Citation Nr: 1237448 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-28 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran had active service in the Republic of Vietnam, that his ship ever docked in Vietnam, or that he was ever on the landmass or inland waters of Vietnam during the Vietnam era. 2. There is no competent and credible evidence establishing that the Veteran was actually exposed to Agent Orange during his service. 3. Diabetes mellitus was not shown in service or for many years thereafter; and, there is no competent evidence suggesting the disorder is related to service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2006 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2009. Nothing more was required. Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records and followed the proper procedures for attempting to substantiate the Veteran's claim of presumptive herbicide exposure. In March 2009, the RO sent a letter to the Veteran asking about the particulars of his claimed herbicide exposure, to which he responded in April 2009. Based on the information he provided, the RO sent a request to the National Archives and Records Administration (NARA), seeking to confirm the Veteran's assertions. A formal response from NARA is of record. See May 2010 NARA letter. The Veteran also submitted private treatment records, personal statements and internet articles in support of his appeal. The Board has determined a VA examination is not necessary to assess the nature or etiology of the Veteran's diabetes mellitus. As the information and evidence of record is sufficient to decide the claim, VA need not conduct an examination with respect to the claim on appeal. See 38 C.F.R. § 3.159(c)(4) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the evidence does not suggest and the Veteran does not contend that he suffered from diabetes during service or within the year following discharge. There is also no competent and credible evidence that the Veteran was ever physically on land in Vietnam during service or otherwise exposed to herbicides. Moreover, there is no evidence indicating an association between the Veteran's diabetes and his military service. Therefore, a VA examination is not warranted. Id. For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, the Board will proceed to a decision. II. Service Connection Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). 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, 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. 38 C.F.R. § 3.307(a)(6)(iii). A veteran is entitled to a presumption of service connection if he is diagnosed with type II diabetes mellitus as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "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. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). 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. A private physician's note from Dr. A.J.K., dated September 2006, indicates that the Veteran was diagnosed with type II diabetes mellitus "23 years" ago. Additional private treatment notes ranging from August 2000 to March 2009 document ongoing treatment for the same. As this is a current disability, what remains to be shown is that this condition was incurred in or aggravated by the Veteran's service, to include as based on exposure to herbicides. The Veteran's DD Form 214 shows that his only duty assignment was aboard the USS Renville. Service personnel records show that the Veteran was awarded the Armed Forces Expeditionary Medal for his service aboard the USS Renville from August 1964 to October 1964, for the Vietnam area of operations. None of his service records reflect any service in Vietnam. The Veteran initially contended that he was entitled to presumptive herbicide exposure because he served aboard the USS Renville, which he stated "ranged the coast of Vietnam from Da Nang to Saigon" during August 1964. See November 2006 statement, quoting from an internet article submitted by the Veteran. To the extent the Veteran contends presumptive herbicide exposure due to presence in the coastal waters of Vietnam, the Board notes that coastal waters do not constitute an inland waterway. Accordingly, such service does not entitle the Veteran to the presumption of herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008); VA Adjudication Procedure Manual, M21-1MR, IV.ii.1.H.28.h ("Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Republic of Vietnam coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides."). In March 2009, the Veteran asserted that the USS Renville pulled into port at Da Nang and that he deboarded the ship for shore patrol, exposing him to Agent Orange. Development conducted by the RO contradicts the Veteran's assertion. Researchers from NARA reviewed deck logs from the USS Renville spanning from November 1962 to March 1965. A formal memorandum from NARA shows that "the only time the USS Renville was off Vietnam was August to December 1964. Deck logs document no port calls in South Vietnam during these months." Here, the Board finds the objective evidence of the USS Renville deck logs, which were created contemporaneously with the events of the time, to be more probative than the Veteran's assertions that the USS Renville went ashore. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). Deck logs from the time period in question are negative for any port calls to the Republic of Vietnam. The Board finds that these logs, created in the regular course of business, provide highly probative evidence that no port calls were in fact made. See also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Additionally, internet articles, submitted by the Veteran, show only that the USS Renville "ranged the coast" of Vietnam from Da Nang to Saigon for a time beginning in August 1964. There is no evidence of record, other than the Veteran's own assertions, to refute that the USS Renville did not make any port calls to the Republic of Vietnam while the Veteran was in service. Accordingly, the Board finds the Veteran's statements asserting that he set foot in Vietnam lack credibility and are without probative value. See, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). As the probative evidence of record does not demonstrate that the Veteran set foot in Vietnam, he is not entitled to presumptive herbicide exposure and his type II diabetes mellitus claim cannot be granted on these grounds. The fact that the Veteran is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, the medical evidence of record contains no objective findings of diabetes until 1983, more than 18 years after separation from service. The record also does not include any medical opinion suggesting his diabetes arose during service, nor does the Veteran contend such. Service treatment records are entirely silent for any complaints, findings, or treatment for diabetes mellitus. Moreover, none of the medical evidence suggests that the Veteran's diabetes is related to his military service. Therefore, the Veteran's claim for service connection for diabetes must be denied on a direct basis, in addition to on a presumptive basis as a chronic condition pursuant to 38 C.F.R. § 3.309(a). In conclusion, after careful review of the medical and lay evidence of record and the pertinent law and regulations, the Board finds that there is no competent evidence that the Veteran was exposed to herbicides during his service. The presumption of service connection thereby does not attach. The Veteran does not contend, and the evidence does not show, that his diabetes arose during service or within one year following discharge from service. Moreover, there is no competent evidence linking his diabetes to service and no competent evidence establishing that the Veteran was actually exposed to herbicides during his service. His assertion of exposure is outweighed by the service records discussed above, which do not establish exposure. As such, service connection for type II diabetes mellitus is not warranted, and the claim must be denied. In reaching the conclusion above, 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 in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for type II diabetes mellitus, to include as a result of exposure to herbicides, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs