Citation Nr: 1761170
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-00 690 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure.

2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to herbicide exposure and/or diabetes mellitus.

3. Entitlement to service connection for prostate cancer and residuals of prostate cancer, to include as secondary to herbicide exposure.

4. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide exposure and/or prostate cancer.

5. Entitlement to service connection for Parkinson’s disease, to include as secondary to herbicide exposure.

REPRESENTATION

Veteran represented by: Vietnam Veterans of America

ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1960 to November 1964.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and March 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

FINDINGS OF FACT

1. The Veteran is not shown to have been exposed to herbicides during his military service.

2. The Veteran’s diabetes mellitus, bilateral lower extremity peripheral neuropathy, prostate cancer, and Parkinson’s disease were not chronic during service, did not manifest to a compensable degree within one year of service separation, and were not continuous since service separation.

3. The Veteran’s diabetes mellitus, bilateral lower extremity peripheral neuropathy, prostate cancer, erectile dysfunction, and Parkinson’s disease are not etiologically related to the Veteran’s service.

CONCLUSIONS OF LAW

1. The criteria for the establishment of service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

2. The criteria for the establishment of service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2017).

3. The criteria for the establishment of service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

4. The criteria for the establishment of service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310(a) (2017).

5. The criteria for the establishment of service connection for Parkinson’s disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has satisfied its duties under the Veteran’s Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

VA’s duty to notify was satisfied by October 2009 and January 2011 letters. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA’s duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran’s service treatment and personnel records, and VA medical records. The Veteran contends that the official transcription of the relevant history as provided by the Air Force Historical Research Agency archivist should be associated with the claims file. However, there is no indication that this evidence would support the Veteran’s claim, as the archivist determined that this evidence did not support the Veteran’s contention that he served in Vietnam. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to decide the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an in-person examination for his Parkinson’s disease in February 2012. The VA examiner provided clear explanations in support of the opinion and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that “examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion”). The VA examination and medical opinion are adequate to decide the Veteran’s claim. However, the Veteran has not been provided with a VA examination for the claims of service connection for diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, and erectile dysfunction. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon, 20 Vet. App. at 81; see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there was no event, injury, or disease related to the Veteran’s diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, and erectile dysfunction that occurred in service. VA, therefore, has no duty to provide medical examinations for these claims.

The case was remanded in February 2016 in order to contact the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. In June 2017, an Air Force Historical Research Agency archivist provided a memorandum detailing the Veteran’s likelihood of exposure to herbicides due to service in Vietnam. Therefore, there is substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

VA has satisfied its duties to notify and assist. The Board may proceed with appellate review.

Service Connection for Diabetes Mellitus, Peripheral Neuropathy Prostate Cancer, Erectile Dysfunction, and Parkinson’s Disease

The Veteran contends that diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, erectile dysfunction, and Parkinson’s disease are the result of his active service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.
§§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Diabetes mellitus, peripheral neuropathy, prostate cancer, and Parkinson’s disease are considered by VA to be a “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. 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.

Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; see also 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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, a veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. The list of diseases that are deemed associated with herbicide exposure includes diabetes mellitus, early-onset peripheral neuropathy, prostate cancer, and Parkinson’s disease 38 C.F.R. § 3.309(e). As erectile dysfunction is not a disease listed under 38 C.F.R. § 3.309 (e) for presumptive service connection, the Veteran must establish service connection based on herbicide exposure with proof of direct causation.

In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, the veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975;
(2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R.
§§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). For CAD, the prescribed time period within which the disease must manifest to a compensable degree is any time after service. 38 C.F.R. § 3.307(a)(6)(ii).

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran contends his diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, erectile dysfunction, and Parkinson’s disease are a result of exposure to Agent Orange during service and has presented two theories of exposure. First, the Veteran contends he was exposed to Agent Orange in Okinawa. Alternatively, the Veteran contends that his military occupational specialty (MOS) required servicing of planes in Vietnam. The Veteran also contends that his peripheral neuropathy is a result of his diabetes mellitus, and that his erectile dysfunction is a result of his prostate cancer residuals. Although the Veteran has current diagnoses of diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, erectile dysfunction, and Parkinson’s disease, the evidence does not show that the Veteran was exposed to herbicides during service, or that his current disorders are otherwise related to service.

The Veteran did not serve in, nor is there evidence that he was ever temporarily sent to Vietnam. Firstly, in his March 2004 application for compensation, the Veteran specifically denied having served in Vietnam (see block 15a, VA Form 21-526). The Veteran’s report is both highly probative as he is the source of the information and patently contradicts his current assertions. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

The Veteran’s service personnel records reflect that he served in Okinawa as Aircraft Mechanic with the 51st Organizational Maintenance Squadron (OMS) from May 1963 to February 1964. However, these records are absent of any evidence showing that the Veteran had foreign service anywhere other than Okinawa. There is also no evidence that the Veteran had any job qualifications indicating that he would have been sent to Vietnam on temporary duty.

The RO sought to verify the Veteran’s reported in-service herbicide exposure by making a JSRRC request. The JSRRC concluded that herbicide exposure could not be found in the Veteran’s case. The Air Force archivist noted that records indicate C-130’s serviced by the Veteran’s unit were flown to Vietnam, but the records do not mention of sending any maintenance support personnel to Vietnam. The archivist further noted that records indicate that members of the 51st OMS were sent to certain locations to support C-130s, but that there was no specific mention of Vietnam as such a location.

The Veteran has submitted several articles from the internet in support of his assertion that he was exposed to herbicides during his service in Okinawa. However, the articles do not demonstrate his in-service herbicide exposure.
In this regard, the Veteran submitted an article from the Marine Corps Times indicating that the Board found in a prior decision that there was “a reasonable probability” that veterans were exposed to dioxins while serving in Okinawa. The Veteran also submitted articles highlighting the use of herbicides outside of Vietnam, to include in the Korean demilitarized zone, Fort Drum, Guam, Johnston Atoll, Panama Canal Zone, Elgin Air Force Base, and Wright-Patterson Air Force Base. The Veteran has also cited an online article indicating that the Armed Forces Expeditionary Medal was issued for initial operations in South Vietnam, Laos, and Cambodia during the early years of the Vietnam War.

To the extent that the Veteran has submitted articles which include the reports of other service members regarding the presence of herbicides on Okinawa, these articles do not demonstrate that the Veteran in this case was exposed to herbicides during service. The articles cited by the Veteran do not provide evidence supporting the presence of herbicides in Okinawa, nor that the Veteran himself was exposed to herbicides while stationed in Okinawa. Further, to the extent that the Veteran argues that his alleged in-service herbicide exposure in Okinawa should be recognized based on determinations made in claims for benefits made by other veterans, prior Board decisions are not precedential and the decision as to one appellant can have no precedential weight in the decision for a different veteran. 38 C.F.R. § 20.1303. Board decisions must be made based on the particular facts and applicable legal authority specific to the case before it. Id. The competent, probative evidence in this case does not demonstrate that the Veteran was exposed to herbicides during service. Therefore, service connection for diabetes mellitus, peripheral neuropathy, prostate cancer, and Parkinson’s disease are denied on a presumptive basis.

The Veteran is not, however, precluded from proving entitlement to service connection on a direct basis. See Combee v. Brown, 5 Vet. App. 248 (1993). He has not, however, asserted that his diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, erectile dysfunction, and Parkinson’s disease are directly related to service. Service treatment records are negative for complaints regarding or findings of diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, prostate cancer, erectile dysfunction, and Parkinson’s disease and the Veteran has not provided, or alluded to, any opinions or evidence in support of a claim for direct service connection. In August 2013, the Veteran’s VA physician opined that the Veteran’s diabetes mellitus, peripheral neuropathy, prostate cancer, and Parkinson’s disease are associated with the exposure to Agent Orange during active service. However, this opinion goes to the nexus element of service connection. As the Board has determined the Veteran was not exposed to herbicides in service, this opinion is not probative.

Further, while diabetes mellitus, peripheral neuropathy, prostate cancer, and Parkinson’s disease are “chronic diseases” listed in 38 C.F.R. § 3.309(a), the Veteran has not asserted, nor does the record reflect, a continuity of symptomatology of these disorders since service. Accordingly, service connection on a direct basis or based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. 38 U.S.C. § 3.303 (b) is not warranted.

There is also no indication that the Veteran’s diabetes mellitus, peripheral neuropathy, prostate cancer, and Parkinson’s disease were manifested to a compensable degree within one year of separation from service. Rather, the first instance of diabetes mellitus in the Veteran’s treatment records was in July 2006. The Veteran’s treatment records also indicate his neuropathy is a result of his diabetes mellitus. The Veteran was diagnosed with prostate cancer in October 2008. While the Veteran’s September 1964 separation examination note “nervousness, manifested by trembling hands,” the Veteran’s treatment records are absence of any further symptoms of Parkinson’s disease until July 2007. Therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § § 3.307, 3.309. As erectile dysfunction is not a “chronic disease” listed under 38 C.F.R. § 3.309(a), the presumptive provisions at 38 C.F.R. § 3.303(b) do not apply.

The Veteran also contends that his erectile dysfunction is a result of his prostate cancer residuals, and that his peripheral neuropathy is due to his diabetes mellitus. However, as the Board has determined that the Veteran’s prostate cancer and diabetes mellitus are not related to his active service, service connection on a secondary basis is not appropriate.

Accordingly, the Veteran’s claims are denied. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

ORDER

Service connection for diabetes mellitus is denied.

Service connection for peripheral neuropathy of the bilateral lower extremities is denied.

Service connection for prostate cancer and residuals of prostate cancer is denied.

Service connection for erectile dysfunction is denied.

Service connection for Parkinson’s disease is denied.

____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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