Citation Nr: 0509767	
Decision Date: 04/04/05    Archive Date: 04/15/05

DOCKET NO.  04-05 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to service connection for Type II diabetes 
mellitus associated with herbicide exposure.  


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Christopher J. McEntee, Associate Counsel 


INTRODUCTION

The veteran had active service from April 1971 to February 
1973.              

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision dated in May 2002 of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Louis, Missouri.    


FINDINGS OF FACT

1.	The veteran's service on the U.S.S. Tolovana (AO-64) off 
the shore of the Republic of Vietnam did not involve actual 
duty or visitation in the Republic of Vietnam.

2.	The veteran's Type II diabetes mellitus was not manifested 
during the veteran's active military service or within one 
year after service, and is not otherwise related to such 
service.

3.	The record contains no competent evidence indicating that 
the veteran's Type II diabetes mellitus is causally related 
to his active service or any incident therein, to include any 
exposure to Agent Orange or other chemicals.


CONCLUSION OF LAW

Type II diabetes mellitus was not incurred in service, nor 
may it be presumed to have been incurred in service.  38 
U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matter - VA's Duty to Notify and Assist

Prior to proceeding with an examination of the merits of the 
claim, the Board must first determine whether the veteran 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 (VCAA) 
and other applicable law.  See 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5107 (West 2002).

The VCAA provides that VA shall make reasonable efforts to 
assist a claimant in obtaining evidence necessary to 
substantiate a claim for a benefit under a law administered 
by the Secretary, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
In part, the VCAA specifically provides that VA is required 
to make reasonable efforts to obtain relevant governmental 
and private records that the claimant adequately identifies 
to VA and authorizes VA to obtain.  

The VCAA further 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 (West 2002).  
In determining whether either is necessary, VA must determine 
whether the evidence shows that the claimant has a current 
disability, or has persistent or recurrent symptoms of a 
disability, and whether the evidence indicates that the 
disability or symptoms may be associated with the claimant's 
active service.  38 U.S.C.A. § 5103A(d).  

In Pelegrini v. Principi, 18 Vet. App 112 (2004), it was in 
part held that a VCAA notice, as required by 38 U.S.C. § 
5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction decision (i.e., 
that of the RO) on a claim for VA benefits.  In Pelegrini, it 
was also observed that VA must (1) inform the claimant about 
the information and evidence not of record that is necessary 
to substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claims.  This new "fourth element" of 
the notice requirement comes from the language of 38 C.F.R. 
§ 3.159(b)(1).  It was also held in Quartuccio v. Principi, 
16 Vet. App. 183 (2002) that VA must strictly comply with all 
relevant provisions of the VCAA.     

In this matter, the record indicates that the veteran has 
been fully apprised of what evidence would be necessary to 
substantiate his claim, as well as informed of the specific 
assignment of responsibility for obtaining such evidence.  38 
U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  

In specific compliance with Quartuccio, and in response to 
the veteran's original claim for service connection, the RO 
advised the veteran by letter dated in April 2002 of the 
evidence that would substantiate the veteran's claim, and the 
responsibility for obtaining the evidence.  The veteran was 
later provided with a copy of the original rating decision 
dated in May 2002 setting forth the general requirements of 
then-applicable law pertaining to a claim for service 
connection.  In January 2004 the veteran was provided with 
the Statement of the Case which reiterated the general 
notification found in the rating decision.  

Because the veteran had been continually apprised for 
approximately 20 months of the nature of substantiating 
evidence and his responsibility for obtaining it, the 
provisions of the VCAA as to notice have been satisfied.  See 
38 U.S.C.A § 5103(b) (Providing in substance that after 
notice to the claimant under the VCAA of any information 
which was not previously provided, if such information or 
evidence is not received within one year from the date of 
such notification, no benefit may be paid or furnished by 
reason of the claimant's application).

The record further reflects that the RO ensured that all 
available relevant evidence had been obtained.  The RO 
obtained the veteran's service medical records and VA medical 
records.  And the RO requested from the veteran, and 
received, private medical records reflecting private medical 
care.  All records received were reviewed by the RO prior to 
its rating decision.  Moreover, VA afforded the veteran the 
opportunity to appear before a hearing, which the veteran 
declined.  

The Board finds that VA has done everything reasonably 
possible to assist the veteran.  In the circumstances of this 
case, additional efforts to assist the veteran in accordance 
with the VCAA would serve no useful purpose.  See Soyini v. 
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to 
requirements in the law does not dictate an unquestioning, 
blind adherence in the face of overwhelming evidence in 
support of the result in a particular case; such adherence 
would result in unnecessarily imposing additional burdens on 
VA with no benefit flowing to the veteran); Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994) (remands which would only result 
in unnecessarily imposing additional burdens on VA with no 
benefit flowing to the veteran are to be avoided).  

In sum, VA has satisfied its duties to inform and assist the 
veteran at every stage of this case.  Given the extensive 
development undertaken by the RO, and the fact that the 
veteran has pointed to no other evidence which has not been 
obtained, the Board finds that the record is ready for 
appellate review.

The Merits of the Claim for Service Connection:

I.	Background:

The veteran is presently diagnosed with Type II diabetes 
mellitus.  He maintains that his diabetes resulted from his 
US Naval service during the Vietnam conflict, aboard the 
U.S.S. Tolovana (AO-64).  

In his original claim dated in March 2002, the veteran stated 
that the U.S.S. Tolovana (AO-64) was tasked with transporting 
supplies in support of shore and ship operations in Vietnam.  
He claims that, pursuant to this mission, his ship received 
"empty chemical barrels" from aircraft carriers and bases, 
and then transported these barrels from Vietnam to Subic Bay, 
Philippines.  He claims that while on board, he handled oil 
drums, Agent Orange drums, bomb canisters, and other types of 
foreign materials.  

In response to the veteran's claim, the RO requested records 
reflecting units of assignment, participation in combat 
operations, wounds in action, awards and decorations, and 
official travel outside the US.  The requested records were 
received in May 2002.  A review of these records reveals no 
evidence of in-country service in the Republic of Vietnam, 
and no evidence that the veteran handled herbicides while on 
board his assigned vessel.  

In a letter dated in April 2002, the RO requested from the 
veteran evidence showing any service within the Republic of 
Vietnam, or evidence of service duty or visitation on land in 
Vietnam.  The veteran has submitted no evidence reflecting 
such service.        

Service medical records from the veteran's period of active 
duty do not show any treatment or diagnosis of Type II 
diabetes mellitus.  The veteran's January 1973 separation 
examination showed no findings or complaints for diabetes.  
Service medical records, showing medical evaluation during 
the veteran's Naval Reserve service between January 1973 and 
December 1983, likewise show no findings or complaints for 
diabetes.  

In his Form 9 filed in January 2004, the veteran stated that 
he was first diagnosed with Type II diabetes mellitus in 
1983.  The record shows no evidence of this diagnosis.  A 
December 1983 record does show a 1+ reading of sugar from the 
veteran's urinalysis, for which medical personnel recommended 
that the veteran seek private medical treatment.  

The veteran submitted private medical treatment records dated 
from February 1979 to April 2000.  Beginning in June 1986, 
these records show high blood sugar readings.  According to 
these records, the earliest evidence of a diabetes diagnosis 
is in June 1989.      

II.	Laws and Regulations

Service connection may be granted for disability resulting 
from personal injury suffered or disease contracted in the 
line of duty, or for aggravation of a preexisting injury 
suffered or disease contracted in the line of duty in the 
active military, naval, or air service.  38 U.S.C.A. § 1110; 
38 C.F.R. § 3.303 (2004).  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 active service.  
38 C.F.R. § 3.303(d) (2004).

A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the period beginning 
on January 9, 1962, and ending on May 7, 1975, and has a 
disease listed in 38 C.F.R. § 3.309(e), 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.  The last date on which such a veteran shall be 
presumed to have been exposed to a herbicide agent shall be 
the last date on which he or she served in the Republic of 
Vietnam during the period beginning on January 9, 1962, and 
ending on May 7, 1975.  

"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), 
3.313(a).

The VA General Counsel has determined that the regulatory 
definition (which permits certain personnel not actually 
stationed within the borders of the Republic of Vietnam to be 
considered to have served in that Republic) requires that an 
individual actually have been present within the boundaries 
of the Republic.  See VAOPGCPREC 27-97.  Specifically, the 
General Counsel has concluded that in order to establish 
qualifying "service in Vietnam," a veteran must demonstrate 
actual duty or visitation in the Republic of Vietnam.  
Service on a deep water naval vessel in waters off the shore 
of the Republic of Vietnam, without proof of actual duty or 
visitation in the Republic of Vietnam, does not constitute 
service in the Republic of Vietnam for purposes of 38 
U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam 
era" means the period beginning on February 28, 1961 and 
ending on May 7, 1975 in the case of a veteran who served in 
the Republic of Vietnam during that period).  See VAOPGCPREC 
27-97.   

Similarly, in another precedent opinion, the VA General 
Counsel concluded that the term "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.  See VAOPGCPREC 7-93.  Again, a showing 
of actual duty or visitation in the Republic of Vietnam is 
required to establish qualifying service in Vietnam.

If a veteran was exposed to an herbicide agent during active 
military, naval, or air service, the following diseases shall 
be service-connected if the requirements of 38 U.S.C.A. § 
1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there 
is no record of such disease during service, provided further 
that the rebuttable presumption provisions of 38 U.S.C.A. § 
1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or 
other acneform diseases consistent with chloracne, Type 2 
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes), Hodgkin's disease, multiple myeloma, non-
Hodgkin's lymphoma, acute and subacute peripheral neuropathy, 
porphyria cutanea tarda, prostate cancer, respiratory cancers 
(cancer of the lung, bronchus, larynx, or trachea), and soft- 
tissue sarcomas (other than osteosarcoma, chondrosarcoma, 
Kaposi's sarcoma, or mesothelioma).  See 38 C.F.R. § 
3.309(e).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become 
manifest to a degree of 10 percent or more at any time after 
service, except that chloracne or other acneform disease 
consistent with chloracne, porphyria cutanea tarda, and acute 
and subacute peripheral neuropathy shall have become manifest 
to a degree of 10 percent or more within a year after the 
last date on which the veteran was exposed to an herbicide 
agent during active military, naval, or air service. 38 
C.F.R. § 3.307(a)(6)(ii).  For the purposes of this section, 
the term acute and subacute peripheral neuropathy means 
transient peripheral neuropathy that appears within weeks or 
months of exposure to an herbicide agent and resolves within 
two years of the date of onset.  38 C.F.R. § 3.309(e).

Even if an veteran is found not entitled to a regulatory 
presumption of service connection, the claim must still be 
reviewed to determine if service connection can be 
established on a direct basis.  See Combee v. Brown, 34 F.3d 
1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and 
Radiation Exposure Compensation Standards (Radiation 
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 
2727-29 (1984), does not preclude a veteran from establishing 
service connection with proof of actual direct causation).

The Secretary shall consider all information and lay and 
medical evidence of record in a case before the Secretary 
with respect to benefits under laws administered by the 
Secretary.  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. § 5107(b) 
(West 1991 & Supp. 2002); see also Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

III.	Service connection for Type II diabetes mellitus 
associated with herbicide exposure.

In this case, the veteran claims that service connection for 
Type II diabetes is warranted because this condition was 
incurred as a result of his exposure to Agent Orange and 
other chemicals while on board a ship near Vietnam.

Based on the evidence of record, the veteran is not entitled 
to a presumption of service connection under 38 C.F.R. § 
3.313 based on service in Vietnam.  The provisions of 38 
C.F.R. § 3.313 are very clear: "service in the waters off-
shore" is not sufficient, but rather, the service in the 
waters off-shore must include "duty or visitation in 
Vietnam."  While the veteran clearly was diagnosed with 
diabetes several years after service, and he did serve in the 
waters off the shore of Vietnam aboard the U.S.S. Tolovana 
(AO-64), his conditions of service did not involve actual 
duty or visitation in the Republic of Vietnam.  As his 
service records show, his service duty did not involve land 
operations in Vietnam.  Moreover, the veteran submitted no 
evidence or statements maintaining service in land operations 
in Vietnam.  None of the evidence of record demonstrates that 
the veteran served in Vietnam, therefore, or served in other 
locations which involved actual duty or visitation in the 
Republic of Vietnam.  His service was limited to service in 
the waters off-shore.

Therefore, presumptive service connection for diabetes due to 
herbicide exposure is not warranted.  38 C.F.R. §§ 3.307, 
3.309.  Furthermore, the veteran does not contend, and the 
record does not show, that the diabetes began within one year 
after service.  Therefore, the one-year presumptive period 
provided in 38 C.F.R. §§ 3.307 and 3.309 is inapplicable.

The Board has considered the veteran's lay contentions that 
his diabetes may have resulted from exposure to barrels of 
Agent Orange and other chemicals on his ship.  None of the 
evidence received by the RO, however, indicated that the 
U.S.S. Tolovana (AO-64) transported herbicide barrels from 
the waters off Vietnam to the Philippines, as he claimed.  
Furthermore, as a layperson, the veteran is not competent to 
provide an opinion requiring medical knowledge, such as a 
question of medical causation or etiology.  Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992); see also Bostain v. West, 
11 Vet. App. 124, 127 (1998) (lay testimony is not competent 
to establish, and therefore not probative of, a medical 
nexus).

Last, the evidence of record does not support a grant of 
service connection for diabetes on a direct basis.  The 
veteran's active service medical records and his January 1973 
separation examination showed no findings or complaints of 
diabetes.  Medical treatment records from his reserve service 
between January 1973 and December 1983 likewise show no 
findings or complaints for diabetes.  A December 1983 record 
does show a 1+ reading of sugar from the veteran's 
urinalysis, for which medical personnel recommended that the 
veteran seek private medical treatment.  This high reading is 
consistent with post-service evidence showing high blood 
sugar readings beginning in June 1986.  But the first 
documented diabetes diagnosis is not shown until June 1989, 
almost 16 years after the veteran's discharge from active 
service.          

The Board notes that, while several physicians have diagnosed 
the veteran with diabetes, none of the accompanying treatment 
records or physician's reports suggests any causal 
relationship between his diabetes and his military service.  
Consequently, service connection for diabetes on a direct 
basis must be denied.

In conclusion, the Board finds that the preponderance of the 
probative evidence of record shows that the veteran's 
diabetes is neither causally related to his active service or 
any incident therein, including his claimed exposure to Agent 
Orange.  As the preponderance of the evidence is against the 
veteran's claim of service connection for diabetes, the 
benefit of the doubt doctrine is not for application in the 
instant case, and the claim must be denied.  38 U.S.C.A. § 
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz 
v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

ORDER 

Service connection for Type II diabetes mellitus associated 
with herbicide exposure is denied.  



                  
_________________________________________________
	John E. Ormond, Jr.
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs