Citation Nr: 1316622 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-02 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus (DM), to include as due to exposure to herbicides. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1969. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the benefits sought on appeal. In June 2011, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of the hearing has been associated with the Veteran's claims file. In March 2012, the Board remanded the matters remaining on appeal for further development. The case has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. During his active service, the Veteran served on board the USS Goldsborough. 2. There is no indication that during the Veteran's active service he had duty or visitation in the Republic of Vietnam. 3. Type II DM is not shown to have been present in service, in the initial post-service year, or for many years thereafter, nor has it been shown to be the result of exposure to herbicides that include Agent Orange. 4. The Veteran does not have bilateral hearing loss which is attributable to service or that was first manifest within one year of separation from service. CONCLUSIONS OF LAW 1. As defined by regulation, the Veteran had no service in the Republic of Vietnam. 38 U.S.C.A. §§ 501, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.313 (2012). 2. DM was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp, 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 3. Bilateral hearing loss was not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated 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) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, but rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears the burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in May 2009, March 2012, May 2012, and August 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had met the criteria for service connection. The VLJ also sought to identify any pertinent evidence not currently associated with the claims and the Veteran also volunteered this information. The case was also remanded for further development. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. With regard to hearing loss, the Veteran also was provided examinations by VA, including for a medical nexus opinion concerning the etiology of the claimed disorders and their potential relationship with military service, as the Board directed when remanding these claims in March 2012. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical nexus opinion obtained is responsive to the determinative issue of causation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). The examinations of record are adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there is discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examination reports are thorough and supported by the record. The records taken as a whole satisfy 38 C.F.R. § 3.326. With regard to DM, the Board also finds that a VA examination is not necessary to determine whether his DM is related to his period of honorable service, as the standards of the recent decision of the Court in McLendon have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence is on file for the VA to make a decision on the claim. Id at 81. In this case, it is essentially the Veteran's contention that service connection is warranted for DM as being secondary to herbicide exposure as discussed below. Since the Veteran did not have "Vietnam Service" as set forth below, service connection is not established on that basis. Otherwise, the Veteran did not have DM during service, in the presumptive period, or for many years post-service. In light of these findings, the prongs of McLendon have not been met. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court. Furthermore, in obtaining additional medical evidence and conducting the directed development in this case, the Board is satisfied there was compliance with the prior remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See 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."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, DM and sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption 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. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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 a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where 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 service is required to support the claim. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report what he observes and feels through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). 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 or bases 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). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly 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 determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. DM VA law and regulations further provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). 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. 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. If a veteran, who served in the Republic of Vietnam 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 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with 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 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, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). Section 2 of the Agent Orange Act of 1991, Pub. L. 102-4 (Act), codified in pertinent part at 38 U.S.C.A. §§ 1116(b) and (c), provides that whenever the Secretary determines, based on sound medical and scientific evidence, that a positive association (i.e., the credible evidence for the association is equal to or outweighs the credible evidence against the association) exists between exposure of humans to an herbicide agent and a disease, the Secretary will publish regulations establishing presumptive service connection for that disease. If the Secretary determines that a presumption of service connection is not warranted, he is to publish a notice of that determination, including an explanation of the scientific basis for that determination. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. Although 38 U.S.C. § 1116 does not define "credible," it does instruct the Secretary to "take into consideration whether the results [of any study] are statistically significant, are capable of replication, and withstand peer review." Simply comparing the number of studies which report a positive relative risk to the number of studies which report a negative relative risk for a particular condition is not a valid method for determining whether the weight of evidence overall supports a finding that there is or is not a positive association between herbicide exposure and the subsequent development of the particular condition. Because of differences in statistical significance, confidence levels, control for confounding factors, bias, and other pertinent characteristics, some studies are clearly more credible than others, and the Secretary has given the more credible studies more weight in evaluating the overall weight of the evidence concerning specific diseases. Section 3 of the Act directs the Secretary of VA to seek to enter into an agreement with the NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. Claims based on Agent Orange exposure are unique in that entitlement, under the presumptions codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, is based on an analysis of scientific evidence. Section 3 of the Agent Orange Act of 1991 directed the Secretary of VA to seek to enter into an agreement with NAS to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). In addition, the Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include hepatobiliary cancers, nasal/nasopharyngeal cancer, bone cancer, female reproductive cancers, breast cancer, renal cancer, testicular cancer, leukemia, abnormal sperm parameters and infertility, cognitive and neuropsychiatric disorders, motor/coordination dysfunction, chronic peripheral nervous system disorders, metabolic and digestive disorders, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, gastrointestinal tumors, bladder cancer, brain tumors, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232-59243 (1999). Recent action concerning herbicide-related disability has been undertaken by VA. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. The term ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina. "Service in the Republic of Vietnam" includes military service in the waters offshore and military service in other locations if the conditions of the military service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). It is established law that a veteran must have set foot on the land mass of Vietnam, or have been present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity) in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas, 525 F.3d 1168. VA's General Counsel has held that service on a deep-water naval vessel off the shores of Vietnam may not be considered qualifying military service in Vietnam. VAOPGCPREC 27-97 (July 23, 1997). VA reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam ("blue water" versus "brown water")) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See 66 Fed. Reg. 23166 (May 8, 2001). Thus, VA made a distinction between military service offshore ("blue water") and those veterans (referred to as "brown water" veterans) who served aboard smaller river patrol and swift boats that operated on the brown-colored rivers, canals, estuaries, and delta areas making up the inland waterways of Vietnam. Brown water Navy and Coast Guard veterans receive the same presumption of herbicide exposure as veterans who served on the ground in Vietnam. See VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. The Veteran contends that he was exposed to herbicides while serving aboard the USS Goldsborough. He indicated that he was aboard this vessel from 1966 to 1969. In 1967, he reported that the vessel was stationed at the mouth of the Song Giang River and traveled up that river to a position to fire north of the demilitarized zone (DMZ) into Dong Hoi ,North Vietnam. He related that the ship blocked the river so that the enemy could not run supplies from the sea inland to forces, and the reverse. Internet documentation on the USS Goldsborough shows that this vessel provided gun support for Operation "Bunh Phu I" again Vietcong troops in April 1966. In June 1966, she was again stationed off of Vietnam at the Picket Station. The RO attempted to verify whether the Veteran served in Vietnam through the appropriate service department, including the US Army and Joint Service Records Research Center, as well as VA's Information from Personnel Information Exchange System. It was determined that the Veteran served aboard the USS Goldsborough in the official waters of Vietnam from September 20, 1967 to September 21/1967, from September 27, 1967 to September 31, 1967, and on November 21, 1967. The vessel was also stationed in these waters from December 12, 1968 to February 18, 1969. The Veteran did not have verified in-county Vietnam service, and, he admitted at his Board hearing that he never stepped foot in Vietnam. While the Veteran was stationed aboard the ship, the vessel came under enemy fire and provided naval gunfire support. She participated in Operation Sea Dragon near the coast of North Vietnam. The vessel also conducted a mission in the vicinity of the Song Giang River in North Vietnam. Later, the vessel conducted operations near the DMZ during the Battle of Con Thien. Subsequently, further operations were conducted in support of Sea Dragon operations off the coast of North Vietnam. VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records which is found on VA's website. The vessels are placed in five categories of ships that operated on the waters of Vietnam. A ship is placed on this list when documentary evidence shows that it fits into a particular category. The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents. A specific ship may be listed in more than one category, based on its activities. Evidence requirements for the presumption of Agent Orange exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates. Ship categories include: I. Ships operating primarily or exclusively on Vietnam's inland waterways This category includes smaller naval vessels involved with patrolling and interdicting enemy activity on the inland waterways of Vietnam. It also includes ships supplying and supporting those operations. Examples of such vessels include swift boats, river patrol boats, and LSTs [landing ship, tank]. The inland waterways are often referred to as "brown waters" because of their muddy color and the naval vessels operating on them are referred to as the Brown Water Navy and/or the Mobile Riverine Force. All Veterans who served aboard these vessels are eligible for the presumption of Agent Orange exposure because their primary service was on the inland waterways of Vietnam. II. Ships operating temporarily on Vietnam's inland waterways This category includes large ocean-going ships that operated primarily on Vietnam's offshore waters for gunfire support of ground operations and interdiction of enemy vessels travelling along coastal waters. It also includes ships supplying and supporting these operations. Examples of such vessels include destroyers, cruisers, and cargo ships. The deep offshore waters are often referred to as "blue waters" and naval vessels operating on them are referred to as the Blue Water Navy. Ships in this category entered Vietnam's inland waterways temporarily as part of their gunfire, interdiction, or support missions. All Veterans who served aboard these vessels at the time of entry into Vietnam's inland waterways are eligible for the presumption of Agent Orange exposure. III. Ships that docked to shore or pier in Vietnam This category includes large ocean-going ships of the Blue Water Navy that entered an open water harbor and docked at 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. IV. Ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore This category includes large ocean-going ships of the Blue Water Navy that conducted a variety of missions along the close coastal waters of Vietnam for extended periods of time. Documentary evidence has been obtained for all ships in this category showing that some crewmembers actually went ashore. Examples of such vessels include hospital ships, harbor repair ships, mine sweepers, and seaplane tenders. Also included are combat ships, such as destroyers, when evidence shows that crewmembers went ashore. Because shore activity of some crewmembers has been documented, any Veteran aboard the ship at the time of documented shore activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. V. Ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore This category includes large ocean-going ships of the Blue Water Navy that conducted supply missions to Vietnam or transported troops into and out of the country through use of smaller landing craft housed within the mother ship. Examples of such vessels include attack cargo ships, amphibious attack transports, and landing ship docks. The smaller landing vessels within these ships required a crew of from 3 to 14, depending on size, as they ferried supplies or troops to and from shore. Although official documents show that some crewmembers went ashore with the landing craft, they do not generally provide the names of these crewmembers. Additionally, many of these ships are listed for extended time frames because they routinely travelled back and forth between the US and Vietnam, and between Vietnam and other Asian Pacific ports, as they delivered supplies and troops to Vietnam. Therefore, military records should be checked to ensure that the Veteran was aboard when the ship was in Vietnamese waters (as shown by a PIES O34 request). Any Veteran aboard the mother ship during the time frame of offshore Vietnam landing craft activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore with the landing craft. See http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm. In viewing all of these categories, the USS Goldsborough is not among any of the vessels identified. At the Board hearing, the Veteran and his representative indicated that the notation that the USS Goldsborough was stationed in or near the DMZ basically meant that the Harbor NA riverway at Tan Trane was accessed, although the Veteran indicated that he was below deck and could not indicate for sure essentially the exact route. However, this would place the vessel in the second category above, but it is not recognized, as noted, in any of those groups. The Board acknowledges that the USS Goldsborough was in the official waters of Vietnam while the Veteran was serving onboard. Although it is asserted that this vessel served in the brown waters of Vietnam, such service was not verified and the USS Goldsborough is not among the vessels recognized as having such service. The Secretary has determined that the evidence available at this time does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans, i.e., those veterans who served in deep water naval vessels off the coast of Vietnam during the Vietnam War. The Secretary's decision is based on careful review of a May 2011 Institute of Medicine (IOM) of the National Academy of Sciences report entitled "Blue Water Navy Vietnam Veterans and Agent Orange Exposure." This report was completed at the request of VA. The IOM reviewed a wide range of data sources and concluded that there is insufficient evidence to determine whether Blue Water Navy Veterans were exposed to Agent Orange-associated herbicides during the Vietnam War. Further, there is no evidence of record that shows that the Veteran had actual incountry service or visitation in Vietnam. Indeed, he states that he did not. As such, the Board does not find the Veteran had "service in the Republic of Vietnam" in order to be considered to have had qualifying military service and presumed exposure to herbicides. Since the Veteran did not serve in Vietnam during the requisite period of time, he is not presumed to have been exposed to Agent Orange or other herbicides. Accordingly, service connection for DM must be denied on that basis. 38 C.F.R. § 3.309(e) (2008); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009). Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It has been specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The service treatment records do not reflect complaints, findings, treatment, or diagnosis of DM, nor was DM present in the initial post-service year. The Veteran was afforded a post-service examination in March 1970, but DM was not shown at that time. Post-service, DM was not diagnosed for decades. A June 2007 report from the Warren Clinic, reflected that the Veteran had a borderline sugar reading so it was indicated that he should be monitored. A subsequent August 2007 report noted that the Veteran was glucose intolerant. In August 2011, the Veteran reported that he was diagnosed with DM. Private medical records from Dr. R.V. were received which reflect a diagnosis of type II DM. At his hearing, the Veteran's sole contention was that the currently diagnosed DM was due to herbicide exposure. However, as noted above, there is no inservice evidence of DM. The earliest clinical indication of the presence of DM was in 2007, with a diagnosis following afterwards. This time frame post-dates service by over 30 years. The Board observes that, based on the entire evidence of record, there is no indication that, at any time during the Veteran's period of active service, or for many years thereafter, he suffered from DM. As noted, the Veteran argues that, based on his service during the Vietnam era, he is entitled to a presumption of service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309 (2012). While it is true that DM is one of those disabilities for which service connection might be granted on a "presumptive" basis where there has been a diagnosis of that disability and "service in the Republic of Vietnam," there is no indication that the Veteran meets both of those requirements, as set forth above, despite his sincere testimony. Based on the aforementioned, the Board is unable to reasonably associate the Veteran's DM, first documented many, many years following service discharge, with any incident or incidents of his period of active military service or within the one year presumptive window. Accordingly service connection for type 2 diabetes mellitus on a direct and a presumptive basis must also be denied. Bilateral Hearing Loss The Veteran served in combat situations in the Vietnam War. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In cases involving claims for hearing loss, the Veteran must have a certain level of hearing loss before VA considers it to be a ratable disability. Thus, there may be occasions when a Veteran has hearing loss, but it is insufficient hearing loss to consider it an actual disability by VA standards. Hearing loss disability is defined by regulation. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Since November 1, 1967, audiometric results have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Service department audiometric charts dated after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units. The service treatment records reflect that on the entrance examination, in May 1966, pure tone thresholds, in decibels, were as follows, following conversion to ISO-ANSI units: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 15 LEFT 25 20 20 15 Thus, hearing loss within the parameters of 38 C.F.R. § 3.385 was not shown. The September 1969 discharge examination only included whisper voice testing of 15/15. Post-service, the Veteran was afforded an audiological examination in June 2009. At that time, the Veteran reported that he had experienced hearing loss over the past several years with a gradual onset. During service, the Veteran reported that he had been exposed to loud noises in the boiler room and from weapons firing. He also reported post-service work and recreational noise exposure. On the authorized audiological evaluation in, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 25 LEFT 15 20 25 25 25 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The puretone threshold average in the right ear was 25. The puretone threshold average in the left ear was 23.75. The examiner stated that the Veteran did not have hearing loss. Again, there was no hearing loss per 38 C.F.R. § 3.385. At his hearing, the Veteran attested to inservice acoustic trauma in the boiler room. His wife also testified that the Veteran exhibited problems hearing. The Veteran was afforded another VA examination in June 2012. On the authorized audiological evaluation in, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 25 LEFT 10 10 10 15 20 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The puretone threshold average in the right ear was 15. The puretone threshold average in the left ear was 14. The examiner stated that the Veteran's hearing was within normal limits; thus he did not have hearing loss which was the result of military service. Indeed, there was no hearing loss per 38 C.F.R. § 3.385. In this case, the Board acknowledges that the Veteran is competent to report that he had problems with his ears and his wife is also competent to report what she has observed. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. The Board finds his statements of inservice acoustic trauma and the statements of the Veteran and his wife that he has difficulty hearing to be credible, also. However, the Board finds that the claimed "hearing loss" as defined by VA may not be diagnosed by unique and readily identifiable features because special equipment and testing is required to diagnose hearing loss as defined by 38 C.F.R. § 3.385 and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. Id. The audiogram studies of record show that the Veteran does not have hearing loss for VA compensation purposes as set forth in 38 C.F.R. § 3.385. The Court has consistently held that, under the law cited above, "[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 disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); see also Gilpin. A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). In the absence of proof of a present disability, there can be no valid claim. Rabideau. Since the Veteran does not currently have hearing loss according to VA's standards, service connection is not warranted. Conclusion The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER Service connection for diabetes mellitus (DM), to include as due to exposure to herbicides, is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs