Citation Nr: 1301005 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-27 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, with peripheral neuropathy, to include as due to inservice exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to July 1967 and from August 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam, and there is no competent evidence establishing that he was exposed to any herbicides, to include Agent Orange, during service. 2. The competent evidence of record does not show that the Veteran's diabetes mellitus, type II, with peripheral neuropathy, was incurred in or caused by his military service. CONCLUSION OF LAW Diabetes mellitus, type II, with peripheral neuropathy, was not incurred in or caused by active military service, and is not presumed to have been incurred in service, to include inservice exposure to herbicide agents. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claim, a June 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Veteran's service treatment records, service personnel records, VA treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the RO contacted the National Personnel Records Center (NPRC) in an attempt to verify the Veteran's reported in-country service in Vietnam. Although VA did not provide the Veteran with a medical examination with regard to his claim, none was required in this case because, as discussed below, the evidence does not confirm inservice exposure to herbicide agents and there is no evidence suggesting a link between the Veteran's diabetes mellitus with peripheral neuropathy and his active duty service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, a VA examination was not warranted in this case. There is no indication in the record that any other additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that service connection is warranted for diabetes mellitus, type II, with peripheral neuropathy. The Veteran alleges that his diabetes mellitus is the result of inservice exposure to Agent Orange. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran believes that his current diabetes mellitus, type II, with peripheral neuropathy, is the result of inservice exposure to herbicide agents. During an August 2012 hearing before the Board, the Veteran testified that he was exposed to herbicide agents in Vietnam. Specifically, he reported that his ship anchored in DaNang Harbor, and that he left the ship and went onshore to pick up the body of a deceased comrade, Lieutenant V., on May 29, 1969. He noted that he volunteered to go to collect the body because he knew the deceased man. He explained that he was onshore for approximately three to five hours. Although the Veteran's representative indicated that the Veteran's ship was docked in DaNang Harbor, the Veteran clarified during the hearing that his ship was anchored, not docked, in DaNang Harbor and that he moored in to the harbor. The Veteran also stated that he felt that he was exposed to Agent Orange while onboard the USS RADFORD, because the temperature onboard the ship was hot and he felt that he could sometimes feel a mist of Agent Orange, but that he did not know what the mist was. He noted that his eyes were irritated and his breathing was poor after working on watch. In his substantive appeal, the Veteran stated that he was exposed to herbicide agents when he went onshore in Vietnam for liberty. In an August 2011 statement, he reported that he went into DaNang, Vietnam during service. VA law and regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See also 38 C.F.R. § 3.309(e). Furthermore, VA has determined that a veteran who served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the inland waterways of Vietnam and excludes veterans who served aboard ships operating in Vietnam's offshore waters unless the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). Service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). "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. Additionally, VA has compiled a list of Navy and Coast Guard ships which were associated with service in Vietnam and exposure to herbicide agents. The Veteran's service treatment records are negative for any indication that he had in-country service in Vietnam, or that he was otherwise exposed to herbicides. The service treatment records are also negative for any complaints of or treatment for diabetes mellitus, type II, with peripheral neuropathy. The Veteran's service personnel records reflect that he served onboard the USS CLAUD JONES from March 1966 to May 1966, onboard the USS BAILEY from May 1966 to July 1967, onboard the USS RADFORD from August 1968 to November 1969, and onboard the USS LYNDE MCCORMICK from November 1969 to May 1970. The Veteran's Reports of Separation, Form DD 214, from both of his periods of active duty service, show that he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Vietnam Service Medal with One Bronze Star, and the Armed Forces Expeditionary Medal (Korea). His military occupational specialties were fireman and boilerhouse foreman. A June 2007 response from the NPRC reflects that the Veteran served onboard the USS RADFORD, which was in the official waters of the Republic of Vietnam from April 3, 1969 to April 18, 1969, from May 21, 1969 to June 11, 1969, and from June 24, 1969 to June 26, 1969. The NPRC stated that the Veteran's service record provided no conclusive proof that the Veteran served in-country in Vietnam. In support of his claim, the Veteran submitted photocopies of a portion of a cruise book for the USS RADFORD. The cruise book reveals that, on May 29, the USS RADFORD anchored in DaNang, Republic of South Vietnam, and that on that same day, Lieutenant V. was "committed to the deep off the coast of the Republic of South Vietnam." The Veteran also submitted photographs and a memorial passage regarding Lieutenant V., which states that Lieutenant V. served onboard the USS RADFORD from August 1966 to March 1968, and then served with the Naval Advisory Group in the First Coastal Zone in Vietnam until his death on May 20, 1969 during combat operations. The memorial indicates that Lieutenant V. was "committed to the deep off the coast of the Republic of South Vietnam on 29 May 1969 in a ceremony held onboard RADFORD." After a thorough review of the Veteran's claims file, the Board concludes that the evidence of record is insufficient to establish a presumption of herbicide exposure because there is no evidence substantiating the Veteran's contentions that he had in-country service in Vietnam. Although the Veteran's personnel records indicate that he received the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Vietnam Service Medal with One Bronze Star, and the Armed Forces Expeditionary Medal (Korea), there is no indication that he ever served in-country in Vietnam. See Haas, 525 F.3d 1168 (upholding VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). See also 38 C.F.R. § 3.313 (2012). As noted above, VA compiled a list of Navy and Coast Guard ships which were associated with service in Vietnam and exposure to herbicide agents. However, none of the ships upon which the Veteran served are included in that list. Despite the RO's attempts to confirm the Veteran's contentions that he had in-country service in Vietnam, the NPRC has been unable to provide any evidence showing that the Veteran entered the Republic of Vietnam during his active duty service. While the Veteran's representative indicated that the Veteran's ship docked in DaNang Harbor, the Veteran clarified during his August 2012 hearing before the Board that his ship was not docked in DaNang Harbor, but was anchored off the coast of DaNang. Moreover, the cruise book for the USS RADFORD confirms that the ship anchored off the coast of DaNang. Thus, the Veteran's statements and the objective evidence of record show that the Veteran served in the coastal waters of Vietnam, and not in the inland waters of Vietnam. The evidence does not corroborate his statements that he set foot in Vietnam. Additionally, while the Veteran submitted evidence showing that Lieutenant V. perished in combat and was "committed to the deep off the coast of the Republic of South Vietnam on 29 May 1969 in a ceremony held onboard RADFORD[,]" the evidence submitted by the Veteran does not substantiate his contentions that he went onshore in Vietnam to retrieve Lieutenant V.'s body. As there is no evidence corroborating the Veteran's reports that he went onshore in Vietnam, the Board does not find these statements to be persuasive. Thus, the probative evidence of record does not establish that the Veteran had in-country service in Vietnam during his active duty service. For the foregoing reasons, the Veteran is not presumed to have been exposed to herbicides during active duty service. 38 C.F.R. §§ 3.307(a)(6), 3.313. Accordingly, service connection for diabetes mellitus, type II, with peripheral neuropathy, is not warranted on a presumptive basis. 38 C.F.R. § 3.309(e). Although the Veteran has not asserted another theory of entitlement for diabetes mellitus, type II, service connection may also be awarded if the competent evidence demonstrates that the Veteran's diabetes mellitus, type II, with peripheral neuropathy, is directly related to his active duty service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). Unfortunately, none of the remaining evidence of record discusses the etiology of the Veteran's diabetes mellitus, type II, and there is no competent medical evidence of record to suggest that diabetes mellitus, type II, with peripheral neuropathy, is directly related to service. In this regard, there is nothing in the Veteran's service treatment records that would indicate that diabetes mellitus, type II, with peripheral neuropathy, began during service or during the presumptive one-year period following service, as diabetes mellitus, type II, and there is no evidence linking the Veteran's current diabetes mellitus, type II, directly to service. The Board must rely on competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the present case, the first medical evidence of record of diabetes mellitus was in February 2007, over 36 years after the Veteran's discharge from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). There is no evidence of record, lay or medical, linking the Veteran's diabetes mellitus, type II, with peripheral neuropathy, directly to service. Thus, the evidence does not show that the Veteran's diabetes mellitus, type II, with peripheral neuropathy, is directly related to service. Ultimately, there is nothing in the evidence of record to support the assertions advanced by the Veteran that he was exposed to herbicides during service. Thus, service connection cannot be awarded on a presumptive basis. Moreover, as the competent evidence does not show that the Veteran's diabetes mellitus, type II, with peripheral neuropathy, is due to military service, the preponderance of the evidence is against direct service connection. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for diabetes mellitus, type II, with peripheral neuropathy, is not warranted. ORDER Service connection for diabetes mellitus, type II, with peripheral neuropathy, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs