Citation Nr: 1309640 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 06-01 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, or in the alternative, as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1972 with additional service in the United States Naval Reserve. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board subsequently remanded the case for further development in December 2009, May 2011 and July 2012. As will be further discussed below, the Board's prior remand directives have been substantially completed, and the case has been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era. 2. The Veteran served aboard the USS NEWPORT NEWS in the deep waters offshore of the Republic of Vietnam and was awarded the Vietnam Service Medal, National Defense Service Medal, Vietnam Campaign Medal and Combat Action Ribbon, but there is no competent and credible evidence that he ever set foot in the Republic of Vietnam or on the inland waterways, so there is no presumption of exposure to herbicides, and his lay assertions to this effect are not considered reliable or probative in conjunction with establishing this exposure on a factual basis. 3. The Veteran's diabetes mellitus, type II, was not manifested during his active military service, is not shown to be causally or etiologically related to any instance of his service, is not shown to be caused or aggravated by his service-connected PTSD, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from service. CONCLUSION OF LAW Diabetes mellitus Type II was not incurred in or aggravated by active duty, nor may the Veteran's diabetes be presumed to have been incurred as a result of herbicide exposure, or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In conjunction with his claim for benefits, the RO sent a VCAA notice letter to the Veteran in June 2004 which notified him of the criteria necessary to substantiate a claim for direct service connection as well as claims claimed as due to exposure to herbicides. The Board notes that the Veteran was not notified of how VA determines disability ratings and effective dates at the time of the initial adjudication of his claims. However, such was a practical and factual impossibility since the United States Court of Appeals for Veterans Claims' (the Court's) decision in Dingess/Hartman was not promulgated until after the initial adjudication of the Veteran's claim in September 2004. A letter to the Veteran dated in December 2009 provided him with sufficient Dingess/Hartman notification, and the Veteran's claim was subsequently readjudicated in supplemental statements of the case (SSOC's) January 2011, March 2012, and January 2013. As such, there was not prejudice to the Veteran concerning the timing of these notice elements. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Further, because the Veteran's representative alluded to an Internet article showing a general link between PTSD and diabetes mellitus, type II, the Board expanded the Veteran's claim to include entitlement under the theory of secondary service connection in the July 2012 remand. Review of the claim file reflects that the Veteran has not been informed of the requirements necessary to substantiate a claim under this theory of entitlement. However, the Board finds no prejudice to the Veteran in this regard, as the evidence reflects that the Veteran had actual knowledge of such elements. First, the requirements were set forth in the January 2013 SSOC which readjudicated the Veteran's claim. Second, the Veteran has been represented by an accredited representative during his appeal, and it was the June 2012 statement from the Veteran's representative which led to the expansion of his claim to include secondary service connection. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). In the June 2012 statement, the Veteran's representative stated PTSD could cause or aggravate diabetes mellitus, type II, which mirrors the criteria for claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes private medical records, service treatment and personnel records, VA medical records, a VA examination report, and statements from the Veteran. In September 2004, the RO conducted a search which reflects that the Veteran is not in receipt of disability benefits from the Social Security Administration (SSA). As a result of the Board December 2009, May 2011 and July 2012 Board remands, the VA Appeals Management Center has conducted extensive development to verify the Veteran's assertion that he visited the Republic of Vietnam during his service. Specifically, the AMC has obtained from the National Archives the command history and deck logs from the USS NEWPORT NEWS pertinent to the Veteran's service on the ship while in the coastal waters of the Republic of Vietnam. These records have been associated with the claims file. A March 2012 memorandum reflects a formal finding on the lack of information to verify the Veteran's presence in the Republic of Vietnam and herbicide exposure. Also, the AMC requested additional information from the Veteran concerning a more precise time period when he visited the Republic of Vietnam and an Internet article cited by his representative; however, the Veteran did not respond to these requests and asserted that he had no more evidence to submit in support of his claim. In this respect, the Court has held that VA's duty to assist the Veteran in obtaining information is a duty on the part of the Veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Also, a VA clinical examination has been obtained in connection with the Veteran's claim. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA clinical examination obtained in this case is more than adequate, as it is predicated on a review of the claim file and clinical examination of the Veteran. As appropriate, clinical findings pertinent to the Veteran's claim were obtained and reported. The Board observes that the July 2012 remand instructions directed the VA examiner to review the electronic treatment records in the Veteran's Virtual VA file. Review of the October 2012 VA examination report reflects that the examiner was not able to access Virtual VA, as the facility did not have the technological capabilities to allow access. However, the Board has reviewed the Veteran's Virtual VA file, and observes that there are no VA treatment records contained therein that are no associated with the claims file. Accordingly, the examiner's inability to review the Virtual VA file in connection with the October 2012 VA examination is not prejudicial to the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met, as the October 2012 VA examination is adequate for the purpose of adjudicating the Veteran's claim. 38 C.F.R. § 3.159(c) (4). In light of the actions recounted above, the Board concludes that the prior remand directives have been substantially complied with. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As discussed above, the Veteran was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices, submitting evidence, and participating in a medical examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection - Direct, Secondary and Presumptive Service connection may be established under the theory of direct service connection for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Also, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 C.F.R. § 3.307(d)(6)(iii). 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. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). VA regulations require that a veteran have set foot within the land borders of Vietnam for presumptive service connection and that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA's amendment to its Adjudication Procedure Manual excluding veterans who had not set foot in Vietnam was not invalid nor impermissibly retroactively applied. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient 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). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Discussion The Veteran claims that his diabetes mellitus, type II, is the result of his service, to include exposure to herbicides, or in the alternative, is caused or aggravated by his service-connected PTSD. See e.g., the Veteran's statements dated in April 2004 and March 2005 as well as the June 2012 statement from the Veteran's representative. Essentially, the Veteran has asserted his claim for service connection under the theories of direct service connection, secondary service connection and presumptive service connection. Concerning element (1), evidence of a current diagnosed disorder, it is uncontroverted that the Veteran has been diagnosed with diabetes mellitus, type II. See e.g., private treatment records dated in February 2004 and the October 2012 VA examination report. Accordingly, element (1) has been demonstrated for all theories of entitlement. With respect to element (2) of presumptive service connection, evidence of in-service exposure to herbicides, as noted above, the RO and AMC have conducted extensive development to verify the Veteran's asserted in-service herbicide exposure. First, the Veteran contended that his service aboard the USS NEWPORT NEWS in the coastal waters of the Republic of Vietnam should be sufficient for exposure to herbicides to be presumed. See the Veteran's March 2005 and December 2005 statements. However, as noted above, the Court held in Haas that a veteran who never went ashore from the ship on which he served in the Vietnam coastal waters was not entitled to presumptive service connection, and this was upheld by the Federal Circuit. As such, the Veteran's mere presence on the USS NEWPORT NEWS while the ship was in the coastal waters of the Republic of Vietnam is not sufficient evidence to concede in-service exposure to herbicides. Thereafter, the Veteran asserted that he visited the Republic of Vietnam during his service when he disembarked the USS NEWPORT NEWS to take barges to port and to accompany the ship's Captain to harbor. See the Veteran's March 2005 and December 2005 statements. As noted above, the RO and AMC have conducted extensive development to verify the Veteran's presence in the Republic of Vietnam during his service. Specifically, the RO sought such confirmation in a June 2004 Personnel Information Exchange System (PIES) request to which the National Personnel Records Center (NPRC) responded in August 2004 that the USS NEWPORT NEWS was in the official waters of the Republic of Vietnam from May 9 to June 16; June 26 to August 4; August 16 to September 11; September 24 to October 2; and October 21 to November 28, yet, there was not enough information in the Veteran's personnel records to confirm his presence in the country. Thereafter, and in response to the Board December 2009 and May 2011 remand directives, the command history and deck logs for the USS NEWPORT NEWS from 1972 were obtained through a Defense Personnel Records Information Retrieval System (DPRIS)/CURR request and from the National Archives, respectively. As noted by the AMC, these records do not confirm the Veteran's assertion that he, or the ship's Captain, visited the Republic of Vietnam during his service. See the March 2012 memorandum reflecting a formal finding on the lack of information to verify the Veteran's presence in the Republic of Vietnam and herbicide exposure. In light of above, the evidence of record does not confirm that the Veteran visited the Republic of Vietnam during his service. The Board notes that the Veteran is competent to report matters of which he has first-hand knowledge. However, credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Layno, Rucker, and Cartwright, all supra. In the present case, while the Veteran is certainly competent to assert that he visited the Republic of Vietnam during his service, the Board finds that his assertions are not credible in light of the probative weight of the evidence contrary to his assertion. The actions undertaken by the RO and AMC attempting to verify the Veteran's presence in the Republic of Vietnam have yielded carefully researched information which consistently reached the same conclusion - that the Veteran did not set foot in the Republic of Vietnam. The Board finds this evidence to be more probative and reliable than lay statements provided by the Veteran (even if found competent) more than 30 years after his discharge from service and made in the context of seeking compensation. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Veteran's service records confirm that the Veteran served aboard the USS NEWPORT NEWS during the Vietnam era. Research on file also reveals that the USS NEWPORT NEWS was in the official waters of the Republic of Vietnam from May 9 to June 16; June 26 to August 4; August 16 to September 11; September 24 to October 2; and October 21 to November 28, and fails to indicate that the ship was in port in the Republic of Vietnam or that the Veteran or Captain disembarked to go ashore Proof of a naval vessel mooring in the Republic of Vietnam while a veteran was serving on board weighs favorably in establishing service within the land borders of the Republic of Vietnam. In this regard, VA's Compensation & Pension service continually updates a non-exhaustive list of U.S. Navy ships that, at some point, operated in the inland waterways of Vietnam or were moored at some location in the Republic of Vietnam. The USS NEWPORT NEWS is also not listed as a ship with presumed "brown water" service as shown by VA's January 2010 and June 2010 Compensation and Pension Service's Bulletins. The Board notes that in November 2012, an expanded and comprehensive report entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" was issued by VBA, again failing to include mention of the USS NEWPORT NEWS. Unfortunately, none of the Veteran's awards of decorations, which include a Vietnam Service Medal, National Defense Service Medal, Vietnam Campaign Medal and Combat Action Ribbon establish service in Vietnam. The Federal Circuit held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal. Id. See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era veteran whose only contact with Vietnam was participating in high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters offshore of Vietnam is not qualifying service in Vietnam). The law is clear that the individual must have served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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) (2012). The totality of the evidence weighs against such service. The Board does not find the evidence sufficient to show that the Veteran had active service in Vietnam. Accordingly, there is no basis to grant service connection based on presumption of exposure to herbicides. Further, a review of the evidence reveals that diabetes mellitus, type II, was not diagnosed during the Veteran's service or during the first post-service year following those periods of service, nor does the Veteran so maintain. Accordingly, service connection for diabetes on a presumptive basis as a chronic disease under 38 C.F.R. §§ 3.307(c) 3.309(a), is not warranted. See also Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Notwithstanding the above, the Veteran is not precluded from seeking service connection on a direct and/or secondary basis. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service or caused or aggravated by another service-connected disability. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. Concerning element (2) of direct service connection, evidence of an in-service injury or disease, the Board notes that the Veteran's service treatment records are devoid of any instance of complaints of or treatment for diabetes mellitus, type II, or related symptomatology. Further, neither the Veteran nor his representative has asserted that the Veteran experienced symptoms of diabetes mellitus, type II, during his active duty. Accordingly, element (2) of direct service connection is not demonstrated by the evidence of record, and thus, the claim cannot succeed under this theory of entitlement. In passing, the Board observes that, even if element (2) of direct service connection was met, which it is not, there is no evidence that the Veteran's diabetes mellitus, type II, is causally related to his service. In the present case, because there is evidence of neither in-service symptomatology attributable to diabetes mellitus, type II, nor an in-service disease or injury which may be causative of the disease, a VA examination to obtain a nexus opinion was not provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (holding that a VA examination is not required when there is no competent evidence of current disability, and/or evidence "indicating" a nexus to service.) With respect to element (2) of secondary service connection, a service-connected disability claimed to have caused or aggravated a nonservice-connected disorder, the RO established service connection for PTSD in the September 2004 rating decision. Accordingly, element (2) of secondary service connection has been demonstrated. Concerning element (3), evidence of a nexus between the current disorder and a service-connected disability, the Board notes that the only medical nexus evidence of record addressing the Veteran's claim under the theory of secondary service connection is against the Veteran's claim. Specifically, after a thorough review of the Veteran's VA claims file as well as an interview with and physical examination of the Veteran, the October 2012 VA examiner opined that the Veteran's diabetes mellitus, type II, was not caused or aggravated by his service-connected PTSD. In support of these opinions, the examiner noted that the medical literature does not support a finding that PTSD causes diabetes mellitus, type II, and further noted that, the Veteran's symptomatology related to diabetes mellitus, type II, has worsened as per the natural progression of the disease rather than at an accelerated rate because of his service-connected PTSD. See the October 2012 VA examination report. The only nexus evidence of record which is favorable to the Veteran's claim under the theory of secondary service connection comes from the Veteran's representative. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Here, the Veteran's representative has asserted that his diabetes mellitus, type II, is secondary to his service-connected diabetes mellitus, type II, and/or service-connected PTSD. See the June 2012 statement from the Veteran's representative. The Board notes that the Veteran, himself, has not asserted that his diabetes mellitus, type II, was caused or aggravated by his service-connected PTSD. However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, diabetes mellitus, type II, is not a condition that can be causally related to PTSD without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his representative's statements as to the origin of his diabetes mellitus, type II, do not constitute competent evidence. As laypersons, the Veteran and his representative are not competent to provide evidence that requires medical knowledge because they lack the requisite professional medical training, certification and expertise to present opinions regarding such matters. Furthermore, the Board finds that the VA opinions of record, discussed above, concerning etiology of the Veteran's diabetes mellitus, type II, are more persuasive than the statements from the Veteran's representative. The VA examiner conducted a physical examination of the Veteran, reviewed the entire claims file and medical history of the Veteran, and provided nexus opinions with a supporting rationale. Thus, the Board finds that the VA examiner's opinions are more persuasive than the statements of the Veteran's representative with respect to the etiology of his diabetes mellitus, type II. The Board acknowledges the Veteran's representative, in the June 2012 statement, alluded to a website article that supposedly showed a relationship between diabetes mellitus, type II, and PTSD. The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Similarly, medical treatise evidence could "discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Mattern v. West, 12 Vet. App. 222, 229 (1999); Sacks v. West, 11 Vet. App. 314, 317 (1998), Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). However, the website alluded to by the Veteran's representative is of a general nature and does not contain any information or analysis specific to the Veteran's case. As such, the evidence submitted by the Veteran is not persuasive as to the etiology of his diabetes mellitus, type II. The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In light of above, the Board finds that the preponderance of the competent and credible evidence of record concerning a possible relationship between the Veteran's diabetes mellitus, type II, and his service-connected PTSD is unfavorable to the claim. Accordingly, element (3) is not demonstrated for the theory of secondary service connection. The Board acknowledges that service connection may be established on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). As noted above, a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. However, that same lay person is competent to provide evidence on the occurrence of observable symptoms during and following service. However, in the present case, the medical evidence of record reflects that the Veteran was initially diagnosed with diabetes mellitus, type II, in 2004; 32 years after his separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Indeed, the Veteran has not asserted that he has continuously been diagnosed with diabetes mellitus, type II, or experienced congruent symptomatology since his separation from service. This gap in time also weighs against any continuity of symptomatology. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for diabetes mellitus, type II, based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, type II. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for diabetes mellitus, type II, is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, or in the alternative, as secondary to service-connected PTSD, is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs