Citation Nr: 1521304 Decision Date: 05/19/15 Archive Date: 05/26/15 DOCKET NO. 13-24 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for coronary artery disease, to include as due to herbicide exposure ("heart disability"). 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure ("diabetes"). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1971 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The Veteran did not have active military service on Vietnam, Thailand, along the DMZ, or any other location determined to have been exposed to an herbicide agent. 2. A heart disability was not manifest in service, may not be presumed to have been incurred therein, has not been productive of symptoms continuously since service, or to a compensable degree within one year of service discharge, and any current heart disability is not otherwise etiologically related to such service. 3. Diabetes mellitus was not manifest in service, may not be presumed to have been incurred therein, has not been productive of symptoms continuously since service, or to a compensable degree within one year of service discharge, and any current heart disability is not otherwise etiologically related to such service. CONCLUSIONS OF LAW 1. The Veteran's heart disability was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 2. The Veteran's diabetes mellitus, type II was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he has a heart disability and diabetes as a result of service. Specifically, he contends that he was exposed to herbicide agents in-service. For the reasons that follow, the Board finds that neither the Veteran's heart disability nor his diabetes manifested during service, may not be presumed to have been incurred therein, or to a compensable degree within one year of separation from service and is not related to any incident of service. The Board concludes that service connection is not warranted for a heart disability or diabetes. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence 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) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran's diagnosed heart disability and diabetes are listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Presumptive Service Connection for a heart disability and diabetes The Veteran claims that his heart disability and diabetes is related to service because he was exposed to herbicides in service. Specifically, he claims that he was exposed to herbicides while stationed at Travis Air Force base in California, because was around planes and cargo that carried and sprayed Agent Orange in Vietnam. As the Veteran does not have the requisite service in Vietnam that falls under the presumptive statute, the Veteran's claim of service connection on a presumptive basis must be denied. A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2014)." Service in the Republic of Vietnam" includes service in the waters offshore ("brown water") and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. §§ 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6); 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. Claims based on Agent Orange exposure are unique in that entitlement is based on an analysis of scientific evidence, ordered by statute. 38 U.S.C.A. § 1116(b). The Agent Orange Act of 1991 (in part) directed the Secretary of Veteran Affairs to enter into an agreement with the National Academy of Science (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. Whenever the Secretary determines that a positive association exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he must publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116(b)-(c). The Secretary has reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 32,540 (June 8, 2010). Based on the NAS committee report, Veterans and Agent Orange: Update 2008, the Secretary added additional disorders to the list of those for which the presumption of service connection is available. See 75 Fed. Reg. 52,303 (Aug. 31, 2010). Additional amendments have been enacted and public notices provided based on Veterans and Agent Orange: Update 2010. See 75 Fed. Reg. 81,332 (Dec. 27, 2010); 77 Fed. Reg. 47,924 (Aug. 10, 2012); 78 Fed. Reg. 54,763 (Sept. 6, 2013). The Veteran has not claimed that he was ever in Vietnam, Thailand, or along the DMZ in Korea; instead, he claims that he was exposed to herbicides while stationed in the US, because he was around planes that he believes carried sprayed herbicide agents in Vietnam. "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or 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); See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. The Veteran's sole contention is that his service at Travis Air Force Base, Clark Air Force Base in the Philippines and Hickam Air Force Base in Hawaii put him in contact with aircraft that was exposed to Agent Orange. A memorandum in the file from the JSRRC notes that JSRRC cannot document or verify that a veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. See Procopio v. Shinseki, 26 Vet. App. 76, 85 (2012)(explaining that this memo serves as a substitute for individual inquiries based on claims of exposure to tactical herbicides based on contact with aircraft or equipment that ws used in Vietnam and any remand to request further evidence of exposure based on these claims would be futile). Based upon the evidence of record that the Veteran did not serve either in-country during the Vietnam War or on the "brown waters" of Vietnam, the Veteran's claim for service connection on a presumptive basis must be denied. 38 C.F.R. 3.309(e). The preponderance of the evidence does not support presumptive service connection for a heart disability and the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Direct Service Connection for a heart disability and diabetes Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board will now turn to address the Veteran's heart condition and diabetes on a direct service connection basis. The Veteran claims service connection for a heart disability and diabetes. As noted above, the Veteran has been diagnosed with coronary heart disease and diabetes. A review of the Veteran's service treatment records does not reveal a diagnosis or treatment of a heart disability or diabetes in service. The Veteran's Report of Medical Examination from February 1975 completed at separation shows that the Veteran's vascular system was normal upon clinical evaluation and a urinalysis examination was negative for albumin and sugar; his endocrine system was evaluated as normal. There are no indications on his separation examination that the examiner suspected the Veteran to have a heart disability or diabetes. A review of the Veteran's post service treatment notes shows a diagnosis in January 2006 of elevated blood sugar, possible diabetes. In July 2008, the Veteran was diagnosed with borderline diabetes. Finally, in September 2009, the Veteran is diagnosed with diabetes. In August 2010, the Veteran was diagnosed with coronary artery disease. There is no competent medical or lay evidence that shows a heart disability or diabetes mellitus was "chronic" during active service. 38 C.F.R. § 3.303(b). Further, there is no evidence of continuity of symptomatology. The evidence indicates that the Veteran was first diagnosed with diabetes mellitus in 2009 and a heart disability in 2010. See September 2009 Treatment Notes from Ministry Medical Group; August 2010 Treatment Notes from Ministry St. Claire Hospital. There is a lapse of more than 33 years from separation from service until the Veteran was diagnosed with diabetes mellitus, with an even greater lapse prior to the diagnosis of a heart disability. The Veteran has not alleged that he had any symptomatology in the years between separation and diagnosis that could indicate that hypertension or a heart disability had been continuously present since service separation. The Board concludes that service connection based on continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). Certain chronic diseases, including a heart disability and diabetes mellitus, may be presumed to have occurred in service if manifested to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309(a). However, the presumption of service connection does not apply in this case because, as noted above, the Veteran was discharged in 1975 and there were no identified possible manifestations of a heart disability or diabetes mellitus before 2009. Service connection is not warranted on a presumptive basis. Id. Concerning direct service connection, service treatment records are absent complaints, findings or diagnoses of a heart disability or diabetes during active service. This significant lapse in time between active service and the first evidence of a heart disability or diabetes weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). At most, the Veteran stated that he felt his ailments were related to exposure to herbicides in service. As stated above, service connection based on the presumption for herbicide exposure is not warranted. The Veteran has not identified any particular event, injury, or disease to which his heart disability or diabetes mellitus may be related. He has not offered competent lay evidence, by report of lay observable symptoms, by report of a contemporaneous medical diagnosis, or by describing symptoms supported by a later medical diagnosis. See Jandreau, 492 F.3d at 1377. The Veteran's proffered statements do not identify any basis on which a lay witness could be competent to relate coronary artery disease or diabetes mellitus to any incident of service, other than herbicide exposure. There is no medical evidence, which relates either a heart disability or diabetes mellitus to some incident of service. The normal clinical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim for direct service connection. The Board finds that the Veteran's heart disability and diabetes mellitus are not related to service. Service connection on a direct basis is not warranted. 38 C.F.R. § 3.303(d). In light of the foregoing, the Board concludes that service connection is not warranted for a heart disability or diabetes mellitus on the bases of herbicide exposure presumption, chronicity, continuity of symptomatology, compensable manifestations within one year of separation from service, or nexus to some incident of service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a heart disability or diabetes mellitus, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107. Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through notice letters dated October 2012 and February 2011 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim on both a presumptive and direct basis and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2014); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). A VA examination was not provided in conjunction with the Veteran's service connection claims related to diabetes mellitus, type II or a heart disability, and the Board notes that the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is nothing in the record, other than the Veteran's own lay statements, that corroborates a nexus of the Veteran's currently diagnosed diabetes mellitus or heart disability and an in-service incident or injury, and a VA examination could not serve to establish an in-service event actually occurred. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Service connection for a coronary artery disease is denied. Service connection for diabetes mellitus, type II is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs