of the report reflects that the Veteran had a right inguinal hernia that was asymptomatic. Given this evidence, reviewed in conjunction with all other evidence in the Veteran's claims file, the Board finds that service connection for bilateral upper extremity peripheral neuropathy must be denied. Service Connection for Peripheral Neuropathy of the Lower Extremities Lastly, the Veteran seeks service connection for peripheral neuropathy of the right and left lower extremities, to include as secondary to his service-connected back disability. In relationship to these claims, the Veteran's primary theory of entitlement to service connection is that his lower extremities bilateral peripheral neuropathy developed secondary to his recently service-connected back disability. However, a review of the evidence in the claims file reveals a lack of evidence supportive of the Veteran's theory. Rather, the more probative and persuasive evidence of record again consists of the Veteran's April 2017 VA examination report, in which the medical doctor who examined the Veteran opined that that the Veteran's peripheral neuropathy of the bilateral lower extremities was the result of the Veteran's diabetes, not the Veteran's back condition. In this regard, he stated that the Veteran's back condition neither caused nor aggravated the Veteran's peripheral neuropathy in that there was a lack of evidence to support or establish a reasonable explanation or baseline as to the etiology of the Veteran's back pain; and that there was no establishment of any low back condition to suggest nerve involvement due to any arthritic or degenerative problems. For the same reasons as set forth above, the Board finds the April 2017 VA medical opinion as to this issue to be both persuasive, credible and non-contradicted. In terms of direct service connection, a review of the Veteran's service treatment reflect medical care for such things as motion sickness, severe tension headache, laceration over the left eye and stomach cramps, no numbness or pain associated with the lower extremities. The Board has also considered service medical records dated in April 1972 that document treatment related to first and second degree burns on the anterior and lateral part of the Veteran's legs, burns extending from below the knees to above the knees. However, medical records dated in May 1972 report that the Veteran's legs were almost healed; and that he was returned to full duty. There is no indication of any relationship between the Veteran's current bilateral lower extremity peripheral neuropathy and the burns he suffered in service. Therefore, after a complete review of all evidence of record, the Board finds that the Veteran's request for service connection on either a direct or secondary basis must be denied as the preponderance of the evidence is against his bilateral lower extremities peripheral neuropathy claims. Conclusion Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for type II diabetes mellitus, peripheral neuropathy of the right and left upper extremities, and peripheral neuropathy of the right and left lower extremities. These claims must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. ORDER Service connection for type II diabetes mellitus, to include as secondary to herbicide exposure, is denied. Service connection for peripheral neuropathy of the right upper extremity, to include as secondary to type II diabetes mellitus, is denied. Service connection for peripheral neuropathy of the left upper extremity, to include as secondary to type II diabetes mellitus, is denied. Service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a back disability, is denied. Service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a back disability, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs