Citation Nr: 1315673 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 06-10 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for Type 2 Diabetes Mellitus, including as secondary to exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from November 1962 to May 1982. This appeal to Board of Veterans' Appeals (Board/BVA) is from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, service connection was also denied for lumbar and cervical spine arthritis, gastroesophageal reflux disease (GERD), bilateral hearing loss, high cholesterol, an ankle disorder, and skin cancer. And in his March 2006 Substantive Appeal (on VA Form 9), the Veteran perfected his appeal to the Board of all of these other claims, except the one for high cholesterol. This perhaps was because hyperlipidemia, elevated triglycerides, and elevated cholesterol are merely laboratory results or findings and not, in and of themselves, ratable disabilities for VA compensation purposes. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). In August 2007, the Veteran provided testimony in support of his claims at a hearing at the RO before an Acting Veterans Law Judge (AVLJ) of the Board, which is commonly referred to as a Travel Board hearing. During that proceeding, the Veteran withdrew his claim for service connection for an ankle disorder. 38 C.F.R. § 20.204. In April 2008, the Board remanded the remaining claims for additional development. Meanwhile, in the interim, on September 21, 2006, the Secretary of VA had imposed a stay on the adjudication of claims based on herbicide exposure in which the only evidence of exposure was receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Since the Veteran's claim of entitlement to service connection for Type 2 Diabetes Mellitus was (and still is) premised on his service in the waters close to the shore of Vietnam, this claim was subject to the temporary stay and, therefore, not adjudicated. A December 2009 RO rating decision since issued granted service connection for bilateral hearing loss. And because the Veteran did not in response appeal either the rating or effective date assigned, there is no longer a claim before the Board concerning his hearing loss disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). The remaining claims again came before the Board and, in a July 2010 decision, service connection additionally was granted for the GERD and skin cancer, whereas service connection for the lumbar and cervical spine disorders was denied. The Board instead remanded the claim for service connection for Type 2 Diabetes Mellitus for further development and consideration. Since the AVLJ who had presided over the Travel Board hearing in August 2007 and who since had authored the remand was no longer employed at the Board, the Veteran was notified of this and of his resultant right to have another hearing before a different VLJ, pursuant to 38 C.F.R. § 20.707 (2012), who would ultimately decide this remaining claim on appeal. And since he indicated in response in July 2012 that he wanted another hearing, the Board again remanded this remaining claim later in July 2012 to schedule this additional hearing. The Veteran had this additional hearing in March 2013, this time using videoconferencing technology. The undersigned VLJ presided. FINDINGS OF FACT 1. The Veteran does not have verified service in Vietnam, meaning in country, either on the landmass or inland waterways or otherwise duty or visitation. 2. His Type II Diabetes Mellitus initially manifested many years after his military service, well more than one year after the conclusion of his service, and has not been shown by competent and credible evidence to be related to any event, injury or disease during his service. CONCLUSION OF LAW His Type II Diabetes Mellitus was not incurred in or aggravated by his military service and may not be presumed to have been, including on the premise that it is the result of exposure to Agent Orange in or around Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When the claim is for service connection, the notice should address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, (4) disability rating, and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice also should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, April and August 2004 pre-decisional letters provided the Veteran the required notice of the evidence and information necessary to substantiate this claim, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence. Although he did not receive notice consistent with Dingess as concerning the "downstream" disability rating and effective date elements of this claim, that was because those notice letters were sent prior to the Court issuing the Dingess decision, which did not occur until 2006. Moreover, and in any event, given that service connection is being denied, and hence no rating or effective date will be assigned, not receiving notice concerning the "downstream" disability rating and effective date elements of this claim is ultimately moot, so nonprejudicial. 38 C.F.R. § 20.1104 (harmless error). VA also has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate this claim. His service treatment records (STRs) and military personnel records are in his claims file, and VA has obtained all pertinent or identified post-service records that could be obtained. Although he stated during his March 2013 videoconference hearing before the Board that he did not think that VA had all of his private treatment records concerning his diabetes, remanding to obtain these additional records would only cause unnecessary delay in deciding this claim and provide no additional benefit to him since, as will be explained, these records could not possibly establish the required exposure to Agent Orange during his service, which is the essential basis of his claim inasmuch as this is the specific reason he is alleging he later developed diabetes, so the source of it. Without the required proof of this alleged exposure to Agent Orange during his service, his diabetes necessarily cannot be a result or consequence, even accepting that he has it and even accepting that these additional treatment records might, as example, discuss this diagnosis and the modalities or means of treatment for this condition that have occurred. More germane to this appeal, however, is the matter of whether he was exposed to Agent Orange during his service, and without the required proof of that (i.e., relevant injury in service), the additional issues of proof of current disability, such as in the way of confirmation of this diagnosis, and attribution of this present-day diagnosis to his military service, i.e., causation, become nullities. The Court has held that remanding in this circumstance should be avoided since it would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran. See Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). The reason why additional treatment records are not needed to decide this claim is because a critical aspect of his claim, namely Agent Orange exposure, or in more general terms herbicide exposure, cannot be established merely by treatment records, including especially these additional post-service private treatment records mentioned. This is particularly true since the evidence establishes that his service did not involve close proximity to Vietnam landmass so as to result in herbicide exposure. Such qualifying service in Vietnam includes, at the very least, presence on the inland waterways ("brown water"), which he clearly does not have proof of. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 129 S. Ct. 1002 (2009); VAOPGCPREC 27-97. It is also noteworthy that he testified than no physician had stated at any time in years past, one way or the other, as to whether his diabetes was due to herbicide exposure. See page 20 of the August 2007 hearing transcript. Therefore, the likelihood of any nexus evidence being contained in these additional treatment records is highly improbable, if not outright impossible. Hence, the Board concludes these additional treatment records would not alter the outcome of this appeal since the claim fails for other reasons. The Veteran was not afforded a VA examination since a medical opinion is not necessary to decide this claim. Although he has a diagnosis of diabetes mellitus, so confirmation he has this claimed disability, the evidence indicates he was not exposed to herbicides during his military service. That claimed precipitating event, since not shown to actually have occurred, thus cannot be the reason he now has diabetes. There simply is no competent and credible evidence indicating there is a nexus or etiological link between his military service - especially his claimed exposure to Agent Orange since not shown to have occurred - and this eventual diagnosis, which did not happen until many years after his service had ended, indeed, well beyond even the one-year presumptive period following the conclusion of his service otherwise allowing for the presumption this condition was incurred during his service. Type II Diabetes Mellitus is subject to two presumptions, the one provided by 38 C.F.R. § 3.309(a) and the other by § 3.309(e). But there is not the required evidence concerning either to warrant the scheduling of a VA compensation examination for a medical opinion. His mere belief that this condition is the result of herbicide exposure is insufficient to trigger the duty to assist by arranging for a VA compensation examination and opinion, as this would circumvent the craftily tailored language of the statutes and regulations governing when examinations and opinions should be obtained. VA is not required to schedule an examination for a medical opinion merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). In disability compensation (service-connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Court has stated that the third element of McLendon establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomatology capable of lay observation. Id. So when determining whether a VA examination and medical opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, though, there is no such indication, even in the most minimal sense, only instead at most what amounts to pure speculation. Thus, a VA compensation examination for a medical opinion is not needed to fairly decide this claim. The Veteran additionally had a Travel Board hearing before an AVLJ in August 2007 and more recently a videoconference hearing in March 2012 before the undersigned VLJ. According to 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the presiding VLJ to: 1) explain fully the issues and 2) suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the presiding VLJ's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the AVLJ and undersigned VLJ identified the issue on appeal and during the course of the hearing engaged in a discussion regarding evidence that would be especially relevant to the claim - such as, most importantly, evidence tending to show the Veteran was exposed to Agent Orange in some capacity during his military service. He therefore needed to expound on the circumstances of his service that might have subjected him to this type of chemical dioxin exposure, as only once this was shown to have occurred would there also need to be nexus evidence suggesting a correlation between this claimed disability and the alleged exposure to herbicides during his service to, in turn, allow for the presumption of said exposure and presumed attribution of this eventual diagnosis to that exposure. Moreover, he did not raise any new issues pertaining to this claim during the course of his hearings. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the AVLJ's and VLJ's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence that was missing or may have been overlooked was satisfied. See id. at 496-97. The Veteran has not alleged there was any deficiency in the conducting of his hearings, including in relation to the presiding AVLJ's and VLJ's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice his claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) nonetheless had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Given the additional development of this claim by the RO/AMC and the Board as a result of remanding this claim in July 2010 and July 2012, the Board finds that any perceived deficiency in the hearings was non-prejudicial. See id. This is especially true recognizing the Veteran has evidenced his actual knowledge of the type of evidence and information needed to substantiate his claim, including in his responses to the questions posed to him during his hearings. Actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The additional development of this claim directed by the Board's July 2010 remand was completed, including insofar as obtaining clarification from the Veteran regarding the circumstances of his service and obtaining his service personnel records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). He also had the additional hearing before the Board as a result of the additional remand of this claim to schedule this additional hearing, so there also was compliance with that remand directive. Id. The Board therefore is proceeding with the adjudication of this claim. Legal Criteria and Analysis In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). But to establish entitlement to service connection based on a showing of continuity of symptomatology since service, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As already alluded to, there also are two ways the Veteran may establish his entitlement to service connection for Type 2 Diabetes Mellitus on an alternative presumptive basis. Certain enumerated diseases, including diabetes mellitus, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101,1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The second presumption involves Veterans who were exposed to herbicides, such as Agent Orange, during service. The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption of service connection 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). Type 2 Diabetes Mellitus is one of the diseases associated with herbicide exposure for purposes of this presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant service connection, the condition may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). The Federal Circuit Court issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525), affirming VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In addition, the Federal Circuit Court in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. What constitutes "inland waterways" is not defined in VA regulations; however, the VA Adjudication and Procedure Manual ("Manual") provides interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. Manual, M21-1MR, Part 4, Subpart. II, ch. 2, sec. C(10)(k) (December 16, 2011). However, "blue water" service is expressly excluded since the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. These are considered to be part of the offshore waters of Vietnam, in part, because of their deep-water anchorage capabilities. The Manual does note an exception regarding Veterans who served as a coxswain aboard the ship and reported going ashore during anchorage. Id. Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements. First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or elsewhere outside of Vietnam where Agent Orange was used or sprayed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from alternatively establishing entitlement to service connection with proof of direct causation linking his claimed disability to his military service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). So, to summarize, entitlement to service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson,21 Vet. App. 303 (2007) (the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues; their competency depends entirely on the specific disability at issue. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Specifically, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, supra; see also Jandreau, supra; Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). However, laypersons also have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, he prevails. See Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning now to the facts and circumstances of this particular case. The Veteran's service treatment records (STRs) do not contain any complaints, findings, or diagnoses of diabetes mellitus. Indeed, to the contrary, a March 1982 dental health questionnaire specifically contains a negative response regarding diabetes. His military service ended in May 1982. The Veteran testified in August 2007 that he was first diagnosed with diabetes 2 or 3 years earlier, meaning in 2004 or 2005 or thereabouts, so concededly not until well after his military service had ended and well beyond the one-year presumptive period following the conclusion of his service, which had expired in May 1983, allowing for the presumption under § 3.309(a) that his diabetes was incurred during his service. His post-service medical records indicate the initial diagnosis actually was in 2002, so a bit earlier than he had estimated but nonetheless still many years after his service had ended. That initial diagnosis was made after he was found to have abnormal glucose levels. See November 2002 private treatment records. He has continued to carry this diagnosis of diabetes during the several years since. See private treatment records dated in August 2006, August 2007, and February 2009. Thus, he is shown by competent and credible evidence to have this claimed disability. So resolution of this claim instead turns on whether his diabetes is the result of his military service and, in particular, his alleged exposure to Agent Orange in and around Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In associating his diabetes with his military service, he points out that he was assigned to the U.S.S. Henry B. Wilson in May 1963 after completing boot camp and that, during his time stationed aboard that ship, he had several deployments for search and rescue at Yankee Station, which is off the Vietnam coast. He adds there were also several deployments to Vietnam for shore bombardment and gun fire support inside Da Nang harbor. While assigned to the U.S.S John Paul Jones he was again deployed to Yankee Station for search and rescue on 2 or 3 occasions. See statement dated September 2004. In an August 2005 statement he added that there was no family history of diabetes and that he was 3 to 5 miles off the coast of Vietnam anywhere from 30 to 60 days at a time. Several times the U.S.S. Henry B. Wilson entered Da Nang harbor and was able to get close to the beach using lead lines for shore bombs. His August 2007 hearing testimony was consistent with his previous statements and he added that, by using the lead line to shore bomb, they were able to get within 50 to 100 yards of the beach. On a couple of occasions they anchored in Da Nang, but the rest of the time they were off the coast conducting search and rescue. See page 19 of the hearing transcript. He also acknowledged, however, that no physician had stated one way or the other as to whether the diabetes was due to herbicide exposure versus other factors unrelated to his military service. See page 20 of the August 2007 hearing transcript. During his most recent hearing in March 2013, he testified to the effect that he could not recall ever going ashore to Vietnam, and it was clarified that the basis of his claim was not his personal presence on Vietnam landmass, rather, that his ship was close enough to shore for him to have been exposed to Agent Orange. His service personnel records show that, during the Vietnam era, he served aboard the U.S.S. Henry B. Wilson (February 1963 to November 1966), U.S.S. Dewey (July to October 1967), U.S.S. Vogelgesang (November 1967 to March 1970), and U.S.S. John Paul Jones (June 1973 to June 1975). In November 2004, the National Personnel Records Center (NPRC), which is a military records repository, provided information affirming he served aboard the U.S.S Henry Wilson, which was in the official waters of the Republic of Vietnam from July 19, 1965 to July 23, 1965, from July 31, 1965 to June 30, 1965, and from September 26, 1965 to October 31, 1965, but there is no official record establishing he actually ever set foot in Vietnam and, as mentioned, even he since has conceded he never did. VA maintains a website of ships associated with Vietnam service and exposure to herbicide agents (http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm). As noted by the Veteran's representative during the March 2013 hearing, the U.S.S. Henry B. Wilson was docked at the Da Nang pier from April l2, 1967 to September 29, 1971, but that was after the Veteran was no longer serving aboard this ship. And although this ship was listed on the website, it was listed in category III, which refers to ships that were merely docked to shore or pier. The website explains that this category includes large ocean-going ships of the Blue Water Navy that entered an open water harbor and docked to a pier or otherwise docked to the shore of Vietnam. As a result of this docking, it is assumed that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Therefore, any Veteran aboard the ship at the time of docking will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. The representative also conceded that the U.S.S. John Paul Jones was not on the list at all. VA's website also shows that the U.S.S. Vogelgesang provided gunfire support while in the Thu Bong River from October 18 to October 29, 1966 and anchored in Da Nang harbor on August 15, 1966, but the Veteran was not serving aboard this ship at those times. The U.S.S. Vogelgesang is listed in category II, which contains ships that operated temporarily on Vietnam's inland waterways. The U.S.S. Dewey was not included on the list. Records of the activities of the U.S.S. Vogelgesang show the ship was not in the vicinity of Vietnam during the Veteran's service aboard the ship and its only combat cruise ended in November 1966. So despite his contentions of being "close to" the shores of Vietnam, there is no official record of qualifying service placing him close enough, that is in the inland waterways ("brown water") so as to invoke the presumption of herbicide exposure. And, again, even he acknowledges never actually having set foot in Vietnam. One of his ships was shown to be present in the inland waters of Vietnam, but not during a time when he was serving aboard the ship. Although he contends that his ships were docked in Da Nang harbor, although there is no corroboration of this while he served on them, and even though he sincerely believes that he was close enough to have been exposed to Agent Orange, Da Nang harbor is specifically not considered an inland waterway. The holding in Haas recognized that the bright line division of what constituted "blue water" versus "brown water" service aboard a ship off the coast of Vietnam likely would have the unfortunate result of including certain Veterans in the class presumed to have been exposed to Agent Orange while at the same time excluding others to their detriment. But the Haas holding made clear that VA's interpretation of its regulations was not arbitrary or capricious, so permissible to make this critical distinction. Service at Yankee Station also does not reflect qualifying service because it is not part of the inland waterways. The Board takes judicial notice of the fact that "Yankee Station" was a point in the Gulf of Tonkin off the coast of the Republic of Vietnam. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (judicial notice may be appropriate for facts that are "not subject to reasonable dispute."); McCreary v. Nicholson, 19 Vet. App. 324, 327 (2005) (providing for judicial notice). Since the Veteran is not shown to or alleged to have stepped foot on Vietnam soil and he was not within the inland waterways of Vietnam while serving on a ship, the presumption of herbicide exposure is inapplicable and, therefore, there is no presumption that his diabetes mellitus is related to herbicide exposure. The other potential presumption available is also not applicable in this case since his diabetes mellitus was not diagnosed or manifested to a compensable degree during the one-year presumptive period following his separation from service, meaning by May 1983. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Instead, the disorder was not first suspected or diagnosed until some 20 years after he had separated from military service. The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease (diabetes mellitus) in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology following the conclusion of his service and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder). Here, even once diagnosed, there is no competent evidence relating his diabetes to his military service, including especially to exposure to herbicides. Furthermore, he is unaware of any evaluating physician that has associated the diabetes to service. For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable and that the claim resultantly must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The claim of entitlement to service connection for Type 2 Diabetes Mellitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs