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Citation Nr: 1226982
Decision Date: 08/06/12 Archive Date: 08/10/12
DOCKET NO. 09-32 262 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUES
1. Entitlement to service connection for diabetes mellitus, type II.
2. Entitlement to service connection for a heart disability, to include the residuals of coronary artery bypass graft surgery.
REPRESENTATION
Appellant represented by: Steven M. Richard, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Emily L. Tamlyn, Counsel
INTRODUCTION
The Veteran served on active military duty from July 1968 to November 1971.
These matters come before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In that decision, the RO denied the claim for service connection for a heart disability and confirmed and continued the prior denial for service connection for diabetes mellitus (as explained further below, the issue involving diabetes mellitus is not a new and material evidence claim).
In April 2012, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript has been associated with the file. The Virtual VA file has been reviewed in this case and no new records were available.
The claims for service connection for bilateral hearing loss and tinnitus have been raised by an August 2010 letter, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. Resolving all doubt in the Veteran's favor, the Veteran was exposed to herbicides while in service and diabetes mellitus, type II is related to active service.
2. Resolving all doubt in the Veteran's favor, the Veteran was exposed to herbicides while in service and the residuals of coronary artery bypass graft surgery are related to active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§3.102, 3.159, 3.303, 3.307, 3.309 (2011).
2. The criteria for service connection for the residuals of coronary artery bypass graft surgery are met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duty to Notify and Assist
As the Board's decision to grant the claims for service connection constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations.
II. Service Connection
Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c) (2011). Here, pertinent service personnel records were not associated with the file until June 2006 and service connection for diabetes mellitus was denied in May 2001. The service personnel records were not considered in the prior rating decision and the claim is reconsidered without regard to the previous final denial. Id.
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2011). 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) (2011).
In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002).
VA regulations provide that service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. §1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e), 3.313 (2011). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. §1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309.
Certain diseases include diabetes mellitus type II and ischemic heart disease. These 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, provided that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e) (2011) (Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.) Generally, 38 C.F.R. § 3.307(a)(6)(ii) provides that the diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service.
However, as the Veteran's attorney pointed out in June 2012, during the notice and comment period when VA promulgated its herbicide presumption in 2001, the issue of herbicide exposure outside Vietnam was also addressed. 66 Fed. Reg. 23166 (May 8, 2001). VA explained if a veteran did not serve in Vietnam but was exposed to an herbicide agent defined in 38 C.F.R. § 3.307(a)(6) during active military service and has a disease on the list of presumptive service connection (which includes diabetes mellitus type II and ischemic heart disease), VA will presume that the disease is due to the exposure of herbicides. See 66 Fed. Reg. 23166; 38 C.F.R. § 3.309(e).
Additionally, despite the foregoing presumptive provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
Here, the Veteran does not allege, nor does the evidence show that he had diabetes mellitus or any heart disability in service. As a result, for establishing a presumptive disability this case comes down to not whether the Veteran served in Vietnam, but whether he was exposed to herbicides as listed in § 3.307(a)(6) (a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid and picloram). Also, the Veteran is not precluded from establishing direct service connection without the benefit of the presumption. Combee, 34 F.3d at 1042.
In adjudicating this case, the Board must discuss competency and credibility. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has stated before as well that where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. §3.159(a)(2) (2011). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id.
It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) and Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011).
The Veteran contends that while in service he cleaned out spray nozzles of Agent Orange defoliant at Eglin Air Force Base (AFB); he said he would put the nozzles to his lips to clean the defoliant out. See April 2006 claim. His theory was that he had diabetes mellitus, type II and a heart disability secondary to diabetes mellitus. In a February 2009 statement, the Veteran stated his job was to repair, maintain and service aircraft at Eglin AFB from December 1968 to November 1971. The Veteran claimed he worked on C-123 planes which he believed were spraying defoliant to clear out vegetation along power lines; he learned this information from conversations with the flight crew. He cleaned out the spray nozzles of the planes by blowing on them with his mouth sometimes. He noted a performance report stated that he coped with a variety of problems maintaining aircraft assigned to the base as well as transient aircraft.
The Veteran's testimony at the April 2012 Board hearing shows that the Veteran's statements continued to be consistent. He stated that he worked on planes (C 123s) that were tested at his base which he believed were used for spraying vegetation in Vietnam. (Transcript, p 6.) The Veteran related in detail spray apparatuses that were on these planes and said he cleaned them. (Transcript, pp 6-7.) He also said he had been on insulin for his diabetes mellitus and that he had open heart surgery in 1999 or 2000. (Transcript, pp 11-12.)
In May 2012, the Veteran submitted an affidavit of W.T., who served with the Veteran at Eglin and worked on various types of aircraft. W.T. remembered that there were C-123 planes for maintenance outside the hanger that had "Smokey the Bear" logos on them with the statement: "We prevent forests." He heard through others at the base that the C-123s were used to spray herbicides like Agent Orange.
In support of his claim, the Veteran submitted an article regarding herbicide use by the Air Force at Eglin AFB and the Department of Defense information regarding herbicide use outside of Vietnam (available on VA's website). The chart notes that Agent Orange and other herbicides were used in a two square mile test area at Eglin from 1962 to 1970 (Agent Orange specifically in 1968). Also submitted was an Agency for Toxic Substances and Disease Registry (a Center for Disease Control and Prevention agency) report from October 2009 regarding Eglin AFB.
Service treatment records show that at separation in 1971, the Veteran denied a past family history of diabetes mellitus. This was also noted in a Massachusetts Air National Guard examination in 1977; the Veteran said his health was good and he was on no medications. In November 1976, a private record from Dr. R.W. shows the Veteran appeared for a nutrition appointment with the problem of "diabetes" and was put on a diet.
Service personnel records show the Veteran's military occupational specialty was aircraft maintenance specialist and the many positive performance reports show he had extensive contact with aircraft. A July 1968 to July 1969 performance report noted the Veteran performed duty which required him to be familiar with various types of aircraft, even some foreign to his station. An August 1970 to January 1971 performance report noted duties required knowledge of all different types of aircraft.
More recent medical evidence from July 2002 shows the Veteran was diagnosed with emergent "cabg" or coronary artery bypass graft. Past medical history included insulin dependent diabetes mellitus, unstable angina, hypertension, and orthopedic surgery. His FMLA form states that he had emergency coronary artery bypass surgery and acute coronary syndrome. In a letter from the same month, Dr. H.R. stated the Veteran underwent emergent off pump aortocoronary bypass times five. In April 2012, a private record showed the Veteran was noted to have diabetes mellitus type II with renal manifestations.
In July 2009, the RO received information via email from VA Compensation and Policy (C&P) Staff (in keeping with protocol of the M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.o). This email confirmed that herbicide spraying technique testing at Eglin occurred from June 1968 to September 1968 and a two square mile area was used to test herbicides from 1962 to 1970 (sources showed the base to be at least 1,000 square miles in size). Agent Orange was tested from 1962 to 1968. Testing was done at a remote forested site that was not located near base personnel. Staff noted that there was normally no acknowledgement of "secondary exposure" based on performing maintenance on aircraft that may have sprayed Agent Orange. The email also acknowledged that the Veteran was present during the testing period and if he did clean the test spray equipment that would indicate some exposure to the tested herbicides. The military occupational specialty showed he maintained aircraft, though not necessarily test aircraft.
A May 2012 letter from Dr. R.D. provides a positive nexus for diabetes mellitus and atherosclerotic cardiovascular disease. Dr. R.D. stated he reviewed information regarding the Veteran and his claim. He cited to evidence that there was testing of "Herbicide Orange" and other defoliants at Eglin AFB; personnel records show the Veteran was attached to the aircraft repair and field maintenance section at Eglin during the time of testing; and he had diabetes mellitus type II. Dr. R.D. also pointed out an association between diabetes mellitus type II and atherosclerotic cardiovascular disease. Dr. R.D. stated despite lack of detailed records of the Veteran and Air Force, the Veteran's memory of his exposure to herbicides was detailed, technical, logical, coherent and credible.
The Board finds that claims for service connection for diabetes mellitus, type II, and the residuals of coronary artery bypass graft surgery are in equipoise. The competent evidence of record shows the Veteran has a current disability of diabetes mellitus, type II and that he currently is status post coronary artery bypass graft times five; these are disabilities listed under 38 C.F.R. §3.309(e). April 2012 evidence shows the Veteran's diabetes mellitus is insulin dependent and is on continuous medication for his heart. See 38 C.F.R. § 4.104, Diagnostic Code 7005, 7017 (2011); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2011); 38 C.F.R. § 3.307(a)(6)(ii) (2011) (providing that the diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service).
Regarding exposure to herbicide in service, as the C&P email noted, testing was done at a remote forested site and there is no documentation that the Veteran worked on test aircraft. However, the Board finds the Veteran to have been consistent and therefore credible regarding his exposure to Agent Orange while in service. Caluza v. Brown, 7 Vet. App. 498, 511. There is also no reason to doubt the veracity of the corroborating affidavit of W.T., as it is also consistent. Id. There is objective evidence regarding herbicide testing (specifically Agent Orange) at Eglin AFB while the Veteran was present in December 1978 and service personnel records showing the Veteran worked in aircraft maintenance at that time. Under these particular circumstances, the Board will resolve doubt and find that the Veteran was exposed to herbicide in service. The Board finds that under the circumstances and in consideration of 38 U.S.C.A. § 1154(a) the claim is at least in equipoise.
A positive nexus opinion has been obtained via the May 2012 letter of Dr. R.D. At least in the case of diabetes mellitus II, there is evidence for direct service connection and an opinion stating that atherosclerotic cardiovascular disease is related to diabetes mellitus. See Combee, 34 F.3d at 1042 and 38 C.F.R. § 3.310 (addressing secondary service connection). However, since the Board finds the Veteran was exposed to herbicide in service, the presumptive service connection applies. 38 C.F.R. §§ 3.307, 3.309; 66 Fed. Reg. 23166. The Board will grant service connection for these claims under the benefit of the doubt rule. See 38 U.S.C.A. §5107; 38 C.F.R. § 3.102.
ORDER: The claim for service connection for diabetes mellitus, type II, is granted.
Service connection for the residuals of coronary artery bypass graft surgery is granted.
____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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