Citation Nr: 1000402	
Decision Date: 01/05/10    Archive Date: 01/15/10

DOCKET NO.  03-12 213A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUE

Entitlement to service connection for diabetes mellitus, Type 
II.


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

L. Cramp, Counsel




INTRODUCTION

The Veteran had active service from March 1968 to February 
1972.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a March 2003 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, 
New Mexico, sent to the Veteran under cover letter from the 
RO in Oakland, California.

The Board notes that, although the Veteran requested a BVA 
hearing in his May 2003 substantive appeal (VA Form 9), he 
specifically withdrew his request in a March 2007 letter, 
signed by him.  


FINDINGS OF FACT

1.  The Veteran did not serve in the Republic of Vietnam 
during the Vietnam era, and was not exposed to herbicides 
during service.

2.  Type II diabetes mellitus is not etiologically related to 
an injury or disease in service.


CONCLUSION OF LAW

Type II diabetes mellitus was not incurred in or aggravated 
by service, and such incurrence or aggravation may not be 
presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 
38 C.F.R. §§3.303, 3.307, 3.309 (2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002 & Supp. 2009)) includes enhanced duties to notify 
and assist claimants for VA benefits.  VA regulations 
implementing the VCAA were codified as amended at 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).

Notice requirements under the VCAA essentially require VA to 
notify a claimant of any evidence that is necessary to 
substantiate the claim(s), as well as the evidence that VA 
will attempt to obtain and which evidence he or she is 
responsible for providing.  See, e.g., Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (addressing the duties 
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  
As delineated in Pelegrini v. Principi, 18 Vet. App. 112 
(2004), after a substantially complete application for 
benefits is received, proper VCAA notice must inform the 
claimant of any information and evidence not of record (1) 
that is necessary to substantiate the claim(s); (2) that VA 
will seek to provide; (3) that the claimant is expected to 
provide; and (4) must ask the claimant to provide any 
evidence in her or his possession that pertains to the 
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).  The 
Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 
has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 
(April 30, 2008).  Notably, the final rule removes the third 
sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA 
will request that a claimant provide any pertinent evidence 
in his or her possession.

VA's notice requirements apply to all five elements of a 
service connection claim: veteran status, existence of a 
disability, a connection between a Veteran's service and the 
disability, degree of disability, and effective date of the 
disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006). 

VCAA-compliant notice must be provided to a claimant before 
the initial unfavorable decision on a claim for VA benefits 
by the agency of original jurisdiction (in this case, the 
RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled 
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 
1339 (Fed. Cir. 2003).  However, the VCAA notice requirements 
may, nonetheless, be satisfied if any errors in the timing or 
content of such notice are not prejudicial to the claimant.  
Id.

In this appeal, in a July 2002 pre-rating letter, the RO 
provided notice to the appellant regarding what information 
and evidence was needed to substantiate the claim for service 
connection, as well as what information and evidence must be 
submitted by the appellant, and what information and evidence 
would be obtained by VA.  Another such letter was sent in 
March 2004.  An October 2009 letter provided the Veteran with 
information pertaining to the assignment of disability 
ratings and effective dates, as well as the type of evidence 
that impacts those determinations, consistent with 
Dingess/Hartman.  After issuance of the October 2009 letter, 
and opportunity for the Veteran to respond, the October 2009 
supplemental statement of the case reflects readjudication of 
the claim.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 
(2006) (the issuance of a fully compliant VCAA notification 
followed by readjudication of the claim is sufficient to cure 
a timing defect).

The record also reflects that VA has made reasonable efforts 
to obtain or to assist in obtaining all relevant records 
pertinent to this matter.  Pertinent medical evidence 
associated with the claims file consists of VA and private 
treatment records, and the report of a January 2003 VA 
examination.  The Board acknowledges that a medical opinion 
has not been obtained regarding a nexus between the Veteran's 
diabetes mellitus and service.  However, as will be discussed 
in more detail below, the evidence deemed credible by the 
Board demonstrates no injury or disease in service that may 
be related to current Type II diabetes mellitus.  As such, 
there is no duty to obtain a medical opinion regarding nexus; 
and indeed, such an opinion would be speculative, at best.  
See 38 U.S.C.A. § 5103A(d).

Also of record and considered in connection with the appeal 
are various statements submitted by the Veteran.  The Board 
finds that no additional RO action to further develop the 
record is warranted. 

II.  Analysis

The Veteran is seeking service connection for Type II 
diabetes mellitus, on the basis that it resulted from 
exposure to herbicides during service.  The Veteran stated in 
his notice of disagreement that he served aboard the Herbert 
J. Thomas (a destroyer) at a time when it was stationed in 
the waters off Vietnam.  He stated that he drank the water 
and breathed the air.  He also stated that, on several 
occasions, he was flown by helicopter to the Danang hospital 
to pick up medical supplies and mail and return to the ship.  

Veterans are entitled to compensation from the Department of 
Veterans Affairs if they develop a disability "resulting from 
personal injury suffered or disease contracted in line of 
duty, or for aggravation of a preexisting injury suffered or 
disease contracted in line of duty."  38 U.S.C. § 1110.  To 
establish a right to compensation for a present disability, a 
veteran must show: "(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"-the so-called "nexus" requirement.  
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
Holton v. Shinseki, 557 F.3d 1362 (2009).  Additionally, for 
veterans who have served 90 days or more of active service 
during a war period or after December 31, 1946, certain 
chronic disabilities, such as diabetes mellitus, are presumed 
to have been incurred in service if manifest to a compensable 
degree within one year of discharge from service.  
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  
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).

Diseases associated with exposure to certain herbicide agents 
used in support of military operations in the Republic of 
Vietnam (Vietnam) during the Vietnam era will be considered 
to have been incurred in service.  38 U.S.C.A. § 1116(a)(1).  
The presumption requires exposure to an herbicide agent and 
manifestation of the disease to a degree of 10 percent or 
more within the time period specified for each disease.  
38 C.F.R. § 3.307(a)(6)(ii).  The presumption may be rebutted 
by affirmative, though not necessarily conclusive, evidence 
to the contrary.  38 U.S.C.A. § 1113(a); 38 C.F.R. 
§ 3.307(d).

The following diseases are associated with herbicide exposure 
for purposes of the presumption: chloracne or other acneform 
disease consistent with chloracne, type 2 diabetes (also 
known as type II diabetes mellitus or adult-onset diabetes), 
Hodgkin's disease, chronic lymphocytic leukemia, 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 sarcoma (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or 
mesothelioma).  38 C.F.R. § 3.309(e).

A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the Vietnam era, and 
has a disease listed at 38 C.F.R. § 3.309(e), shall be 
presumed to have been exposed during such service to an 
herbicide agent containing dioxin, such as Agent Orange, 
unless there is affirmative evidence to establish that the 
Veteran was not exposed to any such agent during that 
service.  38 C.F.R. § 3.307(a)(6)(iii).  Furthermore, even if 
a veteran does not have a disease listed at 38 C.F.R. 
§ 3.309(e), he or she is presumed to have been exposed to 
herbicides if he or she served in Vietnam between January 9, 
1962, and May 7, 1975, 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).

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).  An 
opinion of the General Counsel for VA held that service on a 
deep-water naval vessel off the shores of Vietnam may not be 
considered service in the Republic of Vietnam for purposes of 
38 U.S.C. § 101(29)(A), which defines the Vietnam era as the 
period beginning on February 28, 1961, and ending on May 7, 
1975, and that this was not inconsistent with the definition 
of service in the Republic of Vietnam found in 38 C.F.R. 
§ 3.307(a)(6)(iii).  VAOPGCPREC 27-97 (July 23, 1997).  A 
veteran must demonstrate actual duty or visitation in the 
Republic of Vietnam to have qualifying service.  Id.  Since 
issuance of that General Counsel opinion, VA has reiterated 
its position that service in deep-water naval vessels 
offshore of Vietnam (as opposed to service aboard vessels in 
inland waterways of Vietnam) is not included as "service in 
the Republic of Vietnam" for purposes of presumptive service 
connection for Agent Orange diseases.  See comments section 
in Federal Register announcement of final rule adding 
diabetes to the list of Agent Orange presumptive diseases, 66 
Fed. Reg. 23166 (May 8, 2001).

Subsequently, in May 2008, the Federal Circuit held that the 
interpretation by the Department of Veterans Affairs (VA) of 
the phrase "served in the Republic of Vietnam," which 
required the physical presence of a veteran within the land 
borders of Vietnam during service, was a permissible 
interpretation of 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. 
§ 3.307(a)(6)(iii).  The United States Supreme Court, 
declined to review the case, and the decision of the Federal 
Circuit in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) is 
now final.

The Board notes initially that, the Veteran does not contend, 
and the evidence does not suggest, that he engaged in combat 
with the enemy for purposes of the combat presumption 
afforded under 38 U.S.C.A. § 1154 (b) (West 2002); 38 C.F.R. 
§ 3.304(d) (2009).

In addition, the Board notes that the existence of a current 
disability is not at issue in this case.  The report of a 
January 2003 VA examination reveals a diagnosis of diabetes 
mellitus, which was first diagnosed in January 2001, almost 
30 years after the Veteran's discharge.  Thus, the 
presumption of service connection for certain chronic 
diseases that become manifest to a degree of 10 percent or 
more within one year of separation does not attach.  See 
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

The Veteran contends that he developed Type II diabetes from 
Agent Orange exposure during visits to Vietnam.  However, the 
Veteran's service personnel records do not show that the 
Veteran was ever physically present in the Republic of 
Vietnam for active duty service.  Rather, they show that he 
served in the U.S. Navy aboard several naval vessels.  
Regarding the Veteran's assertion that he made several trips 
ashore by helicopter to pick up supplies and mail, the 
Veteran is certainly competent to describe his duties, 
including trips ashore; however, in this case, the Board 
finds that his statements are inconsistent with evidence that 
the Board deems more reliable.  As such, they are accorded 
little probative weight.  

In so concluding, the Board notes that the Veteran has not 
provided the exact dates of his claimed excursions ashore in 
Vietnam.  The Board acknowledges that the National Personnel 
Records Center has confirmed that the Veteran had service in 
the waters off Vietnam from July 4, 1969 to August 2, 1969, 
from August 24, 1969 to September 14, 1969, and from October 
7, 1969 to November 1, 1969.  The deck logs from the U.S.S. 
Herbert J. Thomas reveal that, from October 8, 1969 to 
October 26, 1969, the Thomas performed naval gunfire support 
in operating areas off the South Vietnam coast.  Then, from 
October 26, 1969 to November 1, 1969, the Thomas was at 
Yankee Station in the Tonkin Gulf, performing plane guarding 
duties.  

However, pertinent to the Veteran's assertion regarding 
helicopters transferring him from a naval destroyer to shore 
for the purpose of obtaining supplies and mail, the Veteran 
has provided no detail as to the necessity for, or the 
logistics of, such a procedure.  The Board does not presume 
that landing a helicopter on a destroyer is a routine 
procedure, and the Veteran has not provided any detail other 
than his assertion that it happened several times.  Indeed, 
the deck logs from the Thomas make reference to several 
routine transfers of supplies and mail; however, these 
references do not appear to involve flying medical corpsmen, 
such as the Veteran, by helicopter, to onshore facilities and 
back.  Rather, the deck logs refer to patrol boats retrieving 
outgoing mail (and ice cream), as well as eleven "underway 
replenishments" consisting of fuel, ammunition, food, and 
supplies.  While the Naval Historical Center cautioned that 
deck logs do not normally list arriving or departing 
passengers by name, the logs in this case do not mention any 
helicopter flights to shore, such as described by the 
Veteran.  Moreover, by detailing what appear to be routine 
underway replenishments and transfers of mail, conducted by 
other naval vessels, the overall picture presented by a 
reading of the deck logs casts significant doubt on the 
Veteran's account.

Finally, in evaluating the Veteran's account, the Board notes 
that the Veteran did not mention his excursions to shore 
until after the initial denial of his claim, which was denied 
because he did not have the "required service in Vietnam."  
The Board finds that the timing of his recent recollections 
casts additional doubt on the veracity of his account.  In 
sum, for the reasons set out above, the Board finds that the 
Veteran's account regarding any visitation ashore in Vietnam 
is lacking in detail, is inconsistent with the record, and is 
ultimately lacking in credibility.  As the Board gives the 
Veteran's account less probative weight, the Board is thus 
left with the Veteran's service records, which verify only 
his service aboard ship.  While the Veteran's DD-214 shows 
that he was awarded the VSM, the award of this medal does not 
in and of itself entitle the Veteran to presumption to 
exposure to Agent Orange.  As the requisite service in 
Vietnam is not shown, the presumption of exposure to 
herbicides does not attach.  

The Veteran has not asserted actual exposure to herbicides, 
and there is no evidence of such.  Thus, the evidence 
demonstrates no injury or disease in service that may be 
related to the Veteran's current diabetes mellitus.  
Moreover, there is no medical opinion that purports to relate 
diabetes to any injury or disease in service.  The Veteran 
certainly believes that there is such a relationship; 
however, he is not shown to possess the requisite medical 
knowledge or training to offer an opinion regarding the 
etiology of diabetes mellitus.  In sum, the criteria for 
service connection are not met.

In reaching this conclusion, the Board has considered the 
applicability of the benefit-of-the-doubt doctrine.  However, 
as the preponderance of the evidence is against the claim, 
that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) 
(West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 
1 Vet. App. 49, 53-56 (1990).




ORDER

Service connection for diabetes mellitus, Type II, is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs