Citation Nr: 1217928 Decision Date: 05/18/12 Archive Date: 05/31/12 DOCKET NO. 04-20 334 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for diabetes mellitus, type 2, claimed as due to exposure to herbicides. REPRESENTATION Veteran represented by: Susan Paczak, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran had active service from July 1964 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction currently rests with the RO in Des Moines, Iowa. In May 2008, the Board deferred a decision on the case because it was subject to a stay at the Board on the adjudication of claims affected by Haas v. Nicholson, 20 Vet. App. 257 (2006), which VA appealed to the United States Court of Appeals for the Federal Circuit. The stay affected those cases involving claims based on herbicide exposure in which the only evidence of exposure was the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In July 2009, after the Haas stay was lifted, the Board remanded the case to the RO in order to obtain deck logs from the U.S.S. George K. Mackenzie. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not serve within the land borders, including the inland waters, of Vietnam during the Vietnam era and exposure to herbicides is not shown. 2. Diabetes mellitus was not present during active duty; diabetes mellitus was not manifested to a compensable degree within one year from the date of separation from service in June 1968; and diabetes mellitus, type 2, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event of service origin, including exposure to herbicides. CONCLUSION OF LAW Diabetes mellitus is not due to disease or injury that was incurred in or aggravated by service; diabetes mellitus as a chronic disease may not be presumed to have been incurred in service; and the presumption of exposure to herbicides and the presumption of service connection due to exposure to herbicides do not apply. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 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. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post-adjudication VCAA notice by letters, dated in April 2002, June 2003, and September 2009. The Veteran was notified of the type of evidence to substantiate the claim for service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. In the September 2009 letter, the Veteran was notified of the provisions regarding the effective date of a claim and the degree of disability assignable for the claim. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of a claim for service connection). To the extent the June 2003 and September 2009 VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated, as evidenced by the supplemental statement of the case sent to the Veteran in October 2011. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran had an opportunity to testify at a hearing before an RO hearing officer in April 2003. The RO obtained service treatment records, VA medical records, and various private medical reports identified by the Veteran. The RO also sought to corroborate the Veteran's service in Vietnam through the U.S. Army and Joint Services Records Research Center, the National Historical Center, and the National Archives and Records Administration. The Veteran has not identified any other pertinent evidence to obtain on his behalf. VA has not provided the Veteran an examination in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). However, further development is not required because there is no record of diabetes mellitus or complaints relative to diabetes mellitus during service or for many years after service. Nor does the Veteran claim that he had diabetes mellitus during service or in the years immediately after service. It is undisputed that the Veteran has a current diagnosis of diabetes mellitus, type 2. However, what this case turns on is whether the Veteran's service on a vessel off the shore of Vietnam constitutes service in Vietnam under the regulations for purposes of establishing his exposure to herbicides. If such can be established, then the Veteran's claim for service connection is substantiated as diabetes mellitus is presumed to be related to his period of service. Therefore, as competent medical evidence is on file to decide the claim, a medical examination or medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 38 C.F.R. § 3.103(c)(2) (2011) requires that the hearing office who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the personal hearing in April 2003, the hearing office noted the elements of the claim that were lacking to substantiate the claims for service connection for diabetes. The hearing office asked questions to ascertain the nature of the veteran's exposure to herbicides, and noted that a key issue in the case was whether the Veteran had been on land in Vietnam. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars, who was his representative of record at the time. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for diabetes. Therefore, the Board finds that the hearing officer complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of 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(a)(3), 3.309(a). 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). A veteran who, during active naval 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 a herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). 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). "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). A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. With regard to inland waterways, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). VA's Secretary has determined that a presumption of service connection based on exposure to certain 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. Notice, 59 Fed. Reg. 341 -346 (1994); 61 Fed. Reg. 41442 -41449 and 57586-57589 (1996); 67 Fed. Reg. 42600-42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991), 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). Analysis The Veteran claims that he has diabetes mellitus that is attributable to his period of service, particularly to exposure to herbicides (Agent Orange). He stated that he served aboard ship - USS George K. MacKenzie (DD-836) - just off shore and as close as 75 yards from land in the Vietnamese Demilitarized Zone where much of the Agent Orange was used to defoliate the country. He specifically denied any history of direct exposure while on land to herbicides, as he served offshore. In a November 2002 report of contact, the Veteran indicated that he did not leave his ship and his ship did not port in Vietnam. At a hearing in April 2003, he testified that although he was in fact not "in-country, he felt he was close enough to Vietnam to establish service in Vietnam. In an October 2009 statement, the Veteran related that the destroyer he served aboard was sometimes 75 yards from shore, and that in the evenings when there was an offshore breeze he observed Air Force planes spraying herbicides without knowing what it was they were spraying. In an November 2009 statement, the Veteran gave the following dates as to when he believed he was exposed to Agent Orange due to his close proximity to the Vietnam shoreline: August 26-31, 1967; September 1-15, 1967; and October 4-22, 1967. The Veteran served on active duty from July 1964 to June 1968. The service personnel records show that he had foreign and/or sea service of 1 year, 8 months, and 22 days, that he served aboard the USS George K. Mackenzie (DD-836) for the period of November 1965 to June 1968, and that his awards included the Vietnam Service Medal, Vietnam Campaign Medal, and National Defense Service Medal. Service treatment records do not show any complaint, finding, history, diagnosis, or treatment for diabetes mellitus. After service, VA records, beginning in 2002, show that the Veteran's glucose levels were high, as reflected on laboratory tests, and that he was subsequently diagnosed with diabetes mellitus, type 2. VA treatment records in 2004 reflect that his diabetes mellitus was diet controlled (although private treatment records in March and April 2004 indicate that medication, Glucophage/Metformin, was recommended), and later records show that he was treated for neuropathy associated with diabetes mellitus. In other words, the evidence of diagnosis and treatment for diabetes mellitus, type 2, comes more than 30 years after his discharge from service in June 1968. Based on the service treatment records, diabetes mellitus did not have its onset in service, and the Veteran has not argued that diabetes mellitus was present during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Given that there is no competent evidence either contemporaneous with or after service that diabetes mellitus 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 shows that diabetes mellitus, type 2, was not diagnosed until 2002, well beyond the one-year presumptive period following separation from service in 1968 for diabetes as a chronic disease under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.306, 3.309. Except for exposure to herbicides, which is addressed separately, there is no competent evidence that the Veteran's 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). Regarding exposure to herbicides, the Veteran asserts that his diabetes mellitus is attributable to exposure to herbicides during his period of service, where his ship was off shore. His allegations appear to stem from his belief that close proximity to the coastline of the Republic of Vietnam and winds carrying herbicides to his ship constitute exposure to herbicides. The Veteran does not assert that he set foot within the land borders of Vietnam, but instead in statements and testimony he clearly emphasized that the USS George K. MacKenzie was off shore of Vietnam, albeit in close proximity to the shoreline. He also has asserted that his ship did not dock at a port in Vietnam. As noted above, 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. § 3.307(a)(6)(iii); Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525) (upholding VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption). The RO has undertaken a comprehensive search, including through the Federal custodians of naval records (that is, the U.S. Army and Joint Services Records Research Center, the National Historical Center, and the National Archives and Records Administration), in an attempt to verify whether the Veteran's ship entered the inland waters of Vietnam, but there is no documentation that, while the Veteran served aboard the USS George K. MacKenzie (DD-836), conducting operations off the coast of Vietnam in the latter half of 1967, the ship entered the inland waters of Vietnam. For example, in January 2010, VA issued a document, "Compensation and Pension Bulletin" that listed information regarding vessels identified as traveling in the "brown waters" of the Republic of Vietnam. The Veteran's ship, the USS George K. MacKenzie, is not among those listed. Also, in May 2011 a response from the Defense Personnel Records Information Retrieval System (that is, an agency handling requests to U.S. Army and Joint Services Records Research Center) indicated that the ship history did not document that the ship docked, transited inland waterways, or that personnel stepped foot in the Republic of Vietnam. Furthermore, the history of the Veteran's ship, as published in the Dictionary of American Naval Fighting Ships, as well as deck log entries dated from August 1967 through November 1967 for the USS George K. MacKenzie place the ship in the vicinity of Vietnam, particularly the area of Yankee Station, Gulf of Tonkin, but do document any instance where the ship entered inland waterways of Vietnam. These records also do not show that the Veteran's ship was as close as 75 yards from the shoreline of Vietnam. Based on the foregoing, the Board finds that the Veteran's service aboard the USS George K. MacKenzie does not constitute service on the inland waterways. The Veteran served on a deep-water naval vessel in the waters offshore Vietnam. See Haas, supra; VAOPGCPREC 27-97. Service aboard such a ship that anchored in an open deep-water harbor, such as Da Nang or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10k. As it is not shown that the Veteran had service in the Republic of Vietnam, the presumption of exposure to herbicides does not apply to the Veteran's claim of service connection for diabetes mellitus. 38 U.S.C.A. § 1116(f). And as the Veteran is not presumed to have been exposed to herbicides, the presumption of service connection under 38 U.S.C.A. § 1116(a)(1) for diabetes mellitus, type 2, does not apply. As neither the presumption of exposure to herbicides nor the presumption of service connection due to such exposure applies to the claim for the reasons articulated, the Veteran may still establish service connection by evidence of actual exposure to herbicides and by evidence that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As for the Veteran's assertion that herbicides could be carried by the air to his ship in close proximity to the shoreline of Vietnam, there are no records to document the presence of herbicides on his ship, and there is no competent evidence of record to substantiate such a claim. In a memorandum dated in May 2009, the U.S. Army and Joint Services Records Research Center indicated that to date no evidence has been found to show that Navy ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, it could not be verified that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Further, the Veteran is not competent to state that he was exposed to herbicides via air current transmission. For this reason, the Board finds that the Veteran was not exposed to herbicides aboard ship. As the Board finds that exposure to herbicides has not been established, the Board does not need to address the question of medical causation, that is, evidence that diabetes mellitus, type 2, was actually caused by exposure to herbicides. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As for the Veteran's statements attributing his diabetes mellitus to herbicide exposure during service while serving aboard a ship off shore of Vietnam, although he is competent to describe symptoms of diabetes mellitus, the claimed disability is not a condition under case law where lay observation has been found to be competent. Therefore, the determination as to the diagnosis and causation of the Veteran's disability is medical in nature, that is, not capable of lay observation. Where, as here, the questions involve a medical diagnosis, which is not capable of lay observation, and of medical causation, competent medical evidence is required to substantiate the claim because the Veteran as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board rejects the Veteran's statements as competent evidence to substantiate that his current diabetes mellitus, type 2, is related to his period of service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the weight of the evidence does not demonstrate that the Veteran visited or served within the land borders or internal waterways of Vietnam. Therefore, exposure to herbicides is not presumed. There is also no evidence of record to show that the Veteran was actually exposed to herbicides in service. There is no competent evidence of record linking the current diabetes mellitus, type 2, first shown decades after active duty, to any incident of service. In view of the foregoing, the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type 2, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus, type 2, claimed as due to exposure to herbicides is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs