Citation Nr: 0610194 Decision Date: 04/07/06 Archive Date: 04/13/06 DOCKET NO. 04-19 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for diabetes mellitus, including secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran served on active duty in the military from December 1966 to December 1970. This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The veteran's claims file subsequently was transferred to the RO in Phoenix, Arizona, since he relocated, and that office forwarded the appeal to the Board. Other records show the veteran also filed a claim in October 2005 for service connection for neuropathy, including secondary to diabetes mellitus. This additional claim, however, has not been adjudicated by the RO - much less denied and timely appealed to the Board. 38 C.F.R. § 20.200 (2005). So it is referred to the RO for appropriate development and consideration, as the Board does not currently have jurisdiction to consider it. Aside from the claim for diabetes mellitus, also at issue are additional claims for service connection for thyroid removal and coronary artery disease. These additional claims, however, must be further developed before being decided. So, for the reasons discussed below, they are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. The veteran served in Vietnam during the Vietnam era, so exposure to Agent Orange is presumed. 2. His diabetes mellitus is related to that exposure. CONCLUSION OF LAW The veteran's diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) was signed into law on November 9, 2000. It since has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, and the implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in his possession that pertains to the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1) (2004). Id., at 121. But according to VA's General Counsel (GC), the Pelegrini II holding does not require that VCAA notification contain any specific "magic words." See VAOPGCPREC 7-2004 (July 16, 2004); see also VAOPGCPREC 1-2004 (February 24, 2004). Pelegrini II also held in part that, to the extent possible, VCAA notice, as required by 38 U.S.C.A. § 5103, must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ or RO) decision on a claim for VA benefits. Recently, in Dingess v. Nicholson, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess v. Nicholson, Nos. 01-1917, 02-1506, 2006 WL 519755 (Vet. App. March 6, 2003). Here, the Board is granting the veteran's claim for the reasons discussed below. So despite the inadequate notice provided him concerning the elements to establish a disability rating and effective date for the disability on appeal, this is nonprejudicial - and therefore at most harmless error - inasmuch as he is receiving the requested benefit irrespective of this. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, i.e., the RO, the Board must consider whether the veteran has been prejudiced thereby). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984)). See, as well, Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence) and Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice). A veteran is entitled to service connection for disability resulting from a disease or injury incurred in or aggravated in the line of duty while in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2005). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Diabetes mellitus will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). See 38 C.F.R. § 3.307(a). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the service involved duty or visitation in the Republic of Vietnam. Furthermore, the diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service. They are: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). The Board notes additionally that, as a result of amendments to 38 C.F.R. § 3.309(e), Type-II Diabetes Mellitus was added to the list of diseases for which presumptive service connection can be established. The change was effective July 9, 2001. See 66 Fed. Reg. 23166, 23169 (May 8, 2001). A presumption of service connection based on exposure to herbicides is not warranted, however, for any condition for which the Secretary of VA has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). The diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda must have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishing entitlement to service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The veteran's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 2 years, 3 months, and 25 days of foreign service. He received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. His Military Occupational Specialty (MOS) was aircraft fuel system mechanic. His Airman Military Record indicates his foreign service was in Japan, from January 1968 to April 1970. A letter associated with the veteran's service personnel records states he was awarded the Vietnam Service Medal "for duty performed in support of combat operations in and/or over the Republic of Vietnam." Records from North Clinic show the veteran was diagnosed with non-insulin dependent diabetes mellitus in July 1993. There are additional records from this facility dated up to and including July 2002. Records from Cardiovascular Consultants, dated from June 1996 to October 1999, and records from Deer Valley Family Practice, dated from January 2002 to March 2005, show a history of treatment for non-insulin dependent diabetes mellitus. In several written statements, and according to an August 2005 Report of Contact, the veteran said he worked in aircraft maintenance during his military service. He also stated he was stationed in Japan but was sent on several temporary duty (TDY) assignments to Vietnam and Thailand to drop supplies, flares, and mark targets. During his October 2005 Travel Board hearing, the veteran reiterated these allegations concerning his trips to Vietnam. He testified that he was stationed at Naha Air Base in Okinawa, Japan, during service, but that while stationed in Japan he had TDY in Udon, Thailand and in Ton Son Nhut, Vietnam. He said he worked on planes on the flight line, as well as loaded and unloaded supplies, delivered items to outposts, and flew on "flare missions." He also said that foliage in the tarmac areas in Vietnam was sprayed with Agent Orange to kill the grass. Resolving all reasonable doubt in his favor, the Board finds there is sufficient evidence supporting the veteran's contention that his diabetes mellitus is causally related to the Agent Orange exposure he presumably experienced during service, specifically in Vietnam. Although his personnel records concerning his claimed TDY assignments are not on file, thus precluding their independent confirmation, he nonetheless had credible testimony - under oath, during his October 2005 Travel Board hearing as to the exact nature and locations of his TDYs, including those to Vietnam. More importantly, his DD Form 214 and associated letter confirm he received the Vietnam Service Medal specifically for duty in and/or over the Republic of Vietnam. So he is entitled to the presumption of Agent Orange exposure while there - which, combined with the diagnosis of diabetes mellitus, means he is entitled to the presumption of service connection for this condition. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for diabetes mellitus, secondary to Agent Orange exposure, is granted. REMAND The Board also observes the veteran's claims for service connection for thyroid removal and coronary artery disease were denied in a November 2002 rating decision by the RO. And in September 2003, in response, he submitted a letter indicating that he disagreed with, and intended to appeal, the November 2002 decision denying these claims, as well as his claim for service connection for depression. He subsequently withdrew his claim for depression, per se, in his May 2004 VA Form 9, indicating instead that he was claiming post-traumatic stress disorder (PTSD) from his service in Vietnam. This claim since has been adjudicated and denied by the RO in September 2005. He never withdrew his other claims for thyroid removal and coronary artery disease, however. See 38 C.F.R. § 20.204(b), (c) (2005). The September 2003 statement was a timely notice of disagreement (NOD) with the RO's November 2002 decision denying service connection for thyroid removal and coronary artery disease. So these claims must be remanded to the RO for issuance of a statement of the case (SOC), as opposed to merely referred there. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The veteran also must be given an opportunity to perfect an appeal to the Board concerning these additional issues by submitting a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305. Accordingly, these claims are REMANDED to the RO (via the AMC) for the following development and consideration: Send the veteran and his representative an SOC on the remaining issues of entitlement to service connection for thyroid removal and coronary artery disease. Advise them he still needs to file a timely substantive appeal (e.g., a VA Form 9) concerning these additional claims, if he wants the Board to consider them, and inform him of the time limit for doing this. If, and only if, he submits a timely substantive appeal concerning these additional issues should they be returned to the Board for further appellate consideration. The purpose of this remand is to further develop the record, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran has the right to submit additional evidence and/or argument concerning the claims that are being remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of him until he is notified. The claims 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs