Citation Nr: 1118773 Decision Date: 05/16/11 Archive Date: 05/26/11 DOCKET NO. 06-05 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, to include as due to Agent Orange exposure. 2. Entitlement to service connection for residuals, stroke, as secondary to Type II diabetes mellitus. 3. Entitlement to service connection for left lower extremity amputation, as secondary to Type II diabetes mellitus. 4. Entitlement to service connection for right lower extremity amputation, as secondary to Type II diabetes mellitus. 5. Entitlement to service connection for diabetic retinopathy, as secondary to Type II diabetes mellitus. 6. Entitlement to service connection for peripheral neuropathy, as secondary to Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from August 1961 to August 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island which, in part, denied entitlement to service connection for diabetes mellitus (to include as due to Agent Orange exposure), residuals, stroke (as secondary to Type II diabetes mellitus), left lower extremity amputation (as secondary to Type II diabetes mellitus), right lower extremity (as secondary to Type II diabetes mellitus), diabetic retinopathy (as secondary to Type II diabetes mellitus), and peripheral neuropathy (as secondary to Type II diabetes mellitus). In a February 2009 decision, the Board remanded these issues for additional development. FINDINGS OF FACT 1. The evidence of record does not demonstrate, nor does the Veteran allege, that he served within the land borders or in the inland waters of the Republic of Vietnam while on active duty, and his claimed exposure to herbicides in Okinawa, Japan and Cheyenne, Wyoming has not been verified; therefore, exposure to an herbicide agent is not presumed. 2. Competent evidence of record reflects that Type II diabetes mellitus, first diagnosed many years after separation from service, is not the result of an event, injury, or disease incurred in service, to include any exposure to herbicides. 3. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between residuals, stroke and service; nor is there any persuasive medical evidence or opinion that residuals, stroke is proximately due to or aggravated by a service-connected disability. 4. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between left lower extremity amputation and service; nor is there any persuasive medical evidence or opinion that left lower extremity amputation is proximately due to or aggravated by a service-connected disability. 5. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between right lower extremity amputation and service; nor is there any persuasive medical evidence or opinion that right lower extremity amputation is proximately due to or aggravated by a service-connected disability. 6. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between diabetic retinopathy and service; nor is there any persuasive medical evidence or opinion that diabetic retinopathy is proximately due to or aggravated by a service-connected disability. 7. There is no persuasive medical evidence or opinion of a medical relationship, or nexus, between peripheral neuropathy and service; nor is there any persuasive medical evidence or opinion that peripheral neuropathy is proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in or aggravated by military service, nor may service incurrence of diabetes mellitus be presumed, to include as due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). 2. Residuals, stroke were not incurred in or aggravated by active service and are not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). 3. A left lower extremity amputation was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). 4. A right lower extremity amputation was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). 5. Diabetic retinopathy was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). 6. Peripheral neuropathy was not incurred in or aggravated by active service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this appeal, in a March 2009 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the March 2009 letter, and opportunity for the Veteran to respond, the December 2010 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of the claimed disabilities. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination 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 of McLendon are not met in this case, as there is no indication that Type II diabetes mellitus was related to service, to include as due to Agent Orange exposure, and there is no indication that any of the remaining disabilities are related to a service connected disability. Thus remand for a VA examination is not necessary. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If diabetes mellitus becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the Veteran had a chronic disorder in service or during an applicable presumptive period, and that the Veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage, supra., 10 Vet. App. 488, 494-95 (1997). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, Type 2 diabetes (also known as Type 2 diabetes mellitus or adult-onset diabetes) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586- 57589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Entitlement to service connection for Type II diabetes mellitus, to include as due to Agent Orange exposure. The Veteran has asserted that he is entitled to service connection for diabetes mellitus, type II. For the reasons that follow, the Board concludes that service connection is not warranted. In this case, the Veteran does not have service in the Republic of Vietnam during the Vietnam era. Rather, as the Veteran indicated in an August 2002 statement, and reflected in the Veteran's service personnel records, that he was stationed at Kadena and Camp Suckuran in Okinawa, Japan and was also stationed at the Warren Air Force Base (AFB) in Cheyenne, Wyoming. He asserts that he developed Type II diabetes mellitus as a result of his working on planes at Camp Suckaran which had been used to spray Agent Orange in Vietnam. He also claimed that he was exposed to radiation from these aircrafts which were equipped with nuclear equipment. He noted that 2 years after his service he was diagnosed with hypoglycemia which "eventually led to being diagnosed as a Type 2 diabetic". VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n) directs that a detailed statement of a veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's ("DoD") inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. Service personnel records confirm that he served in Okinawa, Japan from January 1962 to August 1963 and at the Warren Air Force Base in Cheyenne, Wyoming from August 1963 to August 1965 and that his primary duty during that period was as an Air Policeman. The records do not show, nor does the Veteran allege, that he served in Vietnam. Service treatment records are entirely silent for any complaints, findings, or reference to any endocrine problems, including diabetes mellitus. Post-service private treatment records show that a March 1998 note indicated that he was a diabetic on medications. As noted above, the Veteran himself reported that he first developed hypoglycemia 2 years after his service which "eventually led to being diagnosed as a Type 2 diabetic". Per the February 2009 remand instructions, the RO submitted a Radiation Exposure/Dose Inquiry for the Veteran. In a September 2010 Memorandum, the Chief Radiation Health of the Air Force reported that after checking the Air Force's Master Radiation Exposure Registry (MRER) for the Veteran, they found no external or internal radiation data. The letter also indicated that the Air Force Safety Center (AFSC) reviewed the Veteran's personnel records from the NPRC and did not find evidence of duties that would have involved working directly with nuclear weapons systems or components. As such, no dose was given for the Veteran. In an October 2010 Memorandum, the RO indicated that it reviewed documentation provided by the Department of Defense (DoD) regarding locations of Agent Orange/herbicide use. A review of the DoD documentation did not show any use, testing or storage of tactical herbicides, such as Agent Orange, at any location in Wyoming or Okinawa. It was noted that some limited testing of Agent Orange was done at sites in the United States and abroad but there were no locations for Wyoming or Okinawa shown as one of these sites. There was also no evidence or presumption of exposure based on being near an aircraft that handled or sprayed Agent Orange as there were no studies of which VA is aware that show harmful health effects from secondary exposure. Therefore, under DOD guidelines, the Veteran's service in Okinawa and Wyoming did not involve circumstances under which herbicide exposure may have taken place. Without service during the requisite time period or with the requisite unit, the presumption of exposure cannot be applied. Therefore, although 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 must also determine whether the Veteran is entitled to service connection for diabetes mellitus on a direct basis, or on a presumptive basis for diabetes mellitus seen within one year of separation from service. Combee, 34 F.3d at 1043. In this respect, there is no evidence of diabetes mellitus in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. It follows there is no basis to presume the in- service incurrence of diabetes mellitus within one year of discharge from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). There is also no competent medical opinion of record linking, or suggesting a link, between the Veteran's diabetes mellitus and his claimed exposure to herbicides in service. Without medical evidence of a nexus between a claimed in-service disease or injury and the present disease or injury, service connection cannot be granted. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board also notes that the first medical evidence of any diabetes mellitus is in March 1998, approximately 33 years after separation from service. The passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has considered the Veteran and his representative's contentions, however, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address. Moreover, as indicated above, there is simply no competent medical evidence or opinion that in any way relates the Veteran's current diabetes mellitus and his period of active service, to include alleged exposure to Agent Orange or nuclear radiation. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's diabetes mellitus claim on either a direct or presumptive basis. 38 U.S.C.A. § 5107(b). For all the foregoing reasons, the claim for service connection for diabetes mellitus must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Remaining claims As the fact pattern and analysis are identical for the remaining claims for service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy, all secondary to Type II diabetes mellitus, these issues will be addressed together. Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy is not warranted. While the Veteran has asserted that he has residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy that are secondary to Type II diabetes mellitus, the decision herein denies service connection for Type II diabetes mellitus. Hence, as a matter of law, the claims for service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy as secondary to Type II diabetes mellitus are without legal merit, and must be denied as a matter of law. See 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In addition, while records of VA and private treatment reflect diagnoses of and treatment for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy, there is simply no competent, probative, medical evidence or opinion even suggesting a relationship between any of these disorders and service and neither the Veteran nor his representative has identified, presented, or alluded to the existence of any such medical evidence or opinion. In short, there is no competent medical evidence to support the claim for service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy on a direct basis. In short, there is no competent medical evidence to support the claims for service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy. Under these circumstances, the Board finds that service connection for residuals, stroke, left lower extremity amputation, right lower extremity amputation, diabetic retinopathy and peripheral neuropathy must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for Type II diabetes mellitus, to include as due to Agent Orange exposure is denied. Entitlement to service connection for residuals, stroke, as secondary to Type II diabetes mellitus is denied. Entitlement to service connection for left lower extremity amputation, as secondary to Type II diabetes mellitus is denied. Entitlement to service connection for right lower extremity, as secondary to Type II diabetes mellitus is denied. Entitlement to service connection for diabetic retinopathy, as secondary to Type II diabetes mellitus is denied. Entitlement to service connection for peripheral neuropathy, as secondary to Type II diabetes mellitus is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs