Citation Nr: 1322218 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 06-31 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from July 1974 to June 1978. The Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, originally denied entitlement to service connection for diabetes mellitus in a February 2003 rating decision, as the evidence of record did not show any diagnosis, treatment, or laboratory findings of the claimed condition. The Veteran sought to reopen his claim for entitlement to service connection for diabetes mellitus in December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision from the VA RO in North Little Rock, Arkansas, which denied reopening the claim of entitlement to service connection for diabetes mellitus. In October 2008, April 2009, and September 2010, this matter was remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development and readjudication. As discussed in the May 2012 Board Remand, the April 2009 and September 2010 Board Remands listed the issue on appeal as entitlement to service connection for diabetes mellitus. The September 2006 statement of the case (SOC) as well as the July 2010 and February 2012 supplemental statement of the cases (SSOCs) also characterized the issue on appeal as entitlement to service connection for diabetes mellitus. A detailed review of the record shows that the RO reopened the Veteran's claim and/or simply considered it on the merits in the September 2006 SOC, July 2010 SSOC, and February 2012 SSOC. To that extent, the Veteran and his attorney have consistently argued the merits of the claim. The Board therefore finds that it would not be prejudicial to the Veteran for the Board to address the merits of his claim. Bernard v. Brown, 4 Vet. App. 384 (1993). More importantly, as noted above, the RO originally denied the Veteran's claim of entitlement to service connection for diabetes mellitus in a February 2003 rating decision, as evidence of record did not show any diagnosis, treatment, or laboratory findings of the claimed condition. However, the Veteran subsequently submitted new and material evidence in support of his claim, to include private and VA treatment records showing clear diagnoses of diabetes mellitus, prior to the expiration of the appeal period. In this regard, the Court of Appeals for Veterans Claims (Court) has held that, if new and material evidence has been submitted within a year of the RO decision, 38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim (in this case, the Veteran's June 2002 claim). Buie v. Shinseki, 24 Vet. App. 242 , 242-52 (2010). Thus, the February 2003 decision is not considered final, as the evidence submitted within a year of that date is new and material to the claim, and is considered to be the proper rating decision on appeal. In addition, since the issuance of the February 2003 rating decision, service department records have been located and associated with the claims file. Those records contain a copy of the 1975 command history of the Veteran's assigned in-service vessel, which included information as to whether he was stationed in Vietnam during his period of active service. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. 38 C.F.R. § 3.156(c) (2012). For all the foregoing reasons, the Board will proceed with the instant claim as one for direct service connection, as opposed to a petition to reopen a previously denied claim for service connection for diabetes mellitus. The Board has accordingly characterized the issue as reflected on the title page. At his August 2012 Travel Board hearing, the issue of entitlement to service connection for asbestosis was mistakenly considered to be on appeal, and, as a result, testimony as to that issue was accepted. However, further review of the claims file has disclosed that in April 2009, the Board entered a decision, denying service connection for asbestosis, at the same time the issue of service connection for diabetes mellitus was remanded. That decision is final. Since then, the Veteran has filed an application to reopen the claim for service connection for asbestosis, which was denied by the RO in May 2013. However, the issue has not been developed for appellate consideration, and, therefore, the Board does not currently have jurisdiction over the claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not serve within the land borders in Vietnam, nor has actual exposure to Agent Orange been demonstrated. 2. Diabetes mellitus was first manifested many years after service, and is not related to any events which occurred in service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In letters dated in October 2002, prior to the initial adjudication of the claim, the RO notified the Veteran of the information necessary to substantiate the claim for service connection for diabetes mellitus, to include as a result of Agent Orange exposure, and of his and VA's respective obligations for obtaining specified different types of evidence. He was told that the evidence must show a relationship between his current disability and an injury, disease or event in military service. He was advised of various types of lay, medical, and employment evidence that could substantiate his service connection claim. In addition, in February 2006, he was provided information regarding assigned ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). He was also provided letters notifying him of VA's progress in obtaining confirmation of the activities of USS MAUNA KEA (AE-22) during the relevant time period. The appeal was remanded in October 2008, April 2009 and September 2010 to obtain verification of the locations and assignments of the USS MAUNA KEA (AE-22), to include any presence in Vietnam, from the Joint Service Records Research Center (JSRRC). The initial time frame requested was from 1974 through 1978, and the JSRRC responded that such a lengthy time period was too broad of a period to search. Upon determining that the Veteran was actually contending that his reported exposure occurred between February and June, 1975, a request was made for a more limited time period, and the JSRRC was able to provide Command Histories for 1974 and 1975. This substantially complies with the remand request, because the Veteran did not join the USS MAUNA KEA (AE-22) until November 1974, and May 7, 1975, marks the end point for the presumptive period of Agent Orange exposure in Vietnam; after that, his presence in Vietnam would not only be highly unlikely, but would not invoke the presumption; actual exposure would have to be shown. See McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (remand terms must be complied with, unless an explanation is provided as to why the terms will not be fulfilled). A Travel Board hearing was held pursuant to a May 2012 remand. Thus, there has been substantial compliance with the prior remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). Regarding the August 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had exposure to Agent Orange during service. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims folder. This was not necessary, however, because the Veteran's representative volunteered additional evidence. 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 claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 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). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). Service treatment records have been obtained, as have identified VA and private medical records. All available personnel records have been obtained. Command Histories for the USS MAUNA KEA (AE-22) were obtained for 1974 and 1975, the time period during which the Veteran contends that his exposure to Agent Orange occurred. According to a May 2009 Memorandum from the JSRRC, the JSRRC cannot document or verify that a shipboard Veteran was exposed to tactical herbicides. As will be explained below, there is no evidence that the veteran has qualifying in-country service in Vietnam such that his in-service herbicide exposure can be presumed, nor is actual exposure established. There also is no medical evidence that the veteran's current diabetes mellitus could be related to active service, nor does the Veteran contend that diabetes mellitus was present during or within one year of service. Thus, examinations are not required. See 38 U.S.C.A. § 5103A(d) ; 38 C.F.R. § 3.159(c)(4) ; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records do not show diabetes mellitus in service. In connection with an evaluation of urethritis in March 1977, it was noted that urinalysis showed glucose was negative. The report of the May 1978 separation examination also showed a urinalysis which was negative for sugar. After service, records from Jefferson Regional Medical Center show that during a hospitalization from May to June, 1996, the Veteran reported a previous medical history of diabetes mellitus, type II, and an elevated blood sugar of 217 was shown. The final diagnoses included probable diabetes type II. It was noted that he would probably have oral agent and diet started as treatment for his diabetes mellitus. He was again hospitalized in that facility in November 1997, at which time it was noted that he was taking Glucotrol XS for his diabetes. For unknown reasons, when seen for a cardiology consult by A. Fletcher, M.D., a few days after his hospital discharge in November 1997, the Veteran denied a history of diabetes, although he admitted to a family history of diabetes. VA records show that in May 2002, he was to be seen for a week later for a glucose check, and he had just been started on Metformin. Later records show a diagnosis of diabetes mellitus. Regardless of whether the Veteran was treated for diabetes mellitus during this interim period, the earliest contemporaneous evidence of diabetes mellitus is in 1996, eighteen years after his discharge from service, and he does not contend that diabetes mellitus was present a substantial period prior to that. He does not contend that diabetes mellitus developed during service, or within one year thereafter. Instead, he asserts that he was exposed to Agent Orange during service, and developed diabetes mellitus as a result. VA law provides that service incurrence for certain diseases, including type 2 diabetes and ischemic heart disease, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id.; see Stefl v. Nicholson, 21 Vet. App. 120 (2007); MR21-1MR, Part IV, Subpart ii, Chapter 2, § C. A Veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides such as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In other words, the physical presence of a Veteran within the land borders of Vietnam during service is required for the presumption to apply. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) The Veteran's DD Form 214 does not reflect Vietnam service. He served in the U.S. Navy, and after completion of his training, he was assigned to the USS MAUNA KEA (AE-22) in November 1974 until his separation from service in June 1978. In a statement dated in November 2002, the Veteran said that the USS MAUNA KEA (AE-22) had served in Vietnam waters during a period between February 1975, when she left the states, and August 1975, when she returned. He said he had been in the Gulf of Tonkin, and had handled many different herbicides. At an RO hearing in July 2003, the Veteran testified that that he had assisted in cleaning up operations in Vietnam, handling supplies during the withdrawal of the United States military from Vietnam. He stated that they passed some supplies onto other ships, and brought some back to the United States aboard the USS MAUNA KEA (AE-22). He said he did not know what they had handled. Due to the indication from this testimony that the Veteran had been in Vietnam, the Board obtained Command Histories of the USS MAUNA KEA (AE-22) for 1974 and 1975. These histories show that, for the time the Veteran was assigned to the USS MAUNA KEA (AE-22), she was located in California until May 22, 1975, when she departed across the Pacific. It should be noted that May 7, 1975, marks the end point for the presumptive period of Agent Orange exposure in Vietnam; therefore, by the time the Veteran reached the Far East, his mere presence in Vietnam would not invoke the presumption; actual exposure would have to be shown. In any event, the Command History does not show that the USS MAUNA KEA (AE-22) was in the Vietnam waters during 1975. She visited a number of ports in Guam, Japan, Korea, and the Philippines before returning to Hawaii in November 1975. At his Travel Board hearing before the undersigned in August 2012, the Veteran clarified that he did not in fact, set foot in Vietnam. What the USS MAUNA KEA (AE-22) had done was to move supplies which had been brought out of Vietnam. He testified that these supplies included barrels or drums which were transferred by forklift to the USS KITTY HAWK (an aircraft carrier). When they were returning from overseas, there were still about 12 drums in the hold, and the Veteran was told to dump them overboard. He indicated that he was involved in unloading drums to other ships, and in dumping them overboard. He said he was told, by the lead Petty Officer who had ordered the action, that the barrels contained Agent Orange. While not inherently incredible, there is no evidence corroborating the Veteran's assertion that the USS MAUNA KEA (AE-22) carried barrels of Agent Orange, some of which were reportedly illegally dumped overboard. His only basis for the belief is that he was told the barrels contained Agent Orange by a Petty Officer, but there is also no evidence of how the Petty Officer came by any such knowledge. In contrast, the Command History did not indicate that the USS MAUNA KEA (AE-22) transported any barrels of Agent Orange. Although it would be highly unlikely that any illegal dumping overboard of Agent Orange barrels would have been documented, nevertheless, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet.App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). A claimant's statement alone is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Id. As noted above, the Veteran has offered no support for his assertion, nor has he demonstrated any actual knowledge of the contents of the barrels. Moreover, according to a May 2009 Memorandum from the JSRRC, "the JSRRC has reviewed numerous official military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam Era. To date, the JSRRC has found no evidence that indicates Navy or Coast Guard ships . . . operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides." VA Adjudication Procedure Manual M21-1MR (M21-1MR), pt. IV, subpt. ii, §2, chapter C, ¶10(m) (Nov. 8, 2012). Finally, VA maintains a list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docking to the shore, and ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. See VA Adjudication Procedure Manual M21-1MR (M21-1MR), pt. IV, subpt. ii, §2, chapter C, ¶10(k) (Nov. 8, 2012). The USS MAUNA KEA (AE-22) is not listed as a ship which conducted any of those actions or as having a designation as a type of ship which operated on inland waterways. In view of these factors, the Board finds that the Veteran's contentions concerning Agent Orange exposure are insufficient to establish his claim. Even assuming his statements are credible, alone, they do not outweigh the presumption of administrative regularity, regarding the illegal activities. The JSRRC has found no evidence indicating that ships such as the USS MAUNA KEA (AE-22) transported or stored Agent Orange. The Veteran's belief, alone, that he was exposed to Agent Orange in the circumstances as described, does not outweigh the evidence against the claim. In view of the foregoing, the Board concludes that the Veteran was not exposed to herbicides such as Agent Orange during service, and that diabetes mellitus was not of service onset, or related to service. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs