Citation Nr: 1300153	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  10-30 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type II, to include as secondary to Agent Orange exposure.  

2.  Entitlement to service connection for cataracts.  

3.  Entitlement to service connection for impotence.  

4.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. R. Mullins, Associate Counsel 


INTRODUCTION

The Veteran had active service from July 1968 to July 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, denying the claim currently on appeal.  

The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Nashville, Tennessee in March 2012.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.  

The issues of entitlement to service connection for cataracts and impotence, as well as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's diabetes mellitus is presumed to have manifested as a result of exposure to Agent Orange during his military service in the Republic of Vietnam.  

CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for diabetes mellitus, type II, have been met.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 1154(b), 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).  

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year from the 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  

A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)).  Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  

Facts and Analysis

The Veteran contends that he is entitled to service connection for diabetes mellitus.  Specifically, he has alleged that he was exposed to Agent Orange while serving aboard the U.S.S. Oklahoma City in Da Nang Harbor off the shores of the Republic of Vietnam.  Having reviewed all of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence suggests that he was in fact exposed to Agent Orange during his active military service.  As such, service connection for diabetes mellitus is warranted.  

The Veteran's service personnel records demonstrate that he served aboard the U.S.S. Oklahoma City from October 1968 through June 1970.  The U.S. Army and Joint Services Records Research Center (JSRRC) confirmed that the U.S.S. Oklahoma City departed Japan in 1969 for an extended period of Special Operations in the combat zone off the coast of the Republic of Vietnam.  This ship arrived and departed Da Nang, Vietnam on January 11, 1969 and conducted Naval Gunfire Support intermittently through June 1969.  The ship then arrived and departed Vung Tau, Vietnam on July 13, 1969.  It was also noted that deck logs revealed the ship to have run aground in January 1969 when maneuvering to avoid fishing boats.  

The Veteran has also submitted a report from the Blue Water Navy Vietnam Veterans Association titled "The Da Nang Harbor Report."  According to this report, when ships from offshore entered Da Nang Harbor, they were surrounded by a floating mass of herbicides clinging to oil and other debris.  It was noted that crews serving in these waters were more likely than not exposed to toxins from dioxin molecules arising from the water.  It was also noted that dioxin from the northern sector of Da Nang air base, where Agent Orange was stored and loaded onto spray planes, ran off into drainage pathways that led to Da Nang Harbor.  The Veteran also submitted a study entitled "Risk Analysis of Shipboard Drinking Water Chemical Contaminates" undertaken in August 2000.  According to this study, there was a moderate risk of chemical contamination for the drinking water and distribution systems onboard ships, with the most likely source of chemical contamination coming from volatile organic compounds, petroleum hydrocarbons or other chemicals.  

Finally, the Veteran has submitted a number of lay statements in support of his claim and he provided testimony regarding this issue in March 2012.  The Veteran has essentially asserted that while serving aboard the U.S.S. Oklahoma, he spent a great deal of time in Da Nang Harbor.  During rain or monsoons, he could see water running off from the rivers on land into the harbor.  The Veteran also reported in an August 2011 statement in support of a claim for service connection for PTSD that he could not understand why his ship was cruising so close to the land.  The Veteran also submitted maps of Vietnam and Da Nang Harbor, as well as a photo purportedly taken of the Veteran while in this harbor.  

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), but does not include cancer of the tongue.  38 C.F.R. § 3.309(e).  

A veteran who, during active military, naval or air service, served in 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).  

"Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or 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 Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  (VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam).  In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict.  

In the present case, there is extensive evidence of the Veteran serving in the waters offshore of Vietnam - specifically, Da Nang Harbor and Vung Tau.  In fact, the evidence demonstrates that the Veteran's ship actually ran aground while he was serving on this vessel in January 1969.  In light of this evidence, along with the studies and credible lay statements submitted by the Veteran, the Board will presume that the Veteran was exposed to herbicides, such as Agent Orange, during his military service in the waters offshore of the Republic of Vietnam.  Furthermore, the record confirms that the Veteran has been diagnosed with diabetes mellitus, type II.  As this condition has been found to be associated with herbicide exposure, service connection for diabetes mellitus, type II, is warranted.  See 38 C.F.R. § 3.309(e).  

Having resolved all reasonable doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus, type II, due to exposure to Agent Orange, is warranted.  See 38 U.S.C. § 5107(b).  The claim is granted.  



ORDER

Service connection for diabetes mellitus, type II, is granted.  


REMAND

The claims of entitlement to service connection for cataracts and impotence, as well as the claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension, were denied in a January 2012 rating decision.  A timely notice of disagreement was received for these issues in January 2012.  However, the record, to include Virtual VA, does not reflect that a statement of the case has yet to be issued.  A remand for this action is necessary.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

The RO should issue the Veteran and his representative a statement of the case on the issues of entitlement to service connection for cataracts and impotence, as well as the claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension.  The Veteran should be given the opportunity to thereafter perfect an appeal on these issues by filing a timely substantive appeal.  The claim will thereafter be subject to appellate review only if the appeal has been properly perfected.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs