Citation Nr: 1309736 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-33 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, secondary to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy, secondary to herbicide exposure or diabetes mellitus, type II. 3. Entitlement to service connection for erectile dysfunction, secondary to herbicide exposure or diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from March 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In this case, the Veteran's December 2006 and January 2007 claims, and his testimony during a July 2012 hearing before the undersigned Veterans Law Judge, make it clear that he contends that his diabetes mellitus, type II, is secondary to exposure to herbicide. They also make it clear that he contends that his peripheral neuropathy and erectile dysfunction are secondary to exposure to herbicide or diabetes mellitus. The Veteran has not contended, and the evidence does not suggest, that the claimed disabilities had their onset as a direct result of service, or may be presumed to have had their onset during active duty as chronic diseases. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, in this case the Board will not discuss direct service connection or presumptive service connection as a chronic disease. Robinson v. Mansfield, 21 Vet. App. 545 (2008). FINDING OF FACT The record does not show that during active service the Veteran set foot on land in the Republic of Vietnam, was presumptively exposed to herbicides or was actually exposed to herbicides. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in active service secondary to herbicide exposure and may not be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. Peripheral neuropathy, was not incurred in active service secondary to herbicide exposure and may not be so presumed, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110 , 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. Erectile dysfunction was not incurred in active service secondary to herbicide exposure and may not be so presumed, and is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1110 , 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a February 2009 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment and personnel records, VA medical records, a May 2009 memorandum from the U.S. Army and Joint Services Records Research Center (JSRRC), a September 2010 VA memorandum regarding the Veteran's herbicide exposure, and the transcript of a July 2012 hearing. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA has a duty to provide a VA examination expressing an opinion when the record lacks sufficient evidence to decide the veteran's claim, but contains evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, herbicide exposure has not been established. The Veteran does not assert that the claimed disabilities are related to service other than as a result of his alleged herbicide exposure. Thus, there is no evidence of a relevant in-service event, injury, or disease or an indication that any of the claimed disabilities may be related to service. See McLendon, supra. Accordingly, McLendon elements (2) and (3) are not met and therefore a VA examination is not required in order to decide this claim. Id; see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active service, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and acute and subacute peripheral neuropathy 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. 38 C.F.R. § 3.309(e). The disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "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. See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The General Counsel for VA interpreted 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. § 101(29)(A), 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. 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. 66 Fed. Reg. 23166 (May 8, 2001). Again, the presumption of exposure to herbicide in Vietnam requires that a veteran actually stepped foot on land in Vietnam. Haas, supra; VAOPGCPREC 27-97. In order for the presumption of exposure to Agent Orange 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. Service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. Open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau are considered extensions of ocean waters and not inland waterways. They are not considered similar to the rivers, canals, and estuaries that make up the inland waterway system. Id. Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. 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 also 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.) Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran does not contend that he ever set foot in Vietnam. Rather, he contends that he was exposed to herbicide while on board the USS TICONDEROGA, either directly through contact with aircraft that had been contaminated while at land bases in Vietnam, by drinking distilled water, or by using clothes and utensils that were washed with distilled water. He contends that the USS TICONDEROGA went in Cam Ranh Bay in December 1965 to pick up the Bob Hope Troupe, who were flown from shore to the ship in helicopters. The Veteran has submitted numerous lay statements from fellow servicemen that in December 1965, the USS TICONDEROGA was in Cam Ranh Bay. At that time, helicopters carried the Bob Hope Troupe from shore to the ship. One statement also asserts that crew of the USS TICONDEROGA would sometimes board aircraft on the ship's flight deck. These aircraft had been contaminated with Agent Orange on Vietnam land bases. Based on a thorough review of the record, the Board specifically finds that the record does not show that the Veteran set foot on land in the Republic of Vietnam, was presumptively exposed to herbicides during active service, or was actually exposed to herbicides during service. A September 2010 VA memorandum provides a formal finding that the Veteran did not serve in Vietnam as defined by M21-1MR IV.ii.1.H.28.a, or Training Letter 10-06. The memorandum explains the finding with detailed references to the facts of the Veteran's own case. Moreover, after applying the foregoing law to the facts of the Veteran's claim (i.e., service on the USS TICONDEROGA without setting foot on Vietnam soil) it is clear to the Board that the Veteran did not serve or visit on-shore in Vietnam. Indeed, during the July 2012 hearing, the Veteran conceded that he did not go ashore in Vietnam. July 2012 Hearing Transcript at p. 4. Thus, service connection for diabetes mellitus, type II, or peripheral neuropathy on a presumptive basis based on herbicide exposure is not warranted. 38 C.F.R. § 3.307(a). See Haas, supra. The Board is aware of the Veteran's assertions that he was exposed to herbicide on contaminated aircraft from Vietnam land bases. However, in a May 2009 memorandum for the record, the JSRRC stated that it 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. In this case there is no evidence that the Veteran was exposed to herbicide from aircraft onboard the USS TICONDEROGA. The Veteran and his fellow serviceman are simply not competent to state that any aircraft with which they came into contact onboard the USS TICONDEROGA was contaminated with herbicide. Their lay statements have not been corroborated by evidence in official documents. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Thus, their contentions do not show exposure to herbicide. The Board is also aware of the Veteran's assertions as to exposure to herbicide via distilled water. In Haas, supra, the Federal Circuit highlighted the VA's rulemaking with respect to an Australian scientific study: VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. . . . Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. . . . Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy. Crucially, based on this analysis, VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'" See Haas, 525 F.3d at 1194 [citing 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)]. Thus, the Veteran's contentions as to the use of distilled water on the USS TICANDEROGA do not show exposure to herbicide. See also Bardwell, supra. In sum, the Board finds that the preponderance of the evidence is against service connection for diabetes mellitus, peripheral neuropathy and erectile dysfunction as secondary to exposure to herbicide. As a result, the Board finds that the preponderance of the evidence is also against service connection for peripheral neuropathy and erectile dysfunction as secondary to diabetes mellitus. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for diabetes mellitus, type II, secondary to herbicide exposure, is denied. Service connection for peripheral neuropathy, secondary to herbicide exposure or diabetes mellitus, type II, is denied. Service connection for erectile dysfunction, secondary to herbicide exposure or diabetes mellitus, type II, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs