Citation Nr: 1306172 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-43 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 1961 to June 1965. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In his October 2010 appeal to the Board, the Veteran noted he has also had a heart disability, which he contended was also due to his time in service. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran served in the offshore waters of Vietnam and the weight of the evidence is against a finding that the Veteran ever set foot on land in Vietnam at any time during his military service. 2. The Veteran's diabetes mellitus was first manifested many years after service, and the preponderance of the evidence is against a finding that it is related to service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2008. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted a statement from a fellow serviceman. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4). However, merely filing a claim for benefits is not enough to necessitate a medical examination. VA's duty to provide a medical examination is not triggered unless the record contains competent evidence of a current disability or symptoms of a current disability, evidence establishing that an event, injury, or disease occurred in service or a disease manifested during an applicable presumptive period, and an indication that the disability or persistent or recurring symptoms of a disability may be associated with service or a service connected disability. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this instance, the evidence does show that the Veteran has been diagnosed with diabetes mellitus. However, there is no medical evidence suggesting that the disability manifested itself in-service, during a presumptive period, or that it was the result of or caused by the his service. The only evidence that the Veteran's diabetes is related to his military service is his own unsupported lay statements. As such, there is no duty to obtain an additional medical evaluation or opinion. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Service Connection The Veteran seeks service connection for diabetes mellitus, type II (DMII) on the basis that it resulted from exposure to herbicides during service. Veterans are entitled to compensation from the Department of Veterans Affairs if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110, 1131. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as DMII, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War 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). Diabetes mellitus is one of the diseases that is presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 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); 38 U.S.C.A. § 1116(f). 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). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam may not be considered "service in the Republic of Vietnam" for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). Simply stated, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. Id. Since issuance of that General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001). Subsequently, in May 2008, the Federal Circuit held that the interpretation by the Department of Veterans Affairs (VA) of the phrase "served in the Republic of Vietnam," which required the physical presence of a veteran within the land borders of Vietnam during service, was a permissible interpretation of 38 U.S.C.A. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii). The United States Supreme Court, declined to review the case, and the decision of the Federal Circuit in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) is now final. The Secretary of VA revisited the issue in 2012 and determined, after review of a May 2011 Institute of Medicine (IOM) of the National Academy of Sciences report entitled "Blue Water Navy Vietnam Veterans and Agent Orange Exposure," that the evidence does not support establishing a presumption of exposure to herbicides for Blue Water Navy veterans. See Notice, 77 Fed. Reg. 247, 76170-76171 (2012). The Veterans' Benefits Administration (VBA) Fast Letter 10-06 provides detailed information concerning "Blue Water" vessels of the Navy and herbicide exposure. See VBA Fast Letter 10-06 (September 9, 2010). Specifically, the letter explains that in order for the presumption of herbicide exposure to be extended to a Blue Water Navy veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. In claims based on docking, a lay statement that the Veteran personally went ashore must be provided. The existence of a current disability is not at issue in this case. Post-service VA medical treatment records show that the Veteran was diagnosed with DMII in 2007, approximately 40 years after his discharge from service. The Veteran contends that he developed DMII from Agent Orange exposure while serving aboard the USS Sacramento when the vessel went close enough to inland water to expose him to herbicide. The Veteran's service personnel records do not show that the Veteran was ever physically present in the Republic of Vietnam for active duty service. Rather, they show that he served in the U.S. Navy aboard the USS Sacramento. The Joint Services Records Research Center reviewed available records for the USS Sacramento and determined that the vessel provided underway logistic support for naval units in the South China Sea for four months after deploying in November 1964. None of the ports visited by the vessel were in the Republic of Vietnam. Furthermore, a document compiled by VA entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" contains a list of ships that operated primarily or temporarily on Vietnam's inland waterways, ships that docked to the shore or pier in Vietnam, and ships that operated on Vietnam's close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. The USS Sacramento is not among those listed as ships that operated primarily, temporarily, or exclusively on Vietnam's inland waterways or that docked to the shore. It also is not listed as one of the ships that operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore. The Board acknowledges the list is not complete, and that the presumption of herbicide exposure should not be denied solely because the Veteran's ship is not on the list. In support of his claim, the Veteran submitted a statement in October 2008 from a fellow serviceman. The serviceman stated that he served with the Veteran on the USS Sacramento during its deployment to the South China Sea. He stated that the vessel went close to shore to refuel mine sweeps on duty in harbors along South Vietnam. The Board is aware of the requirement to give due consideration to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The evidence does not show that the USS Sacramento ever operated in the inland waterways of or docked in Vietnam, and the Veteran has not contended that he went ashore in Vietnam. The fellow serviceman who submitted a statement in this case also did not claim the Veteran went ashore, contending only that the ship they were on went near the coast. Simply having gone near the coast is not sufficient to invoke the presumption of herbicide exposure. The ship must have operated temporarily in the inland waterways of Vietnam or it must have docked to a pier or shore and the Veteran must provide a lay statement that he went ashore. See VBA Fast Letter 10-06 (September 9, 2010). Further, service personnel records do not show that the Veteran ever set foot in Vietnam. Similarly, the Veteran's DD-214 indicates that the Veteran's military occupation specialty was as a maintenance engineer, and there is no indication that such a specialty would require the Veteran to go to shore. As such, the circumstances of the Veteran's service do not lead to the conclusion that he set foot ashore in Vietnam. The lay statement by the Veteran's fellow serviceman notes that he and the Veteran served on the same ship under the same conditions during approximately the same time frame and he was granted service connection for his disability based on herbicide exposure. However, each Board decision is rendered based on the specific facts of each case, and Board decisions do not carry binding, precedential weight vis-à-vis other Board decisions. As such, the holding in one Board case, while potentially instructive, does not mandate a certain result in another. As such, the Veteran does not meet the criteria for service in the Republic of Vietnam as contemplated by 38 C.F.R. § 3.307(a)(6)(iii) that would entitle him to a presumption of having been exposed to a herbicide agent during service. The Veteran has also not contended any specific instance of herbicide exposure and the evidence does not show that he was actually exposed to herbicides during his service. Therefore, the Veteran is not entitled to the presumption that his diabetes was incurred in service due to exposure to herbicide. 38 U.S.C.A. § 1116(a)(1). Nevertheless, even when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. Unfortunately, this too fails to show that service connection is warranted for the Veteran's diabetes mellitus. Post-service VA medical treatment records show that the Veteran was diagnosed with DMII in 2007, approximately 40 years after his discharge from service and the Veteran doesn't contend otherwise. Thus, the presumption of service connection for certain chronic diseases that become manifest to a degree of 10 percent or more within one year of separation does not attach. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Further, there is no suggestion in the Veteran's medical records that his DMII had its onset during, was caused by, or is in any way related to his active service. Service treatment records contain no diagnosis or treatment of DMII during service and post-service treatment records contain no diagnosis until 40 years after service. In addition, no medical professional has offered an opinion that the Veteran's diabetes had its onset during service or that his service caused his diabetes. Therefore, a preponderance of the evidence weights against granting service connection for DMII on a direct basis. In reaching the above conclusions, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). [Continued on Next Page] ORDER Entitlement to service connection for type II diabetes mellitus, to include as a result of exposure to herbicide, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs