Citation Nr: 1301748 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-21 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss disability. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active naval service from March 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, dated in May 2009 and June 2009. In March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. The issue of service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides (Agent Orange), is decided herein, whereas the issues of increased ratings for hearing loss disability and PTSD 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. FINDINGS OF FACT 1. The evidence does not confirm that the Veteran set foot on land in the Republic of Vietnam, that he served on the inland waterways of the Republic of Vietnam, or that he was exposed to an herbicide agent (to include Agent Orange) during service. 2. Diabetes mellitus was not present until many years after the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832 ) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided notice in March 2009 regarding the evidence needed to substantiate his claim, as well as his and VA's respective responsibilities for obtaining such evidence and notice regarding effective dates and disability ratings. His claim was thereafter initially adjudicated in June 2009. The record also reflects that VA has obtained the Veteran's active duty service treatment records (STRs) and service personnel records (SPRs) as well as all VA and private treatment records identified by the Veteran. Additionally, the RO has contacted the U.S. Army Joint Services Records Research Center (JSRRC) in an attempt to obtain evidence in support of the Veteran's assertion that he went ashore in Vietnam while his ship was stationed in the coastal waters of Vietnam from October 23, 1969, to November 20, 1969, and from December 9, 1969, to January 7, 1970. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. While the Veteran has not been afforded a VA examination with an opinion regarding his claim, the Board finds that one is not necessary. The Veteran's contention is that his diabetes mellitus type II should be afforded presumptive service connection on the basis of exposure to herbicides during service. However, as will be explained below, a finding of diabetes mellitus type II is already of record. Furthermore, the Veteran's service, as will be explained, does not constitute service in the Republic of Vietnam, as it is defined for VA purposes. 38 C.F.R. § 3.307(a)(6)(iii). He has presented no other theory of entitlement or basis on which to grant his claim. Therefore, the Board finds that a remand to afford the Veteran a VA examination is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). In addition, for Veterans who have served 90 days or more of active service during a war period, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred or aggravated in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A Veteran who "served in the Republic of Vietnam" between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military service, Type 2 diabetes will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran has been diagnosed as having diabetes mellitus, type II, as noted in a November 2008 VA report of examination. There is no earlier documented evidence of the disability, and the Veteran has not alleged onset until many years following service. He claims entitlement to service connection on the basis of presumptive exposure to herbicides only. He contends that he went onshore during multiple undocumented diving missions off the coast of Vietnam while his ship was performing Naval Gunfire Support (NGFS). He explained that he was a diver prior to service and this was known to the captain, so he was frequently asked to dive and retrieve things in the water or check the bottom of the ship for limpet mines though this was not his assigned duty. He also claims that while the ship was anchored in the river off of Da Nang, he was asked informally to go on another ship further up river. He went aboard that smaller ship. From that ship, he went onto land following a dive mission. He explains that he was scared each time he went on land. For the following reasons, the Board finds that the Veteran did not serve in Vietnam under the proper interpretation of the statute and regulation. The Veteran served in the Navy aboard the U.S.S. Theodore E. Chandler, DD717. In his written statements and hearing testimony, the Veteran maintains that he did go on land in Vietnam as the ship's swimmer and diver. He has asserted that his ship anchored off the shore of Da Nang. He submitted a page from the ship's cruise book showing him in water in diving gear. In the picture, his head is above water, his dive mask is on his forehead above his eyes and he appears to be looking at the ship. He appears in close proximity of the ship as rigging appears visible in the foreground picture. It does not appear to be dark out. The caption reads, FTG3 (Fire Control Technician (Gunfire Control) Striker Third Class) [Veteran]. He also submitted a copy of the ship's cruise log showing that it anchored in Da Nang Harbor on December 15, 1969, and commenced firing N.G.F.S. The RO contacted the JSRRC in May 2009 to attempt to Verify the Veteran's service on land in Vietnam during the period from December 15, 1969, through February 15, 1970, or possibly through March 15, 1970, based on his service aboard the USS Chandler. In June 2009, the agency responded noting in pertinent part that from October 23, to November 20, 1969, and from December 9, 1969, to January 7, 1970, the Chandler conducted Naval Gunfire Support (NGFS) operations in the coastal waters of the Republic of Vietnam (RVN), rescue destroyer duties on the Search and Rescue (SAR) station in the Gulf of Tonkin and carrier escort duties for aircraft carriers operating on Yankee Station in the Gulf of Tonkin. JSRRC reviewed the deck logs for the period from December 1, 1969, to January 7, 1970, as this was the period in which the ship was determined to be conducting NGFS operations in the RVN. These reveal that the ship conducted NGFS operations in Da Nang Harbor from December 10, 1969, to January 7, 1970. During this time, the ship would anchor in Da Nang Harbor during the day and get underway for her NGFS station, usually around Port Carol in Da Nang Harbor and conduct NGFS operations during the night. The deck logs do not reveal any operations in the inland waters of the RVN or that any personnel departed the ship while in Da Nang Harbor. JSRRC did point out that according to the National Archives and Records Administration and the Naval History and Heritage Command, command histories, deck logs and muster rolls/personnel diaries are the only administrative records produced by commissioned U.S. Navy ships during the Vietnam war that are permanently retained. These records do not normally annotate individuals arriving or going ashore on a routine basis. The deck logs may indicate aircraft or boats arriving/departing but do not list passengers by name, unless that individual is a very important person (VIP) or high ranking officer. Also, deck logs do not normally list destinations of these aircraft and vessels. Logbooks maintained aboard riverboats or launches were not considered permanent records. JSRRC concluded by suggesting that information regarding the Veteran's duties and assignments requiring him to go ashore may be in his personnel file. A review of the Veteran's SPRs do not document that he went ashore in Vietnam while stationed aboard the Chandler, or that he went on a riverboat to assist in a mission up a river more inland. SPRs do reveal that the Veteran's began service aboard the Chandler in August 1969 following completion of fire training 'A' school at Naval Training Center Great Lakes. He was advanced to the rate of FTGSN in October 199, and to FTG3 in February 1970. Based on his service aboard the Chandler from September 26, 1969, to April 1, 1970, he was entitled to wear the Vietnam Service Medal with 1 bronze star; he received 4 months credit toward the eligibility of the Republic of Vietnam Campaign Medal with device and he was entitled to hostile fire pay from October 1969 to January 1970. His DD214 reflects that he we received an honorable discharge and the following medals: National Defense Service Medal, Vietnam Service Medal and Vietnam Campaign Medal. The record contains a copy of a May 2009 JSRRC Memorandum for the Record on the topic of Navy and Coast Guard ships during the Vietnam Era. It indicates that, to date, the JSRRC had found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to Vietnam or that ships operating off the coast of Vietnam used, stored, tested or transported tactical herbicides. Additionally, 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. Therefore, it could provide no evidence in support of a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. The Veteran testified before the undersigned that he served aboard the U.S.S. Theodore E. Chandler and that the ship went to Vietnam several times. The ship never docked but instead dropped anchor in the river at Da Nang or harbor. He never knew the name of the river but described it as inland, but not far inland. He stated that on a couple of occasions the ship needed someone to do something underwater. Since he was already the ship's swimmer and the captain knew him quite well, he volunteered to do some diving. He referred to it as a very unofficial thing, but if they needed someone to dive, they asked him. When he dove, he would check the ship for limpet mines before they left. On one occasion, a river boat came up and asked if he could go with them since another boat had sunk not far from there and they needed someone to get the weapons off the sunken boat. So, he went with them, then went on the base and got a beer. They did not put this in the log. He stated that when he was on land in Vietnam, he was scared. He did not walk any place that he did not see someone else step on first. He does not remember carrying a weapon but he did carry his dive gear. He emphasized that the dive duties were on a volunteer basis and that there was no record and nobody ordered him to do it. The Board notes parenthetically that the Veteran is service-connected for PTSD, and that this disability was initially characterized as anxiety with cephalgia. The diagnosis was changed effective in October 2008 in response to the claim of service connection for PTSD. In the claim, the Veteran reported one of his three stressors was going on land in Vietnam for a short assignment to inspect underwater weapons cache at a nearby village, where a landmine detonated and hit him in the back of the head. At a VA examination for PTSD in November 2008, he describes a dive mission which involved him walking across a booby-trapped peninsula, presumably in Vietnam. On review, the Board finds that the Veteran cannot be presumed to have been exposed to Agent Orange based solely on his service aboard the Chandler. In this regard, the Board notes the aforementioned memorandum of the JSRRC. Moreover, the U.S.S. Theodore E. Chandler has been shown to be a ship that did not enter the inland waters of Vietnam during the Veteran's tour of duty. It was noted to have anchored in Da Nang Harbor in late 1969 and early 1970, as verified by the JSRRC. The Board notes that, as to what constitutes inland waters, VA's Compensation and Pension Service indicated in a December 2008 Bulletin: "Please be advised that Da Nang Harbor and all other harbors along the Vietnam coastline are considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam. The Bulletin further states that, "inland brown water service in Vietnam refers to operations on rivers, estuaries, and delta areas inside the country itself." An evolving VA Compensation and Pension Bulletin, last updated November 8, 2012, lists information regarding vessels identified as traveling in the "brown waters" of Vietnam. The U.S.S. Theodore E. Chandler, is not among those listed. Furthermore, the Board notes that, as published in the Federal Register December 26, 2012, VA issued a notice that presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans is not supported by the currently available evidence to include a May 20, 2011, Institute of Medicine (IOM) of the National Academy of Sciences report titled, ''Blue Water Navy Vietnam Veterans and Agent Orange Exposure. The IOM reviewed a wide range of data sources including peer-reviewed literature, exposure and transport modeling, interviews with veterans, ship deck logs, and other government documents, and concluded that there is insufficient evidence to determine whether Blue Water Navy Veterans were exposed to Agent Orange-associated herbicides during the Vietnam War. See 77 Federal Register 76170-76171, December 26, 2012). This notice does not in any way preclude VA from granting service connection on a case-by-case basis for diseases and conditions associated with Agent Orange exposure. The Veteran has maintained that he set foot in Vietnam during his undocumented dive missions, yet there is no competent evidence of record suggesting that he did so. Rather, there is compelling, uncontroverted evidence of record, specifically the report from the JSRRC, that the Veteran did not go ashore during his service aboard the Chandler. Moreover, his SPRs do not indicate that he had any duties or assignments that would have required him to go ashore. While the Board notes the photograph of the Veteran in the water in diving apparatus, it stresses that this does not persuade the Board that he went ashore. Simply because the Veteran was in the water with diving apparatus during his tour of duty, in close proximity to the ship which was anchored in the harbor, does not allow the Board to conclude that it is at least as likely as not that he went ashore, particularly considering the contrary information from the JSRRC and his SPRs. Consequently, the weight of the evidence is against a finding that the Veteran set foot in Vietnam or was on an inland waterway. The Veteran's testimony, thus, is found to be not credible. The Board emphasizes that the appellant is not entitled to a presumption of exposure and he has not established a credible factual foundation for establishing exposure to Agent Orange at any time. Finally, while the Board is required to review all issues reasonably raised from a liberal reading of the record, when there is, "no evidentiary support for a particular theory of recovery," the Board need not consider such theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In this case, there is no evidentiary support for any theory of recovery other than service connection on the basis of herbicide exposure. In any event, the lay and medical evidence reflects that diabetes did not manifest in service, the Veteran's endocrine system was normal upon examination at separation in November 1970, and diabetes was not diagnosed or noted in VA examinations in 1971 or 1976, and in fact was not noted until the aforementioned examination report in 2008, well outside the one-year presumptive period. There is also no claim or evidence that diabetes is related to service other than the Veteran's argument that it was due to Agent Orange exposure as discussed above. The Veteran testified during his hearing that he was onshore in Vietnam for brief periods, but this is inconsistent with the documented record and is deemed not credible under the circumstances. For the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides (Agent Orange), is denied. REMAND The Board is of the opinion that additional development is required before the Veteran's claims for increased ratings are decided. The Veteran's most recent medical examination to determine the current degree of severity of his hearing loss was performed in April 2009. The Veteran's most recent medical examination to determine the current degree of severity of his PTSD was performed in November 2008. In his March 2012 testimony before the undersigned, the Veteran asserted that both of his conditions have worsened since his last examinations. In light of this evidence suggesting that the Veteran's disabilities have increased in severity since the last examinations, the Board has determined that the Veteran should be afforded another VA examination to determine the current degree of severity of his hearing loss disability, as well as another examination to determine the severity of his PTSD. Additionally, during his hearing before the undersigned, the Veteran indicated he had additional treatment for PTSD, the records of which had not been associated with the claims file. The Board held the record open for 60 days so that he could submit these records; however, no records were added to the file. On remand, appropriate attempts should be made to assist the Veteran in obtaining these records. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Contact the Veteran to determine whether there are any outstanding medical records pertaining to treatment or examination of the Veteran's service-connected PTSD and hearing loss disability during the period of this claim (such as those specifically referenced during his March 2012 BVA hearing, for which the record was held open). 2. Then, arrange for the Veteran to be afforded: (a) a VA examination in order to ascertain the current severity of his service-connected bilateral hearing loss disability. The claims file must be made available to and reviewed by the examiner, and the examiner should indicate in the report that the file was reviewed. (b) a VA examination in order to ascertain the current severity of his service-connected PTSD. The claims file must be made available to and reviewed by the examiner, and the examiner should indicate in the report that the file was reviewed All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiners provide all information required for rating purposes. 3. Undertake any additional development it determines to be warranted. 4. Then, readjudicate the issues on appeal, in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs