Citation Nr: 1006499 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 05-36 824A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure. The Veteran was scheduled to appear before the Board at the RO in St. Petersburg, Florida, on October 21, 2009. However, the Veteran did not report to the hearing, and has not provided an explanation for his absence. As such, the Veteran's request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.703 (2009). FINDINGS OF FACT 1. The evidence of record does not establish that the conditions of the Veteran's period of active service involved duty or visitation within the land borders of the Republic of Vietnam. 2. The evidence does not show that the Veteran was exposed to tactical herbicide agents aboard ship during his period of active service. 3. There is no evidence that diabetes mellitus manifested during the Veteran's period of active service or any applicable presumptive period thereafter. CONCLUSION OF LAW Diabetes mellitus was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist the Appellant The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In a July 2004 letter, before the initial adjudication of the claim, the Veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agencies, or companies who had additional records to help decide his claim. He was informed that VA would attempt to review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. There is no allegation from the Veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes: (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA- authorized medical records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. See 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes: (1) a current disability or persistent or recurrent symptoms of a disability; (2) an in-service event, injury, or disease; and (3) the current disability may be associated with the in-service event, but (4) there is insufficient evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been provided with a medical examination in relation to his claim regarding diabetes mellitus. However, such examination is not required in this case. The Board is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). Here, the evidence does not establish that the Veteran suffered an in-service event, injury, or disease related to the claimed condition. Instead, his claim essentially relies upon the assertion that his diabetes mellitus should be afforded presumptive service connection due to herbicide exposure. As discussed in full below, the Board finds that the preponderance of the evidence is against a finding of an in-service incurrence of the claimed condition. Furthermore, the evidence does not show that the Veteran was directly or presumptively exposed to herbicides while serving off the shores of the Republic of Vietnam. Therefore, without an in- service event, injury, or disease related to the claimed condition, there is no duty to provide a VA medical exam or further medical opinion. See 38 C.F.R. § 3.159(c)(4) (2009). In this case, the Veteran's service treatment records and all identified and authorized post-service treatment records, including those maintained by the Social Security Administration, relevant to the issue on appeal have been requested or obtained. Accordingly, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Service Connection The Veteran seeks service connection for diabetes mellitus, to include as secondary to herbicide exposure. In order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection, in this case, diabetes mellitus, manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Also, specific diseases, to include Type 2 diabetes mellitus or adult-onset diabetes, have been found to be associated with exposure to certain herbicide agents used in the Republic of Vietnam. 38 C.F.R. § 3.309(e) (2009). As such, if a Veteran is found to have been exposed to tactical herbicides during his military service, such as the chemical defoliant commonly known as "Agent Orange," service connection of a disease associated with that exposure is warranted on a presumptive basis even though there is no record of any such disease in service. Id.; see also 38 C.F.R. § 3.307(a)(6) (2009). The evidence does not show, nor does the Veteran contend that he experienced the onset of diabetes mellitus during his period of active service. His service treatment records do not reflect any complaints of, nor treatment sought for, any problem related to blood sugar or symptoms of diabetes. Without an in-service incurrence or aggravation of disease, service connection of diabetes mellitus is not warranted on a direct basis. 38 C.F.R. § 3.303. Furthermore, the first clinical evidence of record reflecting treatment for Type 2 diabetes is dated in November 2002. There is no evidence that the Veteran was diagnosed with diabetes before November 2002, over three decades after separation from military service. Presumptive service connection for diabetes as a chronic disease is not warranted unless diabetes manifested itself to a compensable degree within one year of separation from service, in this case, no later than June 1972. 38 C.F.R. §§ 3.307, 3.309. However, the Veteran contends, in his April 2005 Notice of Disagreement, that presumptive service connection for his diabetes mellitus is warranted due to exposure to herbicides during his service off the coast of the Republic of Vietnam. Specifically, the Veteran asserts that he had close proximity to the Republic of Vietnam and observed aircraft deploying defoliant passing over his vessel on several occasions. Regulations state that a Veteran who, during active military, naval, or air service, served in Vietnam between January 1962 and May 1975 shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2009). However, service "in" the Republic of Vietnam has been interpreted as requiring a Veteran to have set foot on land in the Republic of Vietnam rather than mere shipboard service in offshore waters. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied (finding foot-on-land rule to be permissible statutory interpretation); see also 38 U.S.C.A. § 1116(a)(3) (West Supp. 2009); 38 C.F.R. § 3.307(a)(6)(iii) (2009). Report of the National Personnel Records Center, dated in August 2004, indicates that the Veteran was aboard a ship that was in the official waters of the Republic of Vietnam. Specifically, the ship to which the Veteran was assigned, the U.S.S. Noa (DD 841), was in the official waters of the Republic of Vietnam on four occasions in 1969. Thus, it is undisputed that the Veteran served in the official waters of the Republic of Vietnam. While the Veteran served in the official waters of the Republic of Vietnam, the evidence does not show that the Veteran's service aboard the U.S.S. Noa was such that he ever "set foot" upon the ground of Vietnam as required for presumptive service connection based upon herbicide exposure to apply. Report of Contact dated in September 2004 indicates that the Veteran stated that he had never stepped foot on land in the Republic of Vietnam. Therefore, while the Veteran's service may have brought him in relatively close proximity to the Republic of Vietnam, the evidence does not show, nor does the Veteran contend that he was physically present within the boundaries of the Republic. Accordingly, he is not entitled to presumptive service connection based upon herbicide exposure. Haas, supra; 38 C.F.R. §§ 3.307, 3.309 (2009). The Board acknowledges the Veteran's contentions, as made in his above-referenced April 2005 Notice of Disagreement, that he observed aircraft deploying defoliant passing over his vessel on several occasions. However, a May 2009 Memorandum from the U.S. Army & Joint Services Record Research Center (JSRRC), has explicitly found that no evidence, to include a thorough review of ships histories, deck logs, and other official military documents, indicates that any Navy or Coast Guard ship is known to have used, stored, tested, or transported tactical herbicides off the coast of Vietnam. The JSRRC also found no evidence to indicate that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over the Republic of Vietnam, or equipment used therein. Therefore, after considering all of the evidence of record, the Board finds that there is no evidence that the Veteran was directly or presumptively exposed to herbicides during his service in the offshore waters of the Republic of Vietnam. As such, presumptive service connection for diabetes mellitus based on exposure to herbicides is not warranted. Also, as previously discussed, the evidence does not show that service connection for diabetes mellitus is warranted under any other theory of entitlement. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and the Veteran is sincere in his belief that his current diabetes mellitus is related to his period of active service. While the Board is sympathetic to the Veteran's contentions, in the final analysis, the preponderance of the competent medical evidence of record does not establish the necessary nexus to service and does not support his assertions. The Board has considered the applicability of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and the claim of entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, must be denied. ORDER Service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs