Citation Nr: 0903931 Decision Date: 02/04/09 Archive Date: 02/12/09 DOCKET NO. 07-29 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for residuals of heart attack. 3. Entitlement to service connection for residuals of stroke. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from September 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2007, a statement of the case was issued in June 2007, and a substantive appeal was received in September 2007. A personal RO hearing was held in December 2007 and a Board hearing at the RO was held in December 2008. FINDINGS OF FACT 1. The veteran did not serve in the Republic of the Vietnam during his active service, and exposure to herbicides during his active duty service is not otherwise shown. 2. Diabetes mellitus was not manifested during the veteran's active duty service or for many years thereafter, nor is it otherwise related to the veteran's active duty service. 3. Cardiovascular disease, to include a heart attack, was not manifested during the veteran's active duty service or for many years thereafter, nor is it otherwise related to the veteran's active duty service. 4. Cerebrovascular disease, to include a stroke, was not manifested during the veteran's active duty service or for many years thereafter, nor is it otherwise related to the veteran's active duty service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to be incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. Residuals of a heart attack were not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to be incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 3. Residuals of a stroke were not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to be incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in an October 2006 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in October 2006, which was prior to the January 2007 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the October 2006 VCAA letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, service personnel records and private treatment records. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Moreover, as discussed in more detail below, a VA examination with nexus opinion is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet.App. 79 (2006), states, that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards set forth in McLendon are not met in this case. Initially, the evidence does not establish that the veteran suffered "an event, injury or disease in service," including exposure to herbicides, so it is not necessary to obtain a VA medical opinion with regard to etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In other words, absent such evidence, the Board finds that it is unnecessary to require the veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the manifestation of the disabilities on appeal in service. Moreover, given the absence of any competent evidence of the claimed post-service disabilities until many years after service, any current opinion provided at this point would be no more than speculative. See 38 C.F.R. § 3.102 (2007) (a finding of service connection may not be based on a resort to speculation or even remote possibility). In this case, the Board finds that a VA medical opinion or examination is not necessary with regard to the question of etiology. The service treatment records do not reflect a diagnosis of the disabilities on appeal. Because the evidence does not establish that the veteran suffered "an event, injury or disease in service," including exposure to herbicides, as it relates to his claim of service connection, it is not necessary to obtain a VA medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In other words, absent such evidence, the Board finds it unnecessary to require the veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the manifestation of the disabilities on appeal in service. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arteriosclerosis, brain hemorrhage, cardiovascular-renal disease and diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Diabetes Mellitus The veteran is claiming entitlement to service connection for diabetes mellitus. Specifically, he is claiming that his diabetes mellitus is due to exposure to herbicides. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). In addition, the United States Court of Appeals for the Federal Circuit has determined that a veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The veteran's military personnel record shows that the veteran did not serve in the Republic of Vietnam at any time, and the veteran is not claiming otherwise. Rather, he is claiming that he was exposed to herbicides while stationed at Kadena Air Force Base in Okinawa, Japan from 1968 to 1969. Specifically, in his notice of disagreement, substantive appeal, and hearing testimony, he contended that herbicides, which were being transported to Vietnam by aircraft, went through Kadena. Further, he asserted that herbicides were sprayed on the perimeter of the base. However, there is no persuasive supporting evidence to show that the veteran was exposed to any herbicides in this manner. Importantly, in May 2007, the National Personnel Records Center found no records that the veteran was exposed to herbicides. Further, while the veteran's service personnel records do show that he was stationed at Kadena from 1968 to 1969, they are silent with respect to any documentation of exposure to herbicides. Likewise the Department of Defense does not have any recorded occupational exposures to herbicides in Okinawa. In this case, the veteran primarily relies on a January 1998 Board decision that granted service connection for prostate cancer due to Agent Orange exposure for another veteran. The veteran in that case was stationed in Okinawa from 1961 to 1962 and claimed that he was directly involved in the transport of herbicides. Nevertheless, the prior Board decision is considered nonprecendential. 38 C.F.R. § 20.1303. Significantly, the Department of Defense has, since the time of the 1998 Board decision, made available information as to areas outside of Vietnam which have been identified as locations where herbicides were stored, used, or destroyed. The Board is unaware of any official confirmation that veterans were exposed to herbicides anywhere in Okinawa. It further appears from the December 2008 Board hearing testimony that neither the veteran nor his representative have been able to obtain any official supporting evidence. The Board understands the veteran's contentions, but there appears to be no actual evidence of herbicides in Okinawa, much less evidence that the veteran was actually exposed to herbicides while stationed there. Therefore, even though the veteran has been diagnosed with diabetes mellitus, which is one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e), he is not presumed to have been exposed to herbicide agents because he was never in Vietnam and there is no record of any other herbicide exposure while in service. 38 U.S.C.A. § 1116(f). Thus, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The Board acknowledges the veteran's statements indicating that his diabetes mellitus was due to exposure to herbicides in service. However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As noted above, the veteran's service personnel records are completely silent as to any exposure to herbicides. The fact remains that there is no indication that the veteran was exposed to herbicides in service. While the veteran's contentions have been carefully considered, these contentions are outweighed by the lack of evidence to support the claim. The Board now turns to whether service connection for diabetes mellitus is warranted on a direct causal basis. The veteran's service treatment records do not show any treatment or diagnosis of diabetes mellitus. Further, the veteran's July 1969 service examination prior to discharge was silent with respect to any findings of diabetes mellitus. The veteran has testified that he was diagnosed with diabetes mellitus in 1986, which was many years after his discharge from active duty service. Private treatment records from Columbia Medical Associates from August 1999 to October 2006 showed treatment for diabetes mellitus, type II. The Board must conclude that with no evidence of diabetes mellitus, type II, in service or for many years after discharge from service, and no medical evidence of record suggesting a link between the veteran's current disease and his active duty service, to include exposure to herbicides, there is no basis for awarding service connection for diabetes mellitus either on a direct basis or under the one- year presumption. Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the veteran's claim for diabetes mellitus. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Residuals of Heart Attack The veteran is also seeking entitlement to service connection for residuals of heart attack. In his Board hearing testimony, he primarily claimed that his residuals of heart attack were due to his diabetes mellitus. Service treatment records are silent with respect to any heart problems. Importantly, the July 1969 service examination showed that the heart was clinically evaluated as normal. The veteran testified that he had a heart attack in 2000. A February 2000 treatment record from Columbia Medical Associates showed that the veteran had a recent anterior myocardial infarction and compensated congestive heart failure. These records also showed an assessment of coronary artery disease. Initially, the Board notes that service connection as secondary to diabetes mellitus cannot be granted as entitlement to service connection for diabetes mellitus has not been established. See 38 C.F.R. § 3.310. Further, as discussed above, the veteran is not presumed to have been exposed to herbicide agents and the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Moreover, residuals of heart attack is not one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e) as being presumed due to exposure to herbicides. Further, as there is no evidence of a heart disability in service or for many years after discharge from service, and no medical evidence of record suggesting a link between the veteran's current disease and his active duty service, to include exposure to herbicides, there is no basis for awarding service connection for residuals of heart attack either on a direct basis or under the one-year presumption. In conclusion, a preponderance of the evidence is against the veteran's claim for residuals of heart attack. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Residuals of Stroke Lastly, the present appeal also includes the claim for service connection for residuals of stroke. Again, in his Board hearing testimony, the veteran primarily claimed that his residuals of stroke were due to his diabetes mellitus. Service treatment records are silent with respect to a cerebrovascular accident. Importantly, the July 1969 service examination showed that the head and vascular system were clinically evaluated as normal. The veteran testified that he had a stroke sometime in the last year. July through December 2006 treatment records from Columbia Medical Associates showed an assessment of post cerebrovascular accident. Essentially, the same analysis discussed above with respect to residuals of heart attack is also applicable to this issue. Initially, service connection as secondary to diabetes mellitus cannot be granted as entitlement to service connection for diabetes mellitus has not been established. See 38 C.F.R. § 3.310. Further, the veteran is not presumed to have been exposed to herbicide agents and the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Moreover, residuals of stroke is not one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e) as being presumed due to exposure to herbicides. Further, again, as there is no evidence of a stroke in service or for many years after discharge from service, and no medical evidence of record suggesting a link between the veteran's current disease and his active duty service, to include exposure to herbicides, there is no basis for awarding service connection for residuals of stroke either on a direct basis or under the one-year presumption. In conclusion, a preponderance of the evidence is against the veteran's claim for residuals of stroke. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for diabetes mellitus, residuals of heart attack and residuals of stroke is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs