Citation Nr: 1326642 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-14 924A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas. The Veteran initially filed his claim in 2005, and the claim was initially denied in a December 2005 rating decision. Although the RO started adjudicating the claim in a new-and-material basis in a May 2009 rating decision and continuing denying the reopening of the claim, the appellant since the March 2009 rating decision, the last one adjudicating the claim on a de novo basis, has submitted new and material evidence, specifically buddy statements about his service off the shore of Vietnam, within the one-year appeal period of the March 2009 rating decision. See 38 C.F.R. § 3.156(b) (2012). Also, the service department within the one-year appeal period of the March 2009 rating decision submitted a correction to the claimant's discharge papers showing that he received the Combat Action Ribbon, which is relevant to his claim. See 38 C.F.R. § 3.156(c) (2012). The RO readjudicated the claim in March 2010 and again in November 2010. The Veteran filed a notice of disagreement in November 2010 that did not identify the particular rating decision he was appealing. The Board construes as a timely notice of disagreement with the March 2010 rating decision. Since the March 2009 rating decision never became final, the Board will review the claim on a de novo basis and the issue is as stated on the title page. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against finding that the USS Waldron operated on the inland waterways of Vietnam at any time during the Veteran's service on that ship, that he otherwise served in or visited the Republic of Vietnam, or that he was otherwise exposed to herbicides in service; therefore, exposure to herbicides may not be presumed. 2. The preponderance of competent and credible evidence weighs against finding that type 2 diabetes mellitus was demonstrated in-service, that type 2 diabetes mellitus was compensably disabling within a year of separation from active duty, or that there is a nexus between a current diagnosis of type 2 diabetes mellitus and service. CONCLUSION OF LAW Diabetes mellitus was not incurred or aggravated while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June and October 2005, December 2009, and June 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the December 2009 letter, VA notified the appellant of how VA determines the disability rating and effective date. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The Veteran submitted a private doctor statement. The RO obtained the service treatment and personnel records as well as VA treatment records. The United States Army and Joint Services Records Research Center (JSRRC) verified the USS Waldron's activities in the official waters of Vietnam. The service department verified that the Veteran served on the USS Waldron in the official waters of Vietnam from August 24, 1967, to September 19, 1967; from October 7, 1967, to November 3, 1967; and from November 22, 1967, to December 11, 1967. The Board notes that official waters of Vietnam include more than just the inland waterways of Vietnam. In an August 2012 informal hearing presentation, the representative noted that the USS Waldron was not currently on the VA Agent Orange Ship List, which the Board notes is correct. The representative argued that in the absence of the ship's logs it cannot be determined if the ship entered the "brown waters" of the Republic of Vietnam. The representative noted that the deck logs from the ship pertaining to the period from March 1967 to August 1968 are not in the claims file. The representative argued there is a possibility that those records would identify the exact whereabouts of the USS Waldron. The representative in essence argued that VA's duty to assist includes obtaining the deck logs for the USS Waldron from August 24, 1967, to September 19, 1967; from October 7, 1967, to November 3, 1967; and from November 22, 1967, to December 11, 1967, when the ship was in the official waters of the Republic of Vietnam during the Veteran's period of service on that ship. The statements of the Veteran and his shipmates, however, do not mention that the USS Waldron operated on the inland waterways of Vietnam at anytime during the claimant's service on that ship. In particular, although the appellant in his June 2011 VA Form 9 indicated that his ship was just yards off the shores of Vietnam, he identified himself at a "blue water sailor" as opposed to a "brown water sailor." Therefore, the Veteran has not asserted that the USS Waldron was ever in the "brown waters" of Vietnam. Moreover, the appellant has not asserted that he went ashore into the Republic of Vietnam. Given the evidence presented by the Veteran and his fellow sailors, the Board finds that attempting to obtaining the deck logs from the USS Waldron would amount to no more than a fishing expedition and that there is no reasonable possibility that such development would aid in substantiating the claim. See 38 C.F.R. § 3.159(d) (2012). VA did not provide the Veteran with an examination in connection with his claim. The Board finds that an examination was not necessary to decide the merits of this claim. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for the duty to provide an examination is rather low, McLendon v. Nicholson, 20 Vet. App. 79 (2006); however, here the evidence of record is sufficient to decide the claim. As noted above, the service treatment and personnel records as well as the response from the JSRRC and the statements of the Veteran and his fellow sailors do not show that while he served in the official waters of the Republic of Vietnam, he served in the land mass of the Republic of Vietnam, to include the inland waterways of that country. They do not corroborate the assertion that he was otherwise exposed to herbicides. His service treatment records do not show that he had symptoms or a diagnosis of diabetes mellitus in service. In light of the lack of competent medical evidence showing that diabetes mellitus or signs and symptoms of that disability may be associated with active service, and in light of the lack of competent and credible evidence that the Veteran was ever in the Republic of Vietnam during his service, there is no reason for VA to provide an examination or obtain an opinion in connection with this claim. Governing Law and Regulation Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2012), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Type 2 diabetes mellitus is listed under that section as one of these such diseases. 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 VA 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) (2012). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West Supp. 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2012). "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) (2012). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a Veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit upheld VA's requirement that a Veteran must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Analysis The Veteran essentially contends that due to his service onboard the USS Waldron off the shore of the Republic of Vietnam, he was exposed to Agent Orange, thereby causing his type 2 diabetes mellitus. The JSRRC verified the USS Waldron's activities in the official waters of Vietnam. The service department verified that the Veteran served on the USS Waldron in the official waters of Vietnam from August 24, 1967, to September 19, 1967; from October 7, 1967, to November 3, 1967; and from November 22, 1967, to December 11, 1967. The statements of the Veteran and his shipmates, however, do not mention that the USS Waldron operated on the inland waterways of Vietnam at anytime during the claimant's service on that ship. In particular, although the appellant in his June 2011 VA Form 9 indicated that his ship was just yards off the shores of Vietnam, he identified himself at a "blue water sailor" as opposed to a "brown water sailor." Therefore, the Veteran has not asserted that the USS Waldron was ever in the "brown waters" of Vietnam. Moreover, the appellant has not asserted that he went ashore into the Republic of Vietnam. The Board has also considered the statement of the Veteran that he was exposed to herbicide that was present in the water around Vietnam. The Board, however, finds that such an assertion is clearly so speculative in nature as to not constitute credible evidence of herbicide exposure in service. The preponderance of competent and credible evidence weighs against finding that the USS Waldron operated on the inland waterways of Vietnam at any time during the Veteran's service on that ship, that he otherwise served in or visited the Republic of Vietnam, or that he was otherwise exposed to herbicides in service. Therefore, as actual exposure has not been shown by service department record, and there is no credible evidence otherwise establishing exposure to herbicides, the Board finds that exposure to herbicides is not conceded, and service connection cannot be granted on a presumptive basis for disability as a result of herbicide exposure. Although the Veteran has not been shown to warrant a regulatory presumption of service connection for his type 2 diabetes mellitus as a result of in-service herbicide exposure, his claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding 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). As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between (1) and (2). See Hickson, 12 Vet. App. at 253. In this case, it is undisputed that the Veteran has a diagnosis of type 2 diabetes mellitus as evidenced by the VA treatment records and the May 2005 private doctor statement. Hickson element (1) is therefore satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately. Concerning in-service disease or injury, the Board notes that Veteran's service treatment records are negative for any finding, complaints, or treatment related to type 2 diabetes mellitus. There are no indications in the record of any such problem or diagnosis before May 2005. The lack of time between service discharge and onset of disability does not in and of itself preclude establishing service connection for this disability if the competent evidence shows that the disability is related to an in-service injury, such as the Veteran's claimed in-service herbicide exposure. As noted herein above, the Board has found that there is no credible evidence that the appellant was exposed to herbicides during his time in service. Therefore, Hickson element (2) is not met. Therefore, because Hickson element (2) is not met, Hickson element (3), evidence of a nexus between (1) and (2), cannot be satisfied either. Although there is a current diagnosis of type 2 diabetes mellitus, because there is no evidence to suggest an in-service incurrence of the disease or an injury which caused it, there can be no connection between these two elements. Thus, service connection is not warranted. In his May 2006 formal claim, the Veteran listed type 2 diabetes mellitus as a disability he believed is related to active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his type 2 diabetes mellitus and his military service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his type 2 diabetes mellitus is related to service, to include as secondary to herbicide exposure. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to herbicide exposure, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs