Citation Nr: 1242122 Decision Date: 12/10/12 Archive Date: 12/20/12 DOCKET NO. 03-28 779A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure including Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1961 to August 1965. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2006, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) at the RO; that VLJ is no longer employed at the Board and the Veteran was offered the opportunity for a new Board hearing. In June 2009, the Veteran testified at a Board personal hearing before the undersigned VLJ in Washington, D.C. Transcripts of the hearings are of record. The Board remanded this case for further development in August 2009 and November 2011. All development has been completed and the case is once again before the Board. FINDINGS OF FACT 1. The Veteran does not have "service in the Republic of Vietnam," was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service. 2. The Veteran was not exposed to Silvex in service. 3. The Veteran did not sustain an injury or disease of the endocrine system in service. 4. Symptoms of diabetes mellitus were not chronic in service and were not continuous after service separation. 5. Symptoms of diabetes mellitus did not manifest to a compensable degree within one year of separation from service. 6. Diabetes mellitus is not related to an in-service injury, disease, or event. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In a January 2002 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. In December 2009 and April 2010 VCAA notice letters included provisions for disability ratings and for the effective date of the claim. The RO readjudicated the case in subsequent supplemental statements of the case (SSOC), thus curing any VCAA notice timing issues associated with the later December 2009 and April 2010 notice letters. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a statement of the case (SOC) or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Id. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA and private treatment records, the Veteran's statements and testimony, and various research articles submitted by the Veteran. During the June 2009 Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony to claimed in-service exposure to herbicides and suggested that he obtain evidence regarding such exposures and a relationship between current diabetes and the exposures. Service treatment records are unavailable for review in this case. The RO requested service treatment records and personnel records from the National Personnel Records Center (NPRC). A December 2002 response shows that, after an extensive search of the records among their holdings, they were unable to locate those records. The NPRC concluded that the records either did not exist or that further efforts to locate them at the NPRC would be futile. In cases where a veteran's service treatment records are unavailable through no fault of his own, there is a "heightened duty" to assist in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes the obligation to search for alternate medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). The Board finds that VA has satisfied its duty to assist the Veteran in the development of the case by attempting to verify his claimed in-service exposures through official sources, and by supplementing the record with alternate documents that could substitute for absent service records. While service treatment records are not available in this case, the Veteran does not contend that he had any in-service treatment for symptoms or manifestations of diabetes mellitus, but instead indicates that diabetes mellitus is related to in-service exposure to Agent Orange and other chemicals. For these reasons, the Board finds that the development of the case has been appropriately focused on an attempt to verify the Veteran's claimed exposures. A May 2009 memorandum from the U.S. Army and Joint Services Records Research Center (JSRRC) shows that a review of ships histories, deck logs, and other sources of information related to the Navy did not document or verify exposure to tactical herbicide agents aboard Navy ships during the Vietnam era. Pursuant to August 2009 and November 2011 Board remands, the Appeals Management Center (AMC) made additional attempts to verify through official sources the Veteran's claimed exposure to herbicides and Silvex in service. The Veteran was notified in a November 2010 letter that VA was attempting to verify his claimed in-service Agent Orange exposure through the National Archives and Records Administration, the Naval History and Heritage command, and through Naval Personnel Records. The AMC requested copies of deck logs for the U.S.S. Kitty Hawk for the period from May 1964 to June 1964. Relevant ship histories were received from the Navy Textual Archives Services Divisions and were associated with the record. The AMC also attempted to corroborate the Veteran's claimed exposure to herbicide agents at the San Diego Naval Base. A review of the Department of Defense (DOD) list of sites associated with herbicide use or testing did not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any location in San Diego, California. The AMC also requested information from the Naval History and Heritage Command and the Naval Sea Systems Command regarding documentation related to the desalination process used aboard the U.S.S. Kitty Hawk, to include an inquiry about what chemicals were involved aboard the ship. In a July 2011 letter, the Veteran was informed of the negative responses received and was informed that he could obtain and submit any such record directly to VA. The AMC received correspondence in August 2011 from the Naval Sea Systems Command, Surface Ship Water Systems Engineering Manager, regarding chemical used in distillation process aboard the U.S.S. Kitty Hawk. The AMC also received a memorandum from the Naval Sea System Command showing that one document pertaining to the U.S.S. Kitty Hawk and Distilling Plants was found, and this document was associated with the claims file. In a June 2012 telephone correspondence, the AMC informed the Veteran that of the negative responses they received from the Naval Sea Systems Command. The Veteran stated that he had already sent in all of the information he had with regard to the case, and reported that he did not have any other information to send. Based on the foregoing development, the Board finds that the AMC complied with directives of the August 2009 and November 2011 Board remands. This development included a search for alternate records from official sources to help verify the Veteran's claim. See Moore, 1 Vet. App. at 401. The Board finds, consistent with the NPRC responses and JSRRC and AMC memorandums, that further efforts to obtain service records and other documents verifying the claimed use of herbicides and other identified chemicals aboard the U.S.S. Kitty Hawk would be futile. The Veteran was asked both in written correspondence and during a June 2012 telephone conversation to provide any relevant records in his possession; however, the Veteran has stated that he had no other information to send. For these reasons, the Board finds that development completed in this case is adequate, that VA has complied with procedures for determining whether the Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam as delineated in VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10(o). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, because the weight of the evidence demonstrates that the Veteran was not exposed to herbicides in service, there was no injury to or disease of the endocrine system in service, and diabetes mellitus had its onset years after service separation, there is no duty to provide a VA medical examination. The Board finds that the weight of the evidence demonstrates no symptoms in service and no continuity of diabetes mellitus symptoms since service separation. Thus, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for diabetes mellitus because there is nothing in service to which any current disabilities could be related by competent opinion. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as diabetes mellitus or an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may 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, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service 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) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of herbicide exposure is warranted for 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); see also 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). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. 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.A. § 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. 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. 66 Fed. Reg. 23166 (May 8, 2001). Despite the foregoing, it has been established that some offshore U.S. Navy and Coast Guard ships also operated temporarily on Vietnam's inland waterways or docked to the shore; and, certain ships operated primarily on the inland waterways rather than offshore. Veterans who served aboard these ships qualify for the presumption of herbicide exposure. Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" navy because they operated on the blue-colored waters of the open ocean. Although some Blue Water Navy destroyers were involved with enemy interdiction, the majority of those operations were conducted by smaller vessels based along the coast or within the river systems of South Vietnam. These vessels are collectively referred to as the "Brown Water" navy because they operated on the muddy, brown-colored inland waterways of Vietnam. In general, patrolling of close coastal waters and the larger rivers was conducted by 50-foot swift boats while patrolling of smaller rivers and waterways was carried out by 30-foot river patrol boats. Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area. Following these temporary inland waterway operations, destroyers would return to patrolling the offshore gun line or travel farther out to sea for aircraft carrier escort duty. A number of Blue Water Navy amphibious assault and supply vessels also periodically entered inland waterways to deliver troops for combat missions or supplies for units stationed on the rivers. See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension Service). In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. In claims based on docking, a lay statement that the veteran personally went ashore must be provided. Although evidence that a veteran's ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. Open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau are considered extensions of ocean waters and not inland waterways. They are not considered similar to the rivers, canals, and estuaries that make up the inland waterway system. Blue Water Navy ships occasionally entered these open water harbors and anchored temporarily without docking to take on fuel from harbor barges. Sometimes ships would briefly anchor so that ranking officers could attend strategy meetings ashore. In such cases, a small board manned by a coxswain would usually ferry the officers ashore. Deck logs and ship's histories will generally not provide names of personnel going ashore from anchorage. However, evidence that a claimant served as a coxswain aboard a ship at anchorage, along with a statement from the veteran of going ashore, may be sufficient to extend the presumption of exposure. Id. Claims based on statements that exposure occurred because herbicides were stored or transported on the Veteran's ship, or that the Veteran was exposed by being near aircraft that flew over Vietnam or equipment used in Vietnam, do not qualify for the presumption of exposure. The evidence must show that the ship actually docked on the shore and was not anchored in an open deep-water harbor such as Da Nang, Vung Tau, or Cam Ranh Bay. Evidence of shore docking is required. See Veterans Benefits Administration (VBA) Fast Letter 10-37 (September 10, 2010). Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. 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). VA's Secretary has determined that a presumption of service connection based on exposure to 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. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630 -41 (2003); 64 Fed. Reg. 59,232 -243 (1999); 61 Fed. Reg. 57,586 -589 (1996). However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service Connection Analysis The Veteran contends that he has diabetes mellitus as a result of exposure to Agent Orange while serving aboard the U.S.S. Kitty Hawk in the waters off the coast of Vietnam. The Veteran alternately contends that he was exposed an herbicide agent while stationed at the Naval base in San Diego, California. He contends that he had exposure through run off from the coast, the drift of airborne spray, or from exposure to aircraft which flew into Vietnam. A February 2001 VA Agent Orange examination, VA treatment records, and private treatment records show that the Veteran has currently diagnosed diabetes mellitus. Private treatment records show that the Veteran was first diagnosed with diabetes mellitus in 1994. Having considered the Veteran's contentions and statements, and after a review of all the evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran did not have "service in the Republic of Vietnam," was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service to warrant the presumption of service connection. See 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168. The Veteran's DD Form 214 shows that he served in the United States Navy from August 1963 to August 1965 with one year and 11 months of foreign and/or sea service aboard the U.S.S. Kitty Hawk. In May 2009, the JSRRC issued a Memorandum for Record subjected "Research Findings Regarding Navy and Coast Guard Ships During the Vietnam Era" which noted that "to date, the JSRRC has found no evidence that indicates Navy or Coast Guard 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." The memorandum further noted that the JSRRC could not document or verify 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. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.l. A VA Compensation and Pension Service Bulletin from January 2010 included information which provided "information to assist with development in Haas-related disability claims based on herbicide exposure from Navy Veterans." See Compensation and Pension Service Bulletin January 2010. The Bulletin noted that VA had received information that several offshore ("blue water") vessels had operations on inland ("brown water") waterways. The Bulletin provided a list of ships that had "brown water" operations during the Vietnam era. Additionally, the Bulletin identified certain vessel types that operated primarily or exclusively on the inland waterways. The VA Compensation and Pension Service updated the list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents in November 2012. The U.S.S. Kitty Hawk was not listed as a vessel that had inland operations. Additionally, official ship histories show that the U.S.S. Kitty Hawk was stationed off the coast of Vietnam from May 1964 to June 1964 in the South China Sea. The Veteran also submitted a ship history, obtained from the internet, in which he highlighted the October 1965 date from which the U.S.S. Kitty Hawk again departed San Diego, California, for operations off the coast of Vietnam where it was stationed from November 1965 to May 1966; however, this occurred after the Veteran's August 1965 separation from service. The Board finds that the ship histories for the U.S.S. Kitty Hawk obtained from official sources and from the Veteran do not support a finding for exposure to Agent Orange on a presumptive basis. Instead, relevant ship histories confirm that the Veteran had offshore, blue water service aboard the U.S.S. Kitty Hawk in the South China Sea from May 1964 to June 1964 without operations on inland waterways. The Veteran contends that he should be entitled to presumptive service connection because he had service offshore in the waters adjacent to Vietnam. He indicated he was close enough to the shoreline that he could see the trees and combat on shore. VA regulations provide, however, 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.A. § 101(29)(A). See VAOPGCPREC 27-97; 38 C.F.R. § 3.307(a)(6)(iii). Based on the May 2009 JSRRC memorandum, findings from the January 2010 VA Compensation and Pension Service Bulletin, and ship histories from the U.S.S. Kitty hawk, the Board finds that the U.S.S. Kitty Hawk did not conduct operations on inland waterways in Vietnam from May 1964 to June 1964. Additionally, the May 2009 JSRRC memorandum shows that exposure to tactical herbicides based on contact with aircraft has not been confirmed for the purposes of establishing exposure to Agent Orange in service. The Veteran has not contended he went ashore in Vietnam during service. During an August 2006 Board hearing and in an August 2003 statement, the Veteran specifically stated that he did not go ashore in Vietnam and did not have any in country service. In light of the requirement that a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam, the Board finds that the Veteran did not have presumptive exposure to an herbicide agent in service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). After reviewing all the lay and medical evidence, including the Veteran's statements and testimony asserting exposure to herbicides in service, the Board finds that the weight of the evidence demonstrates that the Veteran did not have actual exposure to an herbicide agent in service. As discussed above, the Veteran's service treatment records are not available. The RO made efforts to obtain service treatment records; however, correspondence from JSRRC shows that service treatment records are unavailable. As such, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare, 1 Vet. App. at 367; Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the veteran in developing a claim, and to explain its decision when the veteran's medical records have been lost. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). In the present case, the Veteran does not contend that diabetes mellitus was manifest in service and medical evidence of record shows that diabetes mellitus was first diagnosed in 1994 many years after the Veteran's separation in service. The Veteran contends, instead, that currently diagnosed diabetes mellitus is due to Agent Orange and other chemical exposures in service. As the Board has already discussed above, the RO and AMC have made numerous efforts in an attempt to help verify the Veteran's claimed in-service exposures; however, the Board finds that the weight of the evidence shows that the Veteran was not exposed to an herbicide agent in service. The Veteran has presented several different theories for entitlement to service connection over the course of appeal, all based on alleged exposure to herbicide agents in service, to include Agent Orange and, more recently, Silvex. The Veteran asserts that he was exposed to Agent Orange while aboard the U.S.S. Kitty Hawk through run off from the coast of Vietnam and the drift of airborne spray and through aircraft which flew into and out of Vietnam. He asserts that he was exposed to the herbicide Silvex onboard the ship, which was used in fresh water tanks to kill algae; and he asserts that this chemical has a composition similar to that of Agent Orange. He asserts that he was exposed to herbicide agents through potable water aboard his ship, and that water desalination processes did not remove pesticides from contaminated water. He also asserts that he was exposed to Agent Orange or other herbicide agents which he saw being sprayed at the Naval Base in San Diego, California, for weed control and he asserts that he frequently walked the grounds at the Naval Base. The Veteran is competent to report such exposures; however, the Board finds, due to discrepancies in the Veteran's statements and due to the lack of corroborating evidence in official documents, that the Veteran's lay statements are not credible to establish that he was actually exposed to herbicide agents in service. His lay statements are not credible and have not been corroborated by evidence in official documents. See Bardwell, 24 Vet. App. at 40 (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Inconsistent with his assertion that he was exposed to Agent Orange while aboard the U.S.S. Kitty Hawk through run off from the coast of Vietnam and the drift of airborne spray, the Veteran testified in August 2006 that he never saw Agent Orange being sprayed while he was aboard the U.S.S. Kitty Hawk. While the Veteran claimed exposure through aircraft which flew into and out of Vietnam, the Veteran did not report any specific duty assignments working with such aircraft. Instead, he testified in June 2009 that he worked all over the ship and that he saw people working on planes. Additionally, a May 2009 JSRRC memorandum shows that relevant research efforts could not verify exposure to tactical herbicides based on contact with aircraft that flew over Vietnam. While the Veteran testified in August 2006 that the U.S.S. Kitty Hawk was docked approximately three miles off the coast of Vietnam, he more recently asserted during a June 2012 telephone contact that he was located six strokes from the shore of Vietnam, that he rescued someone off the shores, and that they were spraying chemicals where they went. The Board finds that the Veteran's more recent statements, which were made pursuant to the VA compensation claim, are inconsistent with, and outweighed by, earlier lay history by the Veteran in which he denied witnessing spraying of Agent Orange and in which he asserted that operations aboard the U.S.S. Kitty Hawk were conducted in the waters three miles offshore. Moreover, the Veteran's assertions with regard to exposure to Agent Orange aboard the U.S.S. Kitty Hawk are not corroborated by official service documents. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran was not actually exposed to Agent Orange aboard the U.S.S. Kitty Hawk. With regard to the assertion that he was exposed to herbicide agents through potable water aboard the ship, and that the water desalination processes did not remove herbicides or pesticides from contaminated water, the Veteran submitted various research articles in support of the claim; however, a review of these articles show that they do not sufficiently address the facts of this particular Veteran's case and do not support the proposition for which they are offered. The Veteran has submitted an article addressing levels of TCDD (Dioxin) in Vietnam; however, the article assesses Dioxin levels of fish collected from the interior waters of Vietnam and on the seacoast of Can Goi. The Veteran was not located in the interior waters of Vietnam or on the seacoast of Can Goi. The Veteran submitted an article with respect to Agent Orange contamination at Da Nang Airbase, Vietnam; however, he was never located at the Da Nang Airbase in Vietnam. The Veteran also submitted articles indicating that Dioxin exposure on Navy ships via drinking water "may have been substantial" and that pesticides and industrial organic chemicals "may be difficult to remove" by distillation/condensation. While these articles provide some support for the Veteran's contention that he may have had exposure to chemical agents, to include Dioxin, through the water used aboard his ship, the Board finds that the conclusions made in these articles as described above are speculative and, in the context of other evidence in this case, are insufficient to establish the Veteran's actual exposure Agent Orange in service while aboard the U.S.S. Kitty Hawk. See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996). With regard to the Veteran's assertion that he was exposed to Agent Orange or other herbicide agents which he saw being sprayed at the Naval Base in San Diego, California, for weed control, and that he frequently walked the grounds at the Naval Base, the Board finds that this more recent assertion made by the Veteran is inconsistent with other evidence of record and is not credible. The Veteran first identified his alleged exposure to Agent Orange in San Diego in an April 2010 statement many years into the claim for VA compensation. Such exposure was not identified by the Veteran in his initial claim for benefits in 2001, or for approximately 10 years during the pendency of the claim. The Board finds that, had the Veteran been exposed to Agent Orange in San Diego while he was in service, he had ample opportunity to report such exposure earlier, to include during two separate Board hearings, and he did not do so. The variations and inconsistencies shown with regard to the Veteran's reports as to his in-service exposures tend to show that his statements were made for the sake of compensation, a factor which weighs against his credibility. See Caluza, 7 Vet. App. 498. Further, development consistent with VA's procedures for determining whether the Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam shows that a list of DOD sites associated with herbicide use or testing. The list does not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any location in San Diego. For these reasons, the Board finds that the Veteran was not actually exposed to herbicides, to include Agent Orange, during service. Absent qualifying service in Vietnam, either credible evidence of herbicide exposure or corroborating evidence of actual exposure to herbicides in service, the Board finds that there is no basis for presumptive service connection due to herbicide exposure. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran may also establish service connection for a diagnosed disability with proof of direct causation. See Combee, at 104. As noted above, the Veteran is shown to have a current diagnosis of diabetes mellitus. He has testified that he was exposed to Silvex onboard his ship, which was used in fresh water tanks to kill algae. He asserts that this chemical has a composition similar to that of Agent Orange. The Veteran submitted a list of "Chemical Used in Military Operations" during the Vietnam War. This list supports the Veteran's assertion that Silvex was an herbicide used during the Vietnam War; however, Silvex is listed as a nontactical herbicide agent, whereas Dioxin, or Agent Orange, was included on the list of tactical herbicide agents. The presumption for service connection for disease associated with exposure to certain herbicide agents does not apply to the use of commercial herbicide agents, pesticides, or other chemicals. 38 C.F.R. § 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam, and lists the specific chemical agents at issue. For these reasons, the Board finds that Silvex is not a qualifying herbicide agent within the meaning of 38 C.F.R. § 3.307 for the presumption of service connection. Further, the Board finds that the weight of the evidence demonstrates that the Veteran was not actually exposed to Silvex in service. Research conducted by the Naval Sea System Command shows that Silvex was not used in the distilling plants onboard the U.S.S. Kitty Hawk. An August 2011 response from the Naval Sea Systems Command, Surface Ship Water Systems Engineering Manager shows that distillation plants aboard the ship used minimal chemicals. He stated that chemicals, such as Ameroyl, were used for scale prevention; however, herbicides were not used as part of the distillation process. He stated that the only other chemical used in treatment of distillate was bromine or chlorine in trace amounts to assure proper disinfection of potable water supplies. One document pertaining to the U.S.S. Kitty Hawk and Distilling Plants was associated with the claims file. Required materials in the distilling plants chemical clean and repair aboard the U.S.S. Kitty Hawk were listed; however, the use of Silvex was not indicated. The Board finds that research conducted by the Naval Sea System Command weighs against the Veteran's assertions of exposure to Silvex in the water distillation system aboard the U.S.S. Kitty Hawk. For these reasons, the Board finds that the Veteran's lay assertions as to such exposure are not credible. Similarly, the Board finds that lay testimony from the Veteran's wife with regard to the use of Silvex aboard the U.S.S. Kitty Hawk is not credible in light of findings provided by the Naval Sea Systems Command, Surface Ship Water Systems Engineering Manager. The Veteran's wife did not have actual knowledge of the distillation process used aboard the Veteran's ship during his service off the coast of Vietnam in 1964, and objective findings from official sources as they pertain to the Veteran's particular ship weigh against her statements. For these reasons, the Board finds that the evidence has not established actual exposure to Silvex in service. See Bardwell, 24 Vet. App. at 40. For these reasons, the Board finds that Veteran has not established that he has had direct exposure to any herbicide agents or other chemicals in service. The Board finds that the Veteran did not have chronic symptoms of diabetes mellitus in service, or continuous symptoms of diabetes mellitus after his separation from service. Instead, VA and private treatment records show that the Veteran's diabetes mellitus was first diagnosed in 1994, approximately 29 years after the Veteran's separation from service. The Veteran has not identified any symptoms that can be related to diabetes mellitus in service. He testified in June 2009 that he was never treated for diabetes in service. Private treatment records show that the Veteran was hospitalized in July 1994 for approximately one week for hyperglycemia, and at that time he was diagnosed with new onset insulin diabetes mellitus. Treatment records related to the 1994 hospitalization are not of record; thus, the circumstances surrounding the July 1994 hypoglycemic reaction 29 years after service separation are not clear; however, the Veteran has testified that this hypoglycemic reaction occurred after he had a knee surgery, and that it was of a sudden onset. Such evidence reflects a history of onset 29 years after service separation and even suggests a post-service etiology for the onset. The Veteran's wife testified that there was evidence of ketosis at the time of his hospitalization in 1994. For these reasons, the Board finds that diabetes first had its onset in July 1994, that symptoms of diabetes mellitus were not chronic in service and were not continuous after service separation, and symptoms of diabetes mellitus did not manifest to a compensable degree within one year of separation from service. The Veteran's wife has provided testimony stating that she was a registered nurse. In view of the Board's finding that the Veteran was not exposed to Silvex or Agent Orange in service, the Board finds that the Veteran's wife's testimony, insomuch as it attempts to establish a nexus between such exposure and currently diagnosed diabetes mellitus, is not probative. Medical opinions premised upon an unsubstantiated account of a claimant are of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Board has discussed above, the weight of the evidence demonstrates no in-service exposure to an herbicide agent. Indeed, with no in-service exposure, disease or even chronic symptoms in service, there is nothing in service to which diabetes mellitus could be related to by medical opinion evidence. Additionally, the evidence shows no continuous symptoms of diabetes after service separation, including within one year after service separation. For these reasons, a preponderance of the evidence is against the claim for service connection for diabetes mellitus on both a direct and presumptive basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, to include as due to herbicide exposure including Agent Orange, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs