Citation Nr: 0707739 Decision Date: 03/15/07 Archive Date: 04/09/07 DOCKET NO. 04-28 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus with peripheral neuropathy to a result of exposure to herbicides. 2. Entitlement to service connection for hypothyroidism to include as secondary to type II diabetes mellitus. 3. Entitlement to service connection for hypertension to include as secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to March 1973. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO) which denied service connection for type II diabetes mellitus with hypothyroidism, hypertension, and diabetic neuropathy. The Board has recharacterized the issues on appeal as entitlement to service connection for (1) type II diabetes mellitus with peripheral neuropathy as a result of exposure to herbicides; (2) hypothyroidism to include as secondary to type II diabetes mellitus; and (3) hypertension to include as secondary to type II diabetes mellitus. The issues of service connection for hypothyroidism and hypertension, secondary to type II diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. It is reasonably probable that the veteran had service in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to an herbicide agent in service. 2. The veteran's type II diabetes mellitus with peripheral neuropathy is etiologically related to active service. CONCLUSION OF LAW Type II diabetes mellitus with peripheral neuropathy was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an August 2001 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. The VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, VA did not provide the veteran with VCAA notice of the type of specific evidence necessary to establish a disability rating or effective date prior to the initial rating decision. In light of the Board's favorable decision, the Board finds no prejudice to the veteran in proceeding with the issuance of a decision in the present appeal despite any inadequate notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any such failure was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The RO shall address any notice defect regarding disability ratings and effective dates when effectuating the award. The veteran's service medical records, service personnel records, private treatment records, VA treatment records, and VA examinations have been associated with the claims file. The Board notes that clinical treatment records were not associated with service medical records. The RO made an additional request for outstanding records from the National Personnel Records Center (NPRC) in August 2001. A February 2002 response indicates all available medical and personnel records had already been mailed. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. In A July 2004 lay statement, the veteran indicated that he had made efforts to obtain additional service records and evidence of trips in country to Vietnam to no avail. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. Thus, the Board finds that all available service records have been associated with the claims file. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may 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) (2006). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran claims that he was exposed to Agent Orange while in service. A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2006). "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. 38 C.F.R. § 3.307(a)(6)(iii) (2006). In order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. VA regulations provide that the following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2006). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The veteran's Form DD-214 shows that he received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal among other awards and decorations, showing that he may have served in Vietnam. The Form DD-214 "remarks" section, however, appears to indicate that the veteran had service in Indochina, but not in Vietnam. Service medical records, which include an April 1969 enlistment examination, a February 1973 separation examination, and a November 1970 line of duty determination, contain no complaints, diagnoses, or treatment for type II diabetes mellitus or related problems. The Board notes that during his February 1973 separation examination, the veteran denied a family history of diabetes. The veteran has reported in various lay statements, that he was a part of the 354th fighter wing from September 1972 to April 1973, that he was stationed in Korat, Thailand, and that he had temporary duty in Bin Hoa, South Vietnam. (See February 2001 claim and Lay Statements dated June 2001, March 2002, June 2003, and July 2004). He indicated that aircraft and personnel were rotated back and forth between Korat, Thailand and Bien Hoa, South Vietnam in dual operations, and that he was exposed to herbicide agents in both Thailand and Vietnam. Id. The veteran submitted supporting documentation from a website, which indicates that the 354th Tactical Fighter Wing commenced combat operations in 1972 from Bien Hoa Air Base, South Vietnam, and Korat RTAFB, Thailand. The veteran also submitted a Historical Inquiry, signed May 2002, which indicates that the 354th tactical fighter wing had a forward operating location at Bien Hoa Air Base, South Vietnam. The information was located on the 354th Tactical Fighter Wing microfilm archive, October 1972 to December 1972, and it was noted that this information was also available from the Air Force Historical Research Agency at Maxwell Air Force Base, Alabama. A performance report dated January 1973, associated with the veteran's personnel records, shows that the veteran had was located at the 23rd Organizational Maintenance Squadron, England Air Force Base, with duty at Korat RTAFB, Thailand, between October 1972 and January 1973. The veteran was ranked Sergeant with duty as a crew chief and aircraft maintenance specialist. Comments noted that the veteran was an outstanding non-commissioned officer of great value to the 354th Tactical Fighter Wing and the United States Air Force in its mission in Southeast Asia. The veteran's personnel records confirm that he had service in Korat RTAFB in Thailand between October 1972 and January 1973. Personal research submitted in support of his lay statements show that the veteran may have had additional service in Bien Hoa Air Base, South Vietnam. If lay evidence presented by a veteran is found to be credible and ultimately competent, a lack of corroboration by official records is not an absolute bar to the veteran's ability to prove his claim based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The veteran has submitted statements in which he reports temporary duty in South Vietnam. These statements are not contradicted by the evidence of record. The veteran's personnel records show that he was commended as an outstanding non-commissioned officer. His reported temporary duty in Vietnam is consistent with the nature of his service. In this case, the Board finds that the veteran's statements are credible, and adequately supported by objective evidence of record. Thus, resolving the benefit of the doubt in favor of the veteran, the Board finds that the veteran had service in Vietnam during the Vietnam era and is presumed to have been exposed to an herbicide agent. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2006). VA and private medical records show that the veteran has a current diagnosis of type II diabetes mellitus with peripheral neuropathy. (See VA Treatment Records, May 2001- May 2004; September 2001 VA Examination; Twin Lakes Family Medicine Treatment Records, March 2000 to February 2001; Human Health Care Plans, October 1985-May 1997 ). The September 2001 VA examination assessed the veteran with diabetes mellitus, type II, with a history of Agent Orange exposure and clinical evidence of peripheral neuropathy. Type II diabetes mellitus and peripheral neuropathy are diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e). Thus, the Board finds that presumptive service connection is warranted for type II diabetes mellitus with peripheral neuropathy based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.309(e) (2006). C. Conclusion The evidence supports a finding that the veteran had service in Vietnam and he is presumed to have been exposed to an herbicide agent in service. The veteran has a current diagnosis of type II diabetes mellitus with peripheral neuropathy. Therefore, the Board concludes that presumption of service connection for type II diabetes mellitus with peripheral neuropathy is warranted based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era. ORDER Service connection for type II diabetes mellitus with peripheral neuropathy as a result of exposure to herbicides, is granted. REMAND In light of the Board's grant of service connection for type II diabetes mellitus with peripheral neuropathy as a result of exposure to herbicides, the Board finds that it is necessary for the RO to consider, in the first instance, the issues of service connection for hyperthyroidism and hypertension, as secondary to service-connected type II diabetes mellitus, prior to appellate review of the veteran's claims. The VCAA requires that VA, upon receipt of a complete or substantially complete application for benefits, notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (CAVC) held that the VCAA notice requirements apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the RO did not provide the veteran with adequate VCAA notice in regard to service connection for hyperthyroidism and hypertension as secondary to a service- connected disability. The RO should address all VCAA notice deficiencies on remand. The veteran should be afforded an opportunity to submit any additional evidence in support of his claims. The Board notes that pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2006). The RO should take any additional development as deemed necessary. If the evidence shows that hyperthyroidism or hypertension may be related to service, or to service- connected type II diabetes mellitus, and the RO finds that a VA examination is necessary for disposition of the claim, the veteran should be afforded such. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to (1) the information and evidence necessary to substantiate the claim based on secondary service connection pursuant to 38 C.F.R. § 3.310 and (2) the information or evidence needed to establish a disability rating and an effective date for the claim on appeal, as outlined by the CAVC in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. After all available evidence has been associated with the claims file, the RO should review the evidence and determine if further development is warranted for the remaining issues of service connection for hypothyroidism and hypertension. The RO should take any additional development as deemed necessary. If the RO finds that a VA examination is warranted, the claims folder should be made available to a VA examiner within the appropriate specialty for these disabilities for review prior to examination. The examiner should state: (1) whether it is at least as likely as not that hyperthyroidism was incurred in service; (2) whether it is at least as likely as not that hyperthyroidism is due to type II diabetes mellitus; (3) whether it is at least as likely as not that hypertension was incurred in service or within one year of separation of service; and (4) whether it is at least as likely as not that hypertension is due to type II diabetes mellitus. 3. The RO should then review the record and readjudicate the veteran's claims. If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case, which includes a summary of all pertinent evidence and legal authority, as well as the reasons for the decision. The veteran and his representative should be afforded a reasonable period in which to respond, and the record should then be returned to the Board for further appellate review, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded by the Board or by the CAVC for additional development or other appropriate action shall be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs