Citation Nr: 0933071 Decision Date: 09/02/09 Archive Date: 09/14/09 DOCKET NO. 03-15 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to Agent Orange. 2. Entitlement to a rating higher than 10 percent for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1961 to February 1965 and January 1966 to July 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal rating decisions in November 2002 and in February 2003 a Department of Veterans Affairs (VA) Regional Office (RO). In August 2004, the Veteran appeared at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. In April 2006, the Board remanded the claims for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran visited Vietnam in 1968 and in 1969 and it is presumed that he was exposed to certain herbicides, including Agent Orange. 2. The Veteran is diagnosed with diabetes mellitus, type II, which is associated with exposure to certain herbicides, including Agent Orange, in Vietnam. 3. The current 10 percent rating for tinnitus is the maximum schedular rating for tinnitus, whether tinnitus is perceived in one ear or each ear. CONCLUSIONS OF LAW 1. Diabetes mellitus, type 2, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2008). 2. There is no legal basis for the assignment of a rating higher than 10 percent for tinnitus. 38 U.S.C.A. §1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2008). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. On the claim of service connection for diabetes mellitus, type 2, the Board has determined that the evidence and information currently of record are sufficient to substantiate the Veteran's claim. Therefore, no further development is required to comply with the duties to notify or to assist under the Veterans Claims Assistance Act of 2000. On the claim for increase for tinnitus, the VCAA statutory and regulatory provisions do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). On this claim, the facts are not in dispute. And resolution of the appeal is dependent on interpretation of the regulations pertaining to the assignment of a disability rating for tinnitus. Therefore, the duties to notify or to assist under the Veterans Claims Assistance Act of 2000 do not apply. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Diabetes Mellitus Factual Background The service personnel records show that in two days in July 1968 the Veteran was transferred from California to Thailand. The Veteran was in Thailand from July 1968 to July 1969. In February 1969, the Veteran went from Thailand to Japan for a temporary duty assignment on Flight No. W2W8. On the completion of his assignment in March 1969, he returned to Thailand on a MAC Flight No. V2T7. In two days in July 1969, he was transferred from Thailand to the United States. While in Thailand, the Veteran was authorized to wear the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of diabetes mellitus type 2. After service, private medical records show that in November 2001 and in April 2002, diabetes mellitus was noted by history. In June 2002, the Veteran submitted a statement from a physician assistant of a service department that the Veteran had diabetes mellitus, type 2. In a statement in February 2003, the Veteran stated that in July 1968 he went from Japan to Vietnam to Thailand. In a statement in May 2003, the Veteran stated that he landed in Vietnam four times. In August 2004, the Veteran testified that although he never served in Vietnam, he did set foot in Vietnam on several occasions on flights with the Military Airlift Command (MAC). He stated that his flights from and to the United States stopped in Vietnam and his flight to and from Japan in 1969 also stopped in Vietnam. VA records in 2008 show that the Veteran is on medication for diabetes mellitus. In July 2008, the Veteran submitted copies of pay statements, purporting to show that federal income tax was not withheld for the months of July 1968, February and March 1969, and July 1969, when the Veteran landed in Vietnam so that he was entitled to combat pay. In May 2009, an archivist at the Air Force Historical Research Agency reported that not all the flight manifests and flight plans of MAC civilian contract flights were collected because the records were not considered crucial at the time, and therefore, whether the Veteran's specific flights landed in Vietnam could not be corroborated. It was acknowledged that the historian of the 60th Military Airlift wing, which operated out of Travis Air Force Base, had recorded several flight plans from Travis Air Force Base, California, to and from Bangkok, Thailand, which included stopovers in Saigon, Vietnam. In support of his claim, the Veteran has also submitted e- mails from former servicemen that had taken flights that landed in Vietnam, but not one was on the same flight as the Vietnam. Direct Service Connection Service connection may be granted for 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. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including diabetes mellitus, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis On the basis of the service treatment records, diabetes mellitus, type 2, was not affirmatively shown to have had onset during service, and service connection under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a) is not established. And as there is no competent evidence either contemporaneous with or after service that diabetes mellitus, type 2, was noted during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). After service, the record does show that diabetes mellitus, type 2, was first documented by history in 2001, well beyond the one-year presumptive period following separation from service in 1988 for diabetes mellitus, type 2, as a chronic disease under 38 U.S.C.A. §§ 1112 and 1137. Excluding the question of exposure to Agent Orange, which is further addressed below, there is no competent evidence that diabetes mellitus, type 2, first documented after service beyond the one-year presumptive period, pertaining to a chronic disease, is otherwise related to an injury, disease, or event of service origin. 38 C.F.R. § 3.304(d). Exposure to Agent Orange A veteran who, during active 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 certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). "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, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). If a veteran was exposed to certain herbicides during active service, type 2 diabetes will be presumed to have been incurred in service if manifest to a compensable degree, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Analysis The record shows that the Veteran has type 2 diabetes mellitus, which is a disease subject to presumptive service connection for a veteran who served in Vietnam during the Vietnam conflict and was exposed to Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes visitation in the Republic of Vietnam, that is, within the land borders. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). The record also shows that the Veteran served in Thailand from July 1968 to July 1969. The Veteran testified that he landed in Vietnam on a flight from the United States to Thailand in July 1968, on flights to and from Japan in February and March 1969, while on temporary additional duty, and on a flight from Thailand to the United States in July 1969, all of the times were during the Vietnam era, beginning in January 1962 and ending in May 1975. The remaining question is whether there is competent and credible evidence that the Veteran was actually in Vietnam to trigger the presumption of service connection under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309. Although there is no official record that the Veteran was in Vietnam, the Veteran is competent to describe the events within his personal knowledge, 38 C.F.R. § 3.159(a)(2), that is, he was in Vietnam on a stopover from flights to and from Thailand. The Board finds too that the Veteran's testimony is credible. The Veteran's competent and credible testimony that he landed in Vietnam on a flight to or from Thailand, combined with evidence that the Veteran flew four times to and from Thailand, and while the manifests of the flights are unavailable, an archivist at the Air Force Historical Research Agency reported that the 60th Military Airlift wing, which operated out of Travis Air Force Base, where the Veteran departed in July 1968, recorded several flight plans from Travis Air Force Base, California, to and from Bangkok, Thailand, which included stopovers in Saigon, Vietnam, is favorable evidence. There is no actual evidence against the claim. Cf. Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., and Newman, J., dissenting on grounds not relevant here) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that the absence of actual evidence is not substantive negative evidence). As there is no substantive negative evidence, the Board therefore finds that there is competent and credible evidence that the Veteran visited in Vietnam, during the Vietnam era, triggering the presumption of service connection for diabetes mellitus, type 2, due to presumptive exposure to Agent Orange under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309, establishing entitlement to service connection. Claim for Increase Tinnitus Analysis In a rating decision in March 2002, the RO granted service connection for tinnitus and assigned a 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6260. Subsequently, in a rating decision, dated in February 2003, the RO denied a rating higher than 10 percent, which the Veteran has appealed. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether tinnitus is perceived as being in one ear or each ear or in the head. 38 C.F.R. § 4.87, DC 6260, note 2 (2006). In Smith v. Nicholson, 451 F. 3d 1344, 1350-51 (Fed. Cir. June 19, 2006), the United States Court of Appeals for the Federal Circuit affirmed VA's long-standing interpretation of DC 6260 that only a single 10 percent rating for tinnitus is assignable, whether or not the tinnitus is perceived unilaterally or bilaterally. In light of the foregoing, the Board concludes that the rating of 10 percent for tinnitus is the maximum rating assignable under Diagnostic Code 6260, whether or not tinnitus is perceived in each ear. As the disposition of the claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Rating Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating criteria for the disability reasonably describes the disability level and symptomatology. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). (The Order follows on the next page.). ORDER Service connection for diabetes mellitus, type 2, due to Agent Orange exposure is granted. A rating higher than 10 percent for tinnitus is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs