Citation Nr: 1126294 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-10 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a vision disability, to include glaucoma and cataracts. 2. Entitlement to an increased evaluation for degenerative joint disease (DJD), 1st metacarpal, left. 3. Entitlement to an increased evaluation for eczematous dermatitis, currently evaluated as 60 percent disabling. 4. Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus. 5. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Office of the Deputy Adjutant General for Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran, his spouse, and daughter ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from March 1948 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the RO that, in pertinent part, denied the Veteran's claims. The Veteran filed timely appeals of these determinations to the Board. In April 2011, the Veteran, his wife and daughter accompanied by the Veteran's representative, testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript of these proceedings has been associated with the Veteran's claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At a hearing before the Board in April 2011, and prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his claim of entitlement to service connection for a vision disability and his claims for entitlement to increased evaluations for left 1st metacarpal degenerative joint disease and a skin disorder. 2. Evidence submitted since the March 2002 RO decision, denying service connection for diabetes mellitus, is new in that it has not been previously considered and is material as it relates to unestablished facts necessary to substantiate the claim for service connection for diabetes mellitus, to include as secondary to Agent Orange exposure. 3. The Veteran did not have service in the Republic of Vietnam. The preponderance of the evidence indicates that the Veteran's service in Alaska did not involve duty or visitation in the Republic of Vietnam; and exposure to herbicide agents has not otherwise been verified. 4. Diabetes mellitus was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service (to include as due to herbicide exposure). CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran concerning the issue of entitlement to service connection for a vision disability, to include glaucoma and cataracts has been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 2. The criteria for withdrawal of a Substantive Appeal by the Veteran concerning the issues of entitlement to an increased evaluation for left 1st metacarpal degenerative joint disease and a skin disorder have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2010). 3. The March 2002 rating decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 3.104, 20.302, 20.1103 (2010). 4. New and material evidence has been received by VA since entry of the March 2002 RO decision denying service connection for diabetes mellitus. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.156 (2010). 5. Diabetes mellitus was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 7105. A substantive appeal may be withdrawn in record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b). Withdrawal may be made by the veteran or his authorized representative. 38 C.F.R. § 20.204(a). By a September 2008 rating decision, the RO denied service connection for an eye disorder and granted service connection for a skin disorder and for degenerative joint disease of the left first metacarpal. In November 2008, the Veteran filed a notice of disagreement. In February 2009, the RO issued a statement of the case. In March 2009, the Veteran perfected the appeal. 38 C.F.R. § 20.202. At the April 2011 Board hearing, the Veteran orally stated his intent to withdrew the appeal as to these issues. This is sufficient to withdraw the issues on appeal. 38 C.F.R. § 20.204(b)(1). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. 38 C.F.R. § 20.204(c). Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to service connection for an eye disorder and increased evaluations for a skin disorder and for degenerative joint disease of the left first metacarpal. Claim to reopen Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, for a claim to reopen, the claimant must also be notified of the evidence and information that is necessary to reopen the claim, including the basis for the prior denial of the claim and the evidence necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). October 2007 and June 2008 letters that provided the appropriate content of notice were sent to the Veteran prior to initial adjudication. Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. VA did not provide the Veteran with a medical examination but none was required in this case. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Here, as will be discussed further below, the evidence of record does not establish the presence of any inservice event or a presumptive disease during the pertinent period. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Additionally, the Veteran provided testimony at an April 2011 Board hearing. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Generally, a claim that has been denied in a Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 511(a), 7103(c), 7104(a), 7105(c) (West 2002); 38 C.F.R. §§ 20.1100 (2010); see also Hayslip v. Principi, 364 F.3d 1321 (Fed. Cir. 2004). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992). After reviewing the record, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for diabetes mellitus has been presented. Here, the evidence submitted after the March 2002 RO decision consists of medical treatment records, statements submitted by the Veteran his spouse, and his representative in connection with the claim, and a March 2009 internet article. In addition, the Veteran has offered testimony during his April 2011 hearing. These documents related to his inservice Agent Orange exposure, which is the reason for the prior denial of his claim. Accordingly, the Board finds that information added to the record since March 2002 is new and material and does relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Consequently, the claim of service connection for diabetes mellitus is reopened. Service connection claim If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified diseases, to include diabetes mellitus. 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed exposed to an herbicide agent 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.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "[S]ervice in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); 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 (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). These diseases must become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing, the veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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. 38 C.F.R. § 3.303(d). In addition, diabetes mellitus may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. In his August 2007 claim, the Veteran contended that he suffers from diabetes mellitus as a result of exposure to Agent Orange from 1964 to 1967 while at Elmendorf Air Force Base in Alaska. He stated that he was exposed to Agent Orange while handling busted and/or leaking barrels. Service treatment and personnel records do not demonstrate any exposure to Agent Orange or any diagnoses of diabetes mellitus. Additionally, the personnel records do not demonstrate any service in Vietnam. VA and private medical records provide diagnoses of diabetes mellitus, as early as 1994. In October 2007, the National Personnel Records Center (NPRC) noted that there was no record of the Veteran being exposed to Agent Orange during service. In an August 2008 statement from VA Central Office, the RO was notified that there were no records showing that the Veteran had been exposed to herbicides. It was noted that a review of the listing of herbicide use and test sites outside of Vietnam was provided by the Department of Defense (DOD). The list contained 71 sites where herbicides, including, Agent Orange, was used or tested. The list did not contain the names of participants. Neither did it contain any references to routine base maintenance activities. The DOD list did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any military post in Alaska. The report noted that Agent Orange was developed for use in the jungles of Vietnam and Alaska has no such environment. Additionally Alaskan bases were generally not on a supply line to Vietnam and so would not have been transporting Agent Orange. Therefore, it was not clear why the Veteran would have been handling the Agent Orange herbicide. As a result there was no evidence to support the Veteran's claim. At the April 2011 Board hearing, the Veteran testified that he was exposed to Agent Orange while stationed at Fort Richardson, near Elmendorf Air Force Base in Alaska. He testified that he was sent temporary duty to the Alaska International Airport where aircraft maintenance was performed. He was a cargo handler and removed cargo from aircraft going in for maintenance. The cargo was temporarily stored until the maintenance was completed and then he reloaded the cargo onto the aircraft. He asserted that the cargo contained Agent Orange which was being shipped to Vietnam. The Veteran's spouse and daughter also testified that his clothes smelled funny when he came home from work and that the entire family had rashes from exposure to Agent Orange on the Veteran's clothes. The Board notes that the file contains an internet article dated in March 2009 and entitled, "The Mystery of Cancer in Alaska." This article refers to an abandoned military pipeline which ran from Haines to Fairbanks, Alaska from 1954 to 1973. The article noted that an herbicide called Esteron was used along the pipeline. This herbicide was claimed to be Agent Orange. In addition, the article stated that a military memorandum noted that Agent Orange was sprayed along the pipeline. The Board finds that the evidence of record does not support a finding of service connection for diabetes mellitus. There is a current diagnosis of diabetes mellitus. 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. But diabetes was not diagnosed during service or within one year of service discharge. 38 C.F.R. §§ 3.303, 3.307, 3.309; Shedden, 381 F.3d at 1167. Additionally, although the Veteran has provided testimony that he believes he was exposed to Agent Orange during his service in Alaska, the Board finds that the evidence of record supports a finding that he was not exposed to Agent Orange. The Board notes that the Veteran's contention that he was exposed to Agent Orange constitutes an honest belief on his part. However, although he is competent to report that he unloaded cargo, to include barrels of some type of liquid, it is not shown that he has the necessary training to be competent to offer an opinion as to what the liquid was. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (noting that Federal Rule of Evidence 702 requires that scientific, technical, or other specialized knowledge, must be provided by a witness qualified as an expert by knowledge, skill, experience, training, or education). Additionally, it has not been shown that the Veteran's wife or daughter have the type of knowledge, experience, or skill necessary to determine the presence of Agent Orange on the Veteran's clothes or to provide opinions regarding whether the Veteran's diabetes mellitus is due to service. Layno, 6 Vet. App. at 469-70; Espiritu, 2 Vet. App. at 495. Moreover, the overall preponderance of the evidence in the form of responses from the NPRC and DOD is against a finding of exposure to Agent Orange. Although an internet article indicated there was herbicide use at a pipeline in Alaska, even if that was the case, the pipeline corridor was located several hundred miles north of where the Veteran was stationed. Additionally, the Veteran has not alleged that he was stationed anywhere near this pipeline. Although the Veteran is competent to testify that he was exposed to barrels of chemicals in service, he is not competent to identify the cause of the diabetes, to include as whether it was caused by herbicide exposure, as such an opinion requires specialized medi Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (cal training. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that a categorical statement that medical evidence is required to demonstrate etiology conflicts with caselaw); Espiritu, 2 Vet. App. at 49. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The claim of entitlement to service connection for a vision disability is dismissed. The claim of entitlement to an increased evaluation for degenerative joint disease (DJD), 1st metacarpal, left, is dismissed. The claim of entitlement to an increased evaluation for a skin disorder is dismissed. New and material evidence having been received, the claim for entitlement to service connection for diabetes mellitus is reopened; the claim is granted to this extent only. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs