Citation Nr: 1305162 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 03-09 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for diabetes mellitus to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Mark Lippman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to February 1969. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2004, the Veteran testified before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. In an August 2004 decision, the Board denied the Veteran's claim. He appealed the Board's August 2004 decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board's August 2004 decision and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in March 2005. In March 2005, the Board notified the Veteran that the VLJ who had conducted his February 2004 hearing was no longer employed at the Board. The Veteran was afforded another hearing in February 2006. A transcript of that hearing is of record. Review of Virtual VA reveals no pertinent records. The Board also notes that the Veteran perfected an appeal to the issue of whether new and material evidence had been submitted to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In a May 2012 rating decision, however, service connection for PTSD was granted. As the benefits sought on appeal have been granted, this issue is no longer before the Board. FINDINGS OF FACT 1. Exposure to herbicides in service has not been established. The Veteran is not shown to have set foot in Vietnam. 2. Diabetes mellitus type II was initially demonstrated many years after service discharge and is not otherwise attributable to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II to include as due to herbicide exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in April 2001 and June 2001, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates in December 2010. The appeal was most recently readjudicated in the May 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, Social Security Administration records, and identified private medical records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS The Veteran appeals the denial of service connection for diabetes mellitus type II. He contends that his disability is due to Agent Orange exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Service connection for some chronic diseases, including diabetes mellitus, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To the extent that the Veteran contends that his diabetes mellitus is a result of his exposure to Agent Orange in Vietnam, the Board finds against this claim. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a) (6) (iii). In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307(a) (6) (iv). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, such as diabetes mellitus type II, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if 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. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of these conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 - 57589 (1996). 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) (upholding a regulatory interpretation of "service in the Republic of Vietnam" to include "only service on land, or on an inland waterway"). Service aboard such a ship that anchored in an open deep-water harbor, such as Da Nang or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10k. While the evidence of record shows that the Veteran has diabetes mellitus which is one of the specific diseases listed in 38 C.F.R. § 3.309(e), the Board finds that the Veteran did not serve in Vietnam under the above interpretation of the statute and regulation for the purpose of the presumption. The Veteran's service personnel records show that for the period of September 9-16, 1965 he served on the USS Boxer on operations in Vietnam. Although the records show the USS Boxer (LPH-4)(landing platform helicopter) docked to pier at Cam Ranh Bay on September 9, 1965, the Veteran does not assert that he physically set foot in the Republic of Vietnam. Rather, he contends he was exposed to herbicides because he was in territorial waters and that while aboard ship he came into contact with those who had actually been in country. For those veterans who served aboard ships that docked and then went ashore, or served aboard ships that did not dock but the veterans went ashore, their service involved "visitation" in Vietnam. In cases involving docking, the evidence must show that the veteran was aboard at the time of the docking, and the veteran must provide a statement indicating that he personally went ashore. Here, the Veteran does not assert that he set foot on the landmass of Vietnam. Thus, even if the ship was docked in the manner required, the fact that he did not go ashore precludes benefits based on presumptive exposure to herbicides. Consequently, the weight of the evidence is against a finding that the Veteran set foot in Vietnam or was on an inland waterway. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e). His reported exposures are not considered sufficient exposure such as to warrant the presumption. The Board also finds that service connection for diabetes mellitus is not otherwise warranted. To that end, service treatment records are negative for complaints, symptoms, findings, or diagnoses for diabetes mellitus. Diabetes mellitus is also not shown within a year of separation from service. Rather, post-service medical evidence reflects that the Veteran was diagnosed with diabetes mellitus around 1996, more than two decades after separation from service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As noted, the Veteran argues his diabetes mellitus is related to service to include exposure to herbicides. He contends he was exposed to herbicides in service because he came into contact with people that had been in Vietnam and that shipping channels were sprayed with Agent Orange. To the extent that the Veteran's lay statements are being offered to establish herbicide exposure, such evidence must fail. Neither his pleadings nor his testimony establishes actual exposure. His statements are general in nature and amount to little more of an assertion that since he was there, he must have been exposed. Such statements do not factually establish exposure and do not give rise to a presumption that his diabetes is due to service. Merely reporting that shipping channels were sprayed with a substance he believed to be Agent Orange and that he was in contact with people that had been in Vietnam does not establish exposure. The Veteran's testimony is not competent in this regard, and there is no other evidence in support of the theory that he was exposed to herbicides in service. The Board acknowledges that the December 2007 VA examiner opined that the Veteran's diabetes type II was as likely as not secondary to exposure to Agent Orange in Vietnam. The examiner, however, does not provide any rationale for his opinion and, as noted, exposure to herbicides in service has not been confirmed. As there is no competent evidence that the Veteran was actually exposed to herbicides in service, the VA opinion is insufficient to establish a nexus between the Veteran's service and his diabetes mellitus. On review, the more probative evidence is against a finding that the Veteran's diabetes mellitus is related to active military service or events therein. In making this determination, the Board acknowledges the Veteran's contentions, but notes that as a lay person, he is not competent to render an etiology opinion on a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Under these circumstances, the Board finds that the claim for service connection for diabetes mellitus must be denied. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent and probative evidence does not support a finding of service connection for diabetes mellitus type II that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for diabetes mellitus type II also claimed as due to herbicide exposure is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs