Citation Nr: 1110639 Decision Date: 03/17/11 Archive Date: 03/30/11 DOCKET NO. 09-20 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II (diabetes). 2. Entitlement to service connection for joint pains. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran served in Thailand from July 1967 to May 1969. 2. The Veteran has been diagnosed with diabetes. 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's diabetes was incurred as a result of herbicide exposure during his active duty service in Thailand. 4. The record lacks evidence that the Veteran has a joint pain disorder that relates to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes, to include as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). 2. A joint pain disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002);; 38 C.F.R. §§ 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially discuss whether the claims decided here have been properly developed for appellate purposes. The Board will then address the merits of the claims, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. VA provided the Veteran with VCAA notification in a letter dated in February 2008. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. In this letter, the Veteran was informed of the elements of his claims, and of the evidence necessary to substantiate the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was advised of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claims. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). And the Veteran was provided with complete VCAA notification prior to the adverse rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. VA obtained medical records relevant to this appeal. And the Veteran underwent VA medical examination for his service connection claim for diabetes. The Board notes that VA did not provide the Veteran with a compensation medical examination for his service connection claim for joint pains. A VA medical examination and opinion is required only when a reasonable possibility exists that such assistance would aid in substantiating a claim. 38 U.S.C.A. § 5103A. VA's duty to provide a medical examination is triggered where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability may be associated with the Veteran's service; but (4) insufficient medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). See also Duenas v. Principi, 18 Vet. App. 512 (2004). Here, no reasonable possibility exists that recent medical examination or opinion would assist the Veteran in substantiating his service connection claim for joint pains. As will be further detailed below, the record does not indicate that the Veteran has been diagnosed with a joint pain disorder, or that he manifested one during service, during an applicable presumptive period following service, or for many years following service. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). Conducting a medical examination for the purpose of rendering a nexus opinion would serve no purpose therefore. Indeed, the evidentiary foundation for a medical nexus opinion is lacking for the claim. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service). As such, no reasonable possibility exists that medical examination and opinion would aid the Veteran in substantiating the service connection claim for joint pains. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); Duenas and McLendon, both supra. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claims here. II. The Merits to the Claims for Service Connection In January 2008, the Veteran claimed that he incurred diabetes and a joint pain disorder due to service in Thailand between July 1967 and May 1969. In the October 2008 rating decision on appeal, the RO denied the Veteran's claims. For the reasons set forth below, the Board disagrees in part with that decision. Generally, 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Also, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (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. 38 U.S.C.A. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including diabetes. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing presumption provisions, which arose out of the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996). The Board will address the Veteran's claims separately below. Diabetes Medical evidence of record demonstrates that the Veteran currently has diabetes. A November 2007 private medical report indicates a diagnosis of diabetes, as does a July 2010 VA compensation examination report, which indicates onset of diabetes in November 1997. The Veteran contends that his diabetes was caused by exposure to herbicides while serving with the U.S. Army in Thailand in the late 1960s. In a statement of record received in March 2008, the Veteran asserted that he was stationed in Northeast Thailand at Camp Ruam Chit Chai in Sakon Nakhon. He also indicated that he "moved around in Thailand a lot." He noted such places as Udon, Khorat, Bangkok, Kanchanaburi, and the NKP air base in Nakhon Phanon. In a statement received in June 2009, the Veteran indicated that he "spent about two or three days at a base outside Sattahip" in Southeast Thailand. He stated that he visited Khorat Army base, Camp Ruam Chit Chai in Sakon nakhon, and NKP RTAB, which he referred to as the Royal Thai Air Base. He indicated that he worked in and outside that base. He also indicated that he assisted in building an air base in Kanchanaburi, northwest of Bangkok. He insisted that he traveled "extensively throughout northeast and central (Bangkok-Kanchanaburi) Thailand." In the June 2009 statement the Veteran also indicated that he served as "unit police" at Camp Ruam Chit Chai, working the front gate and guard posts along the camp perimeter. The Veteran submitted into the record two photographs, which appear to show him serving with the unit police. In one photograph, he is seen standing along what appears to be the perimeter of a military camp enclosed by sandbags. The Board notes that the Veteran reports that he served aboard a naval vessel off the coast of Vietnam while in transit to his duty station in Thailand. And he reports that, while returning home to the United States from Thailand, his plane landed in Vietnam. He indicated that he did not disembark the plane, and that the plane stayed in Vietnam briefly. The RO researched the issue of whether the Veteran actually served in Vietnam for purposes of the presumption noted under 38 C.F.R. § 3.309(e). Seeking relevant information, the RO contacted the U.S. Department of the Army, which, in a November 2009 response, indicated that the Veteran did not serve in Vietnam, and that his service in Southeast Asia was limited to service in Thailand. The Veteran has not contested this finding - he continues to base his claim on his service in Thailand. Hence, the express presumption noted under 38 C.F.R. § 3.309(e) - for service connection for diabetes based on service in Vietnam - is not directly applicable here. Nevertheless, the Board finds service connection warranted for diabetes in this matter. Included in the record is a copy of a May 2010 VA Compensation and Pension (C&P) Service Bulletin, which highlights new procedures for claims based on herbicide exposure in Thailand and Korea. The Bulletin notes that the C&P Service has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as noted in the Project CHECO Southeast Asia Report: Base Defense in Thailand. According to the Bulletin, the Department of Defense has provided information that commercial herbicides, rather than tactical herbicides, were used within the confines of Thai bases to control weeds; these commercial herbicides do not fall under VA's regulations governing presumptive service connection for certain diseases. However, the Bulletin notes that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or were a commercial variant of much greater strength and with characteristics of tactical herbicides. Therefore, the C&P Service determined that a special consideration of herbicide exposure on the facts found or direct basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military basis. This permits presumptive service connection of the diseases associated with herbicide exposure, such as diabetes. When considering the C&P bulletin alongside the facts in this matter, a service connection finding is appropriate. The Veteran's service personnel records demonstrate service in Thailand. Certain of the bases on which the Veteran claims to have served - in Nahohn Phanom, Udon, and Korat - are specifically mentioned in the Bulletin as places where U.S. troops were stationed in Thailand during the period between February 1961 and May 1975. The record indicates that the Veteran served as a truck driver with an engineer company, which tends to support the Veteran's claim to have traveled throughout Thailand assisting in efforts to build bases. The Veteran has demonstrated that a portion of his service was in a security capacity along a base perimeter, which the bulletin particularly notes as service "for which herbicide exposure should be acknowledged[.]" And the record contains no evidence that would lead the Board to question the Veteran's credibility, or his claims to serving in the locations noted. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The record is consistent with the Veteran's assertions regarding the locations of his service in Thailand, and the nature of his duties while there. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). Diabetes mellitus, type II is deemed associated with herbicide agent exposure under VA law. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as the evidence of record shows that the Veteran was exposed to herbicide agents during active military service, and the medical evidence shows a current diagnosis of diabetes mellitus, type II, service connection for diabetes mellitus, type II, is warranted. Joint Pains The Veteran also claims that his service in Thailand led to a current joint pain disorder. In his January 2008 claim, the Veteran cites a current joint pain disorder. Moreover, the November 2007 private medical report notes complaints of joint pain. However, the record does not contain a medical diagnosis of a current joint pain disorder. The Board has reviewed dozens of private medical records - which detail the Veteran's heart and diabetes disorders - and has found no positive diagnosis of a joint pain disorder. The July 2010 VA report does not contain such a diagnosis either. The Board has considered the Veteran's claim to having a joint disorder. The Board recognizes that lay testimony is competent to establish the presence of observable symptomatology and may form the basis for a service connection finding. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, laypersons such as the Veteran are generally not capable of opining on matters requiring medical knowledge such as etiology and diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). As such, the Board finds the Veteran's statement regarding a current diagnosable joint disorder to be of limited probative value. He merely asserts in January 2008 claim that he has this disorder. He provides no additional detail of the way in which the disorder is manifested in his life. His statement does not amount to evidence sufficient to conclude that he has a diagnosable joint pain disorder, particularly in light of the absence of medical evidence concluding such. As such, service connection is unwarranted here. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . In the absence of proof of a present disability there can be no valid claim."). Parenthetically, the Board notes that even if the record did contain a diagnosis of a current joint disorder, the record would not support a claim for service connection. Although the Veteran's service treatment records note complaints of hip and back pain, the records are negative for complaints, treatment, or diagnosis of a chronic diffuse joint pain disorder. Indeed, the April 1969 separation reports of medical examination and history are negative for such a disorder. Moreover, no evidence indicates onset of a joint disorder in the one year period following service, or that the Veteran displayed a continuity of symptomatology of a joint disorder in the several years following service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). And there is no medical evidence of a nexus between service and any asserted joint disorder. See Shedden, supra. As the preponderance of the evidence is against the Veteran's claim to service connection for a joint disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to service connection for diabetes is granted. 2. Entitlement to service connection for joint pains is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs