Citation Nr: 1749061	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-06 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides.

2.  Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II.

3.  Entitlement to service connection for a bilateral eye disorder.


ATTORNEY FOR THE BOARD

Gregory T. Shannon, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the United States Navy from April 1969 to September 1993.  The Veteran was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Southwest Asia Service Medal with Bronze Star.

This case comes before the Board of Veterans' Appeals (the Board) from February 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.

The Board remanded the Veteran's claims in March 2014, July 2015 and August 2016 for further development.


FINDINGS OF FACT

1.  The Veteran was present within the land borders of Vietnam.  

2.  The Veteran has diabetes mellitus.

3.  Erectile dysfunction is caused by the Veteran's service connected diabetes mellitus. 

4.  The Veteran has refractive error of the eyes. 


CONCLUSIONS OF LAW

1.  Diabetes mellitus is presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016).

2.  Erectile dysfunction is proximately due to the Veteran's service connected diabetes mellitus.  38 C.F.R. § 3.310(a) (2016).

3.  Refractive error is not a disease or injury for compensation purposes.  38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice and assistance with respect to the Veteran's claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016).  However, in light of the fully favorable decision as to the issues of service connection for diabetes mellitus and erectile dysfunction, no further discussion of compliance with VA's duty to notify and assist is necessary.

II.  Service Connection 

i.  Laws and Regulations 
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

Establishing service connection generally requires evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

The Veteran did not serve in combat and the provisions of 38 U.S.C.A. § 1154(b) are not applicable. 
 
Service connection may also 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).  

Service connection may also be established on a secondary basis.  Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310.

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 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.  38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as diabetes mellitus, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. § 3.309(e).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  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.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, 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, 511-12 (1995).

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

ii.  Diabetes mellitus 

The Veteran contends, in pertinent part, that he developed diabetes mellitus due to exposure to herbicides during service in Vietnam.  The Veteran's service personnel records show that he was awarded the Vietnam Service Medal, but do not indicate service in country in Vietnam.

The Veteran has repeatedly reported that he set foot in Da Nang, Vietnam on two occasions, in May 1970 and June 1971, in route to Clark Air Base, Philippines via plane.  The Veteran is competent to report setting foot in Vietnam, while waiting for a plane, and going to the Philippines.  (We also note that the available service records would have had him in continuous sea duty, for a period of years, without ever leaving the ship.)

Portions of the Veteran's service personnel records are illegible.  Based on what is legible, the records do not indicate the Veteran was sent to Clark Air Base, Philippines by plane on official duty in May 1970 or June 1971.  However, the Board notes the Veteran enlisted in the Philippines, was a citizen of the Philippines in 1970 and 1971, and ships he served on had port visits in the Philippines.  Furthermore, deck logs confirm the Veteran served in waters within 100 miles of Da Nang in May 1970.  In light of this the Board finds the Veteran's statements credible and finds that he did step foot in Vietnam.

The Board notes that the medical evidence of record documents diabetes mellitus.  See October 2008 VA examination.  The October 2008 examiner noted the Veteran's diabetes was treated with a restricted diet and insulin.  

Based on the Veteran's service in Vietnam, he must be presumed to have been exposed to an herbicide agent. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307.  Additionally, as there is no affirmative evidence of non-exposure, the Veteran is deemed to have been so exposed.  Accordingly, as he is also shown to have subsequently developed compensable diabetes mellitus, service connection for this disability is warranted.  38 C.F.R. §§ 3.307, 3.309(e) and 4.119, Diagnostic Code 7913.

iii.  Erectile dysfunction

The Veteran contends, in pertinent part, that he developed erectile dysfunction secondary to diabetes mellitus.  After a review of the evidence of record, the Board finds the Veteran is entitled to such secondary service connection.

The Veteran has a current disability of diabetes mellitus, which is service connected, per this decision.  The Veteran also has a current disability of erectile dysfunction.  See February 15, 2007 treatment notes from Tripler Army Medical Center.   

Upon examination in October 2008, a VA examiner confirmed a current diagnosis of erectile dysfunction.  The examiner opined the Veteran's erectile dysfunction is at least as likely as not due to his diabetes.  In support of this opinion, the examiner stated that it is noted in medical literature that erectile dysfunction can be a consequence of diabetes mellitus.  The examiner further stated that the Veteran's erectile dysfunction occurred after the onset of diabetes and that "[t]here is no other identifiable medical condition at the onset of his erectile dysfunction that could be a cause of his erectile dysfunction." 

In light of the above, the preponderance of the evidence weighs in favor of the Veteran's secondary service connection claim.  As such, service connection for erectile dysfunction, as secondary to diabetes mellitus, is warranted.

iv. Eye

The Veteran has diminished visual acuity.  However, he has a refractive error.  Refractive errors are not diseases or injuries within the meaning of the law providing compensation benefits.  38 C.F.R. § 3.303.  Since there is no evidence of acquired pathology, service connection is denied.  To the extent that there was non-compliance with the prior remand, such non-compliance is harmless, since there is an abnormality that is not subject to service connection.  (We also note that refractive error is in its own class and is not a congenital or developmental defect; rather, the regulation speaks to refractive error as a distinct process.) 



ORDER

Entitlement to service connection for diabetes mellitus due to herbicide agent exposure is granted.

Entitlement to service connection for erectile dysfunction secondary to diabetes mellitus is granted.

Entitlement to service conection for an eye disorder is denied.




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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