Citation Nr: 1749138	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-24 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type II (DM), to include as secondary to exposure to herbicide agents.

2.  Entitlement to service connection for bilateral hand numbness, to include as secondary to DM.

3.  Entitlement to service connection for bilateral foot numbness, to include as secondary to DM.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jane R. Lee, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1970 to July 1970, from August 1970 to August 1972, and from May 1975 to August 1992.

This appeal is before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for DM, bilateral hand numbness, and bilateral foot numbness.

In July 2016, the Board remanded the issues for further evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

In this case, the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand instructions by obtaining updated VA treatment records and readjudicating the claims in an August 2016 Supplemental Statement of the Case (SSOC).

The issues of service connection for bilateral hand and foot numbness are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's service in Vietnam is not confirmed, and thus exposure to herbicide agents cannot be presumed.

2.  The evidence does not show that the Veteran's DM was incurred in, or resulted from, active duty service, to include as secondary to in-service herbicide agent exposure; or manifested within one year from separation of service.
CONCLUSION OF LAW

The criteria to establish service connection for DM are not met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Matter

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 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 representative of any information, and any 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); 38 C.F.R. § 3.159 (b). 

The Veteran's primary contention is that his claimed disabilities are related to exposure to herbicide agents during active service in Vietnam.  The Veteran's representative indicates that another search for deck logs is needed in this case to help substantiate that the Veteran set foot in the Republic of Vietnam.  However, as will be discussed in further detail below, the Board finds that another search is not indicated, as a full search through a different appropriate agency has already been conducted.  

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
II.  Service Connection Claim for DM

Service connection may be granted for a 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).  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).  Service connection requires:  (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Pertinent here, DM is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Additionally, where a veteran served 90 days or more of active service, and a certain chronic disease, such as DM, becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War.  Specifically, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 that service.  "Service 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), 3.309(e).  In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam.

Certain diseases are deemed associated with herbicide agent exposure under VA law and shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though 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.  Currently, DM is included in this list of diseases.  See 38 C.F.R. § 3.309(e).

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

In this case, the Veteran contends that he was given shore leave for 48 hours in the winter of 1971 when the USS Knox anchored in Da Nang Harbor, at which time he explored the city for the full two days.  See 6/22/09 Statement in Support of Claim.  In his August 2010 Notice of Disagreement (NOD), he stated that the USS Knox docked at Da Nang Harbor in October to November 1971 for refueling and provisioning, at which time the crew was given 48-hour leave; and returned to Da Nang again in November to December 1972, at which time the Veteran again was given 48-hour shore leave.  In February 2011, the Veteran corrected that date, noting a typographical error and stating that it was November or December 1971, and not November to December 1972.  He also noted that the USS Knox docked on November 25, 1971, Thanksgiving Day, and left port the next day after picking up specialty equipment repair parts and refueling.

PIES found that the Veteran served aboard the USS Knox (DE 1052), which was in the official waters of the Republic of Vietnam from October 29, 1970, to November 8, 1970; November 18, 1970, to December 6, 1970; December 12, 1970, to December 19, 1970; December 27, 1970, to January 7, 1971; February 2, 1971, to February 20, 1971; October 1, 1971, to October 2, 1971; and November 16, 1971, to December 19, 1971.  However, the record provided no conclusive proof of in-country service.  Thus, it could not be determined whether the Veteran served in the Republic of Vietnam.

In response to a January 2010 letter requesting duties of the USS Knox (DE 1052) from January 1, 1971, to February 28, 1971, specifically anchoring in Da Nang Harbor and giving its crew shore leave for 48 hours, the National Archives and Records Administration (NARA) responded that a search of Records of the Bureau of Naval Personnel, specifically the ship logs of USS Knox (DE 1052) from January through February 1971, were negative.

An April 2010 Formal Findings of a lack of information required to corroborate herbicide agent exposure stated that the Veteran's ship was negative for any signs of "Brown Water" in the Dictionary of American Naval Fighting Vessels.  Ship logs were negative for Vietnam service or "Brown Water." A Memorandum For Record from Joint Services Records Research Center (JSRRC) dated May 1, 2009, noted that no evidence was found indicating that Navy or Coast Guard ships transported tactical herbicides, such as Agent Orange, from the U.S. to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides.  As such, there was not enough evidence to corroborate exposure to herbicide agents.

In March 2011, a search to verify whether the USS Knox docked at Da Nang on November 25, 1971, was requested.  A JSRRC search revealed that the USS Knox continued on a Western Pacific (WESTPAC) deployment, which commenced in October 1970.  It conducted operations in the Gulf of Tonkin as an Anti-Submarine Warfare platform, aircraft carrier escort destroyer on Yankee Station, and radar platform to monitor the air situation over various parts of the South China Sea during periods from October 29 to November 8, 1970; November 18 to December 6, 1970; December 12 to 19, 1970; December 27, 1970, to January 9, 1971; January 14 to 26, 1971; and from January 31 to February 27, 1971.  The USS Knox then returned to Pearl Harbor, Hawaii, on March 7, 1971, and departed for a WESTPAC deployment on September 11, 1971, and conducted a period of operations in the Gulf of Tonkin from November 16 to December 19, 1971, and arrived in Subic Bay, Republic of the Philippines for a port of call on December 28, 1971, where she remained for the rest of the year.  A review of the deck logs for the USS Knox from October 20 through December 19, 1971, did not document that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam.

Service treatment records include March 1969, July 1972, April 1977, May 1987, and July 1992 examination reports that reflect that the Veteran was negative for albumin and sugar in his urine.  November 1979, June 1982, August 1988, September 1989, September 1990, September 1991, and June 1992 Dental Health Questionnaires reflect that the Veteran denied having a diagnosis of DM.

An August 2009 VA treatment record notes that the Veteran was recently diagnosed with DM, which was assessed as controlled.

In the October 2017 Informal Hearing Presentation, the Veteran contended that he was exposed to herbicide agents while in Da Nang Harbor on two occasions.  He stated that the crew of the U.S.S. Knox (DE 1052) was given 48 hours of shore liberty on both occasions in November and December 1971 and again in November 1972.  He contended that the January 2010 letter to NARA noted the dates to search as January 1, 1971, to February 28, 1971, which were the wrong dates as the Veteran reported being in Da Nang Harbor in November and December 1971, specifically Thanksgiving Day on November 25, 1971.  As such, he states that a new search in the deck logs of the USS Knox must be conducted for the period of November 1, 1971, to December 31, 1971.

Based on a review of all of the evidence of record, lay and medical, the Board finds that the evidence weighs against finding in favor of the Veteran's service connection claim for DM.

As an initial matter, the Board finds that the Veteran has a current diagnosis of DM.  A veteran satisfies the current disability requirement if he has such disability at any time during the pendency of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

However, the Board finds that service in Vietnam during the Vietnam Era is not confirmed, and thus exposure to herbicide agents cannot be presumed.  Despite the Veteran's contentions that he set foot in the Republic of Vietnam, any such service cannot be confirmed.  PIES confirmed that the Veteran served aboard the USS Knox, which was in official waters of the Republic of Vietnam for periods of time from October 29, 1970, to December 19, 1971.  However, the USS Knox is not listed as associated with service in Vietnam and exposure to herbicide agents.  See Vietnam Era Navy Ship Agent Orange Exposure Development Site.  It was also negative for any signs of "Brown Water" in the Dictionary of American Naval Fighting Vessels.  Furthermore, deck logs from a JSRRC search do not document that the ship docked or transited inland waterways, or that personnel stepped foot in the Republic of Vietnam.

The Board acknowledges the argument raised by the Veteran's representative that a new search of the USS Knox's deck logs is required for the period of November 1, 1971, to December 31, 1971.  However, although the incorrect dates were provided to NARA, the correct time period was provided for a JSRRC search, which resulted in a detailed explanation of the deployment dates of the USS Knox, including November and December 1971.  As such, the Board finds that an additional search of the deck logs of the USS Knox, which was already done by JSRRC, is not required.  Moreover, JSRRC did not indicate that its search was in any way incomplete, nor did it recommend that the RO request a search with any other agency.  JSRRC's search results were complete and thorough and thus another search for the same information from another agency is not appropriate.

Additionally, STRs do not reflect any treatment or diagnosis of DM during service.  In fact, the Veteran consistently had normal urinalysis results throughout his time in service, and consistently denied any diagnosis or treatment of DM.  He also has not shown any actual exposure to herbicide agents during active duty service.

Furthermore, the first indication of any kind of treatment or diagnosis of DM was in 2009, 17 years after separation from service.  As such, the evidence does not indicate that it manifested within one year from separation of service or resulted in chronic or continuous symptomatology.

Finally, there is entirely no competent evidence of a nexus directly relating the Veteran's current DM to his period of service.  

In summary, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for DM.  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 claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.


ORDER

Entitlement to service connection for DM, to include as secondary to exposure to herbicide agents, is denied.

REMAND

Further development is necessary prior to analyzing the merits of the remaining claims on appeal.

VA examinations are needed to determine the likely etiology of the Veteran's claimed bilateral hand and foot numbness.  In the Veteran's May 2009 claim, he reported numbness and tingling in his bilateral hands and feet, and requested that they be service-connected as secondary to his DM.  Although the claim for DM is denied above, the Veteran can also be service-connected for bilateral hand and foot numbness on a direct service connection basis.

An October 1991 STR reflects that the Veteran complained of hand and leg aches, and was assessed with a nerve issue.  On his July 1992 separation report of medical history, the Veteran stated that he did not know if he had neuritis, and the examiner noted occasional aching hands.

Additionally, VA treatment records reflect indications of diabetic peripheral neuropathy, diminished sensation in his bilateral feet, and both cervical and lumbar radiculopathy.  However, it is not clear whether any of those issues were formerly evaluated and diagnosed, or whether they were merely based on the Veteran's self-reports.

Given the vague and unclear diagnoses, especially with indications of possible in-service nerve issues with the upper and lower extremities, a VA examination is required in order to evaluate the nature and etiology of the Veteran's claimed bilateral hand and foot numbness.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Provide a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran's claimed bilateral hand numbness.  The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand.

Although a complete review of the record is imperative, attention is called to the following:

*The Veteran's STRs, including his March 1969, July 1972, April 1977, and May 1987 examination reports reflect normal upper extremities, normal neurologic evaluations, and the Veteran's denials of neuritis.

*The October 1991 STR reflecting the Veteran's complaint of hand aches, finding of normal bilateral upper extremities, and an assessment of a nerve issue.

*The July 1992 separation report of medical history in which the Veteran stated that he did not know if he had neuritis; the examiner found that the Veteran had normal upper extremities and a normal neurologic clinical evaluation, but noted occasional aching hands.

*The May 2009 claim where the Veteran reported numbness and tingling in both hands.

*VA treatment records dated February 2010 noting the Veteran's concern with his diabetic peripheral neuropathy.

*VA treatment records dated August 2010, March 2011, January 2012, and August 2013 reflecting normal extremities.

*VA treatment records dated September 2014 and August 2015 noting cervical radiculopathy and reflecting extremities within normal limits.

*A March 2016 VA treatment record noting DM complicated by neuropathy for five years, cervical radiculopathy, and probably some diabetic neuropathic pain; and extremities within normal limits.

After reviewing the claims file in its entirety, the examiner is asked to address the following:

a)  Clarify the current diagnoses, if any, involving the Veteran's claimed bilateral hand numbness, including any radiculopathy or neuropathy, diabetic or otherwise. 

b)  Provide an opinion FOR EACH current diagnosis as to whether it at least as likely as not had its onset during active service or is otherwise related to it.  In doing so, reconcile the opinion with all evidence of record, to include the STRs.

A complete rationale should be provided for any opinion provided.  If the examiner cannot provide any of the above opinions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies.  If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

2.  Provide a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran's claimed bilateral foot numbness.  The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand.

Although a complete review of the record is imperative, attention is called to the following:

*The Veteran's STRs, including his March 1969, July 1972, April 1977, and May 1987 examination reports reflect normal lower extremities and feet, normal neurologic evaluations, and the Veteran's denials of neuritis and foot trouble.

*The October 1991 STR reflecting the Veteran's complaint of leg aches, finding of normal bilateral legs, and an assessment of a nerve issue.

*The July 1992 separation report of medical history in which the Veteran stated that he did not know if he had neuritis but denied foot trouble; the examiner found that the Veteran had normal lower extremities and feet and a normal neurologic clinical evaluation.

*The May 2009 claim where the Veteran reported numbness and tingling in both feet.

*VA treatment records dated February 2010 noting the Veteran's concern with his diabetic peripheral neuropathy.

*VA treatment records dated August 2010, March 2011, January 2012, and August 2013 reflecting normal extremities, including the feet.

*VA treatment records dated September 2014 and August 2015 reflecting extremities within normal limits, although the Veteran had diminished sensation in both his feet, which was worse on the right.

*A March 2016 VA treatment record noting DM complicated by neuropathy for five years, lumbar radiculopathy, probably some diabetic neuropathic pain; and extremities within normal limits, and diminished sensation in his feet.



After reviewing the claims file in its entirety, the examiner is asked to address the following:

a)  Clarify the current diagnoses, if any, involving the Veteran's claimed bilateral foot numbness, including any radiculopathy or neuropathy, diabetic or otherwise. 

b)  Provide an opinion FOR EACH current diagnosis as to whether it at least as likely as not had its onset during active service or is otherwise related to it. In doing so, reconcile the opinion with all evidence of record, to include the STRs.

A complete rationale should be provided for any opinion provided.  If the examiner cannot provide any of the above opinions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies.  If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

3.  Readjudicate the Veteran's claims for service connection for bilateral hand and foot numbness.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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