Citation Nr: 1204756	
Decision Date: 02/07/12    Archive Date: 02/16/12

DOCKET NO. 04-39 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 


REPRESENTATION

Appellant represented by:	Kenneth R. Lewis, Representative


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from June 1963 to July 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The rating decision denied entitlement to service connection for diabetes mellitus. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Subsequent to the issuance of the most recent Supplemental Statement of the Case in November 2011, the Veteran's representative submitted an additional statement in support of the claim on appeal. It was not accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2011). Because the Board is rendering a favorable decision in this case, there is no prejudice to the Veteran for the Board to adjudicate this claim without first remanding it so that the RO can consider the additional evidence. 

In May 2006, August 2009, and May 2011, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and consideration. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The opinions of the November 2010 VA examiner and Dr. R. M. are competent medical evidence.

2. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has diabetes mellitus that began during active service or is related to an incident of service. 


CONCLUSION OF LAW

The Veteran's diabetes mellitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 


Entitlement to Service Connection for Diabetes Mellitus

The Veteran contends that his diagnosed diabetes mellitus is the result of exposure to herbicides at Wright Patterson Air Force Base ("AFB") in Ohio. Although the Department of Defense ("DoD") reported that Agent Orange was not used at Wright Patterson AFB, there is competent medical evidence linking his current disability directly to his period of active service without regard to herbicide exposure. As a result, the claim will be granted. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). 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).

In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

Alternatively, the nexus requirement may be satisfied by evidence that a disease subject to presumptive service connection (here, diabetes mellitus) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

Diabetes mellitus has been associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1),(2); 38 C.F.R. § 3.307(a)(6), 3.309(e). The record does not indicate nor does the Veteran contend that he had service in the Republic of Vietnam during the Vietnam Era. As a result, he cannot be presumed to have had herbicide exposure based on Vietnam service. 38 C.F.R. § 3.307(a)(6)(iii).

However, the Veteran has submitted evidence suggestive of such exposure, outside of Vietnam. The Veteran states that during the summer of 1965 he was stationed at Wright-Patterson AFB as a personnel specialist and his work center was located adjacent to a hanger on the flight line which housed supplies that supported Strategic Air Command missions. According to the Veteran, this included 55-gallon barrels of Agent Orange, and on one occasion a barrel accidentally spilled onto the pavement and the Veteran was called to assist with the clean-up operations due to a staff shortage. He indicates that over a two-hour period he assisted in removal of the herbicide agent through covering the area with sawdust and shoveling the sawdust into empty barrels, all without available safety equipment, and that at one point he became ill from inhalation of the fumes from the site.

As to evidence or evidentiary sources that would assist in confirming this event, the Veteran's STRs and personnel files do not specifically include reference to the incident. In response to an RO inquiry, the National Personnel Records Center in August 2002 indicated that it did not have any available records for the Veteran of exposure to herbicides.

However, the Veteran contacted the Headquarters of the 88th Air Base Wing Office at Wright-Patterson Air Force Base and in October 2004 obtained information to the effect that at an area identified as "Landfill 12," Agent Orange was disposed. An internet article which that correspondence cross-referenced stated that a disposal area also identified as Landfill 12 was operated from 1968 to 1973, and during the late 1970s was used as a storage place for waste chemicals, including materials contaminated with the "herbicide orange." The Veteran has enclosed a copy of a private corporate environmental impact study which contains similar information.

These records therefore show the presence of Agent Orange at some point in the operation of the Wright-Patterson Air Force Base, in proximity to when the Veteran was located there, even if not directly confirming the alleged incident, or that an instance of actual exposure to Agent Orange occurred beyond anything involving its disposal at an on-site landfill.

The storage of and toxic exposure to an herbicide agent is a matter which as an objective scientific occurrence should be confirmed through official records inquiry. The VA Adjudication Procedure manual sets forth the basis to inquire into potential herbicide exposure other than in the Republic of Vietnam, or Demilitarized Zone (DMZ) in Korea. See M21-1MR, Part IV, Subpart ii, 2.C.10.n. 

The RO reviewed DoD documentation and it did not show any use, testing, or storage of tactical herbicides at any location in Ohio other than a "very limited laboratory process conducted in Painesville, Ohio." From September 1972 to July 1974, three drums of Agent Orange were sent to the Diamond Shamrock Corporation Laboratory in Painesville for a trial program to dispose of Agent Orange in a laboratory setting. Based upon the information supplied by the DoD, VA cannot conclude that the Veteran was exposed to herbicides while serving at Wright Patterson AFB, and therefore presumptive service connection is not warranted. 

However, service connection still may be considered under the theory of direct entitlement. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). Affording the Veteran the benefit of the doubt, the Board will find that his diabetes mellitus had its onset while he was on active duty. Thus, whether he was exposed to herbicides in service is not relevant. 

The Veteran has been diagnosed with diabetes mellitus, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. 

There are two medical opinions of record regarding the etiology of the Veteran's diabetes mellitus. The Veteran's private physician, Dr. R. M., who is certified by the American Diabetes association, found that the Veteran's diabetes had its onset in 1966. In February 2011, Dr. R. M. stated that the Veteran was first diagnosed with diabetes in 1970, "as evidenced by a glucose tolerance test done in that year." He explained that diabetes usually presented with a blood sugar abnormality for up to 10 years after the onset of the disease, and that "[t]his basically means that [the Veteran] most likely had diabetes for a significant time prior to his diagnosis in 1970." 

In March 2011, Dr. R. M. stated that he reviewed the Veteran's clinical records from the 1970s as well as his entrance and separation examination reports. He stated that there was no evidence that any of the blood sugar tests were based upon fasting values, and that glucose tolerance tests were not performed. He stated that "it is not possible to confirm or discount the presence of diabetes mellitus from the blood sugars in either of these medical records," and opined that the Veteran "most likely" had diabetes in June 1966 or sometime prior because "the authoritative medical literature that shows the actual onset of diabetes occurs anywhere from 7 to 15 years prior to the clinical diagnosis." 

In June 2011, Dr. R. M. further clarified his opinion by stating that the Veteran weighed 141 pounds upon entering service and gained 39 pounds during his period of active duty. He believed that this weight gain was an indicator of insulin resistance in a man in his late teens and early twenties. Dr. R. M. noted that there were no proper blood or urine tests administered when the Veteran entered or left service. He reviewed the Veteran's private treatment records from Dr. J. A., who initially diagnosed him with diabetes mellitus. Dr. J. A. observed that the Veteran had elevated blood sugar in December 1970. Further, he was hospitalized twice in 1973 for diabetes complications. Dr. R. M. opined that "[d]iabetes complications severe enough to require admission at such a young age is a strong indicator that his diabetes has been out of control for a considerable period of time." Dr. R. M. noted that the Veteran had a urinary tract infection ("UTI") in November 1971, and that UTIs are rare in young, healthy males, but were seen more commonly in patients with diabetes. Lastly, Dr. R. M. argued that the Veteran lacked the financial means to see a doctor regularly in the late 1960s when he separated from service, and therefore did not have blood sugar or urine glucose tests administered. Dr. R. M. provided a list of medical articles that he used to support his conclusion that diabetes mellitus can be present for up to 12 years prior to clinical diagnosis. 

Dr. R. M.'s opinions provide probative evidence in support of the Veteran's claim.

In November 2010, the Veteran underwent a VA examination. The Veteran reported that the was exposed to Agent Orange in Ohio. The examiner found that the Veteran was diagnosed with diabetes mellitus three years after leaving service and that VA could not concede herbicide exposure. This led the examiner to conclude that it was less likely than not that the Veteran's diabetes mellitus was incurred or aggravated in service. 

In August 2011, the examiner provided an addendum opinion to, in part, respond to Dr. R. M.'s findings. The examiner noted that the Veteran gained 20 pounds over three to six months while in service, and that [i]nterestingly, the patient is 6'2" tall, and this suggests he weighed 121 pounds prior to military service." The examiner argued that Dr. R. M. did not account for the Veteran's height when he opined that his weight gain was due to insulin resistance. The examiner elaborated that the Veteran went from having a slightly underweight body mass index ("BMI") to achieving a healthy BMI, as opposed to developing excess body fat, which is related to insulin resistance. She opined that the Veteran's further weight gain of 20 pounds from 1967 to 1973 caused him to become overweight and put him at risk for becoming insulin resistant. The examiner noted that the STRs were negative for polyuria, weight loss, and other signs of hyperglycemia. She addressed Dr. R. M.'s concerns about the Veteran's UTI in 1971. She agreed that a UTI for a young man is rare, and that diabetes "could" increase the risk of a UTI, but that the Veteran was later treated for prostatitis, which could also cause UTIs. The VA examiner concluded that there is no evidence that diabetes mellitus became manifest within one year of discharge because the Veteran lacked signs or symptoms diabetes during that time. 

The August 2011 opinion of the VA examiner provides probative evidence against the Veteran's claim. However, the three statements from Dr. R. M. are more probative. The Veteran's July 1963 entrance examination reports his weight as 141 pounds. This contradicts the VA examiner's finding that the Veteran weighed 121 pounds prior to service and calls some of her findings into question. The Veteran was diagnosed with diabetes within three years of service and Dr. R. M. explained that it is general medical knowledge that the onset of diabetes can precede its clinical diagnosis by a number of years. He provided examples of medical literature in support of his conclusion. Dr. R. M. and the VA examiner argued over the cause of the Veteran's UTI in November 1971. They agreed that a UTI is rare in a young, healthy male. However Dr. R. M. thought it was an indicator of diabetes and the VA examiner attributed it to prostatitis. The VA examiner also relied on a gap in the Veteran's post-service records by stating that the record was silent with regard to diabetes until 1973, when the Veteran was hospitalized for poorly controlled blood pressure. The Veteran's treatment records from Dr. J. A. in November 1973 note that the Veteran had elevated blood sugar "at least three years ago" and a record from February 1973 notes that it was "felt" the Veteran had diabetes. 

Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). Dr. R. M.'s opinions conclude that the Veteran's diabetes had its onset in 1966 while he was on active duty, satisfying the second and third elements of a service connection claim. Hickson, 12 Vet. App. at 253.

Given the granting of the benefit, any further development or notification action  under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010).

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ORDER

Service connection for diabetes mellitus is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs