Citation Nr: 1301004 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-38 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for diabetes mellitus type II, to include as secondary to herbicide exposure during service. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1969. He is the recipient of a Combat Action Ribbon, earned as a crewmember of a ship engaged in operations in waters contiguous with the hostile coastline of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his September 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at his local office. In October 2011 he modified his request to a video-conference hearing. However, in November 2011, he withdrew his request for a hearing and asked that his appeal proceed to the Board. Therefore, the Board finds that his request for a hearing before a Veterans Law Judge has been withdrawn. 38 C.F.R. § 20.702(e) (2012). FINDINGS OF FACT 1. The Veteran did not suffer from diabetes in service or for many years thereafter. 2. There are no medical opinions of record linking the Veteran's current diabetes mellitus to service. 3. The evidence of record fails to corroborate the Veteran's report of in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for diabetes, to include as secondary to claimed in-service herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A, 5107(b) (West 2002 and Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and 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)(1). The notice requirements apply to all five elements of a service connection claim, including 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an October 2007 letter, sent prior to the initial unfavorable decision issued in March 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, including as secondary to in-service herbicide exposure, and establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Relevant to the duty to assist, the Veteran's service medical records and VA medical records have been obtained and considered. He has not identified any additional outstanding records that have not been requested or obtained. The Veteran reported that he receives Social Security Administration (SSA) disability benefits for nonservice-connected heart and lung conditions. He did not report that he was in receipt of such benefits due to his diabetes mellitus type II or service-connected disability. VA did attempt to obtain the SSA records, but were notified by SSA that the Veteran's records had been destroyed. Not all medical records or all SSA disability records must be sought, only those that are relevant to the Veteran's claim. To conclude that all medical records or all SSA disability records are relevant would render the word relevant superfluous in the statute governing VA's duty to assist. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. The Board finds that the outstanding SSA records are not relevant to the Veteran's claim of entitlement to service connection for diabetes mellitus type II and it is therefore unnecessary to obtain them. Moreover, efforts were made to corroborate the Veteran's assertion that he was exposed to Agent Orange during service. Personnel records were obtained, including the dates and locations of the Veteran's service aboard the U.S.S. Newport News. VA was informed that the Service Department was unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. The Board also confirmed that the U.S.S. Newport News is not included on VA's Compensation and Pension Service list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents. Personnel, Service Department, and VA records were reviewed in an attempt to ascertain whether the Veteran did indeed have in-service Agent Orange exposure, but no such corroborative evidence was discovered. The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his service connection claim. However, as his service and post-service treatment records fail to suggest that he developed diabetes mellitus during or soon after service, and the evidence of record fails to indicate that he was exposed to Agent Orange during service, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Claim The Veteran contends that his currently-diagnosed diabetes mellitus is related to service. Specifically, he contends that he developed diabetes mellitus type II as the result of exposure to herbicide agents when he served aboard the U.S.S. Newport News in the waters off the shore of the Republic of Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, service connection for certain diseases, including diabetes mellitus type II, may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide applies for a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran does not contend that he had diabetes mellitus or any associated problems while on active service, or that he served or physically set foot in Vietnam during service. Rather, the Veteran contends that his diabetes is due to herbicide exposure while serving aboard the U.S.S. Newport News in the waters off Vietnam. VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. However, the U.S.S. Newport News is not one of the vessels recognized as having conducted "brown water" operations in Vietnam. Personnel records and the Service Department confirm that the ship was in the official waters of the Republic of Vietnam from October 9-29, 1967; November 5-8, 1967; November 23 - December 23, 1967; January 8 - February 6, 1968; February 22, - March 18, 1968; March 30 - April 5, 1968; and April 9-18, 1968. On all of these dates, it served as a Naval gunfire support ship in support of operations. The catalog of the ports in which the ship docked does not include any ports in the Republic of Vietnam. Given the nature of its mission and the absence of any indication in the record that it conducted brown water operations, there is no reason to believe that it would have operated in the rivers, delta areas, or inland waterways of Vietnam. Therefore, there is no evidence that the Veteran was exposed to herbicides while serving on the U.S.S. Newport News. The Veteran's service off the coast of Vietnam does not constitute "service in the Republic of Vietnam." See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Service Department was unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. "Service in the Republic of Vietnam" requires visitation (i.e., setting foot) in Vietnam. 38 C.F.R. §§ 3.307(a), 3.313(a). The presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 are specifically limited to those individuals who were actually physically present in the boundaries of the Republic of Vietnam at some point during service. In this case, the Veteran does not claim nor do the records demonstrate that he physically visited or had duty in the Republic of Vietnam. Because the Veteran does not meet the criteria of having "service in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii), his service connection claim must fail on the basis of the presumptive regulations. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that the presumptive service connection procedure does not preclude a Veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In this regard, the Board notes that the Veteran's service treatment records, including his separation examination, were negative for any findings or diagnosis referable to diabetes mellitus. Likewise, there are no indications of any symptoms or manifestations of diabetes mellitus within the first year following his separation from service, nor does the Veteran so contend. The evidentiary record does not indicate the specific date of onset of the Veteran's diabetes mellitus type II, but a December 2006 VA medical record notes it as an active problem for which the Veteran was already receiving treatment. As the evidence does not show diabetes mellitus manifest to a compensable degree within one year of discharge from service or until some 25 years after service separation, there is no basis to grant service connection based on the one year presumption of service incurrence under the provisions of 38 C.F.R. §§ 3.307 or 3.309. Direct service connection may not be granted without evidence in-service incurrence or aggravation of a disease or injury. The Board has found that there is no evidence of in-service herbicide exposure and the Veteran has not contended that there was any other in-service cause of his diabetes mellitus. Therefore, the Veteran's claim cannot be granted based on direct service connection. 38 C.F.R. § 3.304 As there is no credible medical evidence of record suggesting a connection between any claimed in-service exposure to herbicides and the Veteran's diabetes mellitus type II, and no evidence of any manifestations or symptoms attributable to diabetes mellitus type II during service or until many years after his discharge from service, the Board finds no basis to grant service connection. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus type II. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, to include as secondary to claimed in-service herbicide exposure, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs