Citation Nr: 1327095 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 08-31 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for diabetes mellitus type I, claimed as due to herbicide exposure. 2. Entitlement to service connection for Parkinson's disease, claimed as due to herbicide exposure. 3. Entitlement to service connection for essential tremors, claimed as due to herbicide exposure. 4. Entitlement to service connection for a pulmonary disorder, including chronic obstructive pulmonary disease, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to January 1973. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in Washington, D.C. in October 2011 before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In December 2011, the Board denied the Veteran's claims for service connection for diabetes mellitus, Parkinson's disease, essential tremors, and a pulmonary disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Memorandum Decision, the Court vacated the Board's December 2011 decision and remanded the case for compliance with the terms of the Memorandum Decision. In March 2013, the Board remanded the matters for additional development. Finally, the Board notes that in June 2013, the Veteran submitted additional evidence in the form of lay evidence, without a waiver of RO consideration. However, the lay evidence is cumulative of other lay statements relating that New Zealand supplied Agent Orange during the Vietnam War to Subic Bay. For this reason, the additional evidence need not be referred to the RO for initial consideration under 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The Veteran does not allege, nor do the service records show that he served in Vietnam, and the evidence does not establish that he was exposed to herbicides, to include Agent Orange, during service. 2. The Veteran's diabetes mellitus, Parkinson's disease, essential tremors and pulmonary disorder, including chronic obstructive pulmonary disease, were not present in service or until many years after service, and the evidence does not establish a causal connection between the Veteran's diabetes mellitus, Parkinson's disease, essential tremors and pulmonary disorder and military service or any incident therein, to include any exposure to herbicide agents. CONCLUSIONS OF LAW 1. Type I diabetes mellitus was not incurred in or aggravated by active duty, may not be so presumed, nor may the Veteran's diabetes be presumed to have been incurred as a result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113. 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Parkinson's disease was not incurred in or aggravated by active duty, may not be so presumed, nor may the Veteran's Parkinson's disease be presumed to have been incurred as a result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113. 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. Essential tremors were not incurred in or aggravated by active duty, may not be so presumed, nor may the Veteran's essential tremors be presumed to have been incurred as a result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113. 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. Chronic obstructive pulmonary disease was not incurred in or aggravated by active duty, may not be so presumed, nor may the Veteran's chronic obstructive pulmonary disease or any current pulmonary disorder be presumed to have been incurred as a result of herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113. 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication. September and October 2005 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter also informed him of degree of disability and effective date criteria. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, and post-service treatment records. The Board acknowledges that the Veteran was not provided with examinations regarding his claims. However, the Board finds that VA's duty to provide the Veteran with an examination for these claims has not been triggered. Specifically, the Veteran alleges that his disabilities are due to herbicide exposure, and there is no indication that the claimed disabilities may be related to an in-service event or a disease manifested in accordance with presumptive service connection regulations, nor is there any competent probative evidence that any claimed disability may be related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits); see also 38 C.F.R. § 3.159(c)(4)(i). The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ asked specific questions directed at identifying whether there was evidence that would help substantiate the Veteran's claim. In addition, the Veteran presented his theory of entitlement to the benefits sought. 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 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 duties set forth in 38 C.F.R. § 3.103(c)(2) have been met. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. B. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 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 Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court 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, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. 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 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). If a veteran 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: AL amyloidosis, type II diabetes mellitus, chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, 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). 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). In Haas v. Peake, 525 F.3d 1168, 1187-90 (Fed. Cir. 2008), the Federal Circuit confirmed 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 is not entitled to a presumption of service connection for disabilities claimed as due to exposure to herbicides, including Agent Orange. Haas, 525 F.3d at 1193-94; see also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); 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). With regard to inland waterways, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-90; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.k. Service aboard a ship that 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. Id. Even if a veteran is found not to be entitled to a regulatory presumption of service connection, the 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). At the outset, the Board notes that the evidence shows the Veteran has been diagnosed with diabetes mellitus type I, Parkinson's disease, essential tremors, and chronic obstructive pulmonary disorder (COPD). Accordingly, the first element of service connection is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). In this case, the Veteran asserts presumptive service connection under 38 C.F.R. § 3.309(e) as disorders caused by exposure to herbicides. Specifically, he contends that while serving aboard the USS Enterprise in the waters off the coast of Vietnam, he was exposed to herbicides, and from containers of the defoliant stored on piers which leaked into Subic Bay, Republic of the Philippines, where he sometimes swam for recreational activity; he does not allege that he served in the Republic of Vietnam or that he stepped foot in the Republic of Vietnam. The Veteran's DD Form 214 shows his decorations and awards include the National Defense Service Medal; there are no decorations denoting service in Vietnam. Personnel records show that the Veteran was assigned to the USS Enterprise from October 28, 1969 to February 12, 1972. Personnel records, including deck logs of the USS Enterprise, further show that the ship was in-port at Subic Bay for the following dates: July 7, 1971 to July 11, 1971; August 2, 1971 to August 13, 1971; September 6, 1971 to September 10, 1971; October 2, 1971 to October 8, 1971; January 12, 1972 to January 16, 1972; and January 26, 1972 to January 27, 1972. Initially, the Board notes that of the claimed disabilities for which service connection is sought, only Parkinson's disease is among the diseases enumerated as subject to presumptive service connection under 38 C.F.R. § 3.309(e) as associated with exposure to herbicides during service. See 38 C.F.R. §§ 3.307, 3.309. The Secretary of Veterans Affairs has determined that there is no presumptive 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 Diseases not Associated with Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341-02 (Dep't of Vet. Affairs Jan. 4, 1994) (notice); see also Disease not Associated with Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442-01 (Dep't of Vet. Affairs Aug. 8, 1996) (notice);Diseases not Associated with Exposure to Certain Herbicide Agents, 64 Fed. Reg. 59232-02 (Dep't of Vet. Affairs Nov. 2, 1999) (notice); Health Effects not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32540-03 (Dep't of Vet. Affairs June 8, 2010) (notice); Diseases Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 53202-01 (Dep't of Vet. Affairs Aug. 31, 2010) (final rule). Thus, to the extent the Veteran seeks service connection for diabetes mellitus type I, essential tremors, and a pulmonary disorder under the presumptive provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e), based on herbicide exposure, such claims must be denied. To the extent the Veteran contends that he had service in the waters off the shore of Vietnam and in close proximity to the Vietnam coast, and was thereby exposed to Agent Orange, the Board finds all of his service was on a deep-water naval vessel. Service aboard a ship, such as the USS Enterprise, does not constitute inland waterway service or qualify as docking to the shore. See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.k. The USS Enterprise is not recognized as a vessel that conducted "brown water" operations in Vietnam, and given the nature of its mission, its size and draft, and the absence of any indication in the ship's deck logs that it conducted brown water operations, there is no reason to believe that the USS Enterprise would have operated in the rivers, canals, estuaries, or delta areas making up the inland waterways of Vietnam. Accordingly, since the Veteran has never claimed and the record does not show that he actually stepped foot in the Republic of Vietnam, and his alleged exposure while serving on the USS Enterprise during his deep-water naval service, the Board finds that his claims for service connection are not within the purview of 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e) based on herbicide exposure in Vietnam. As noted above, the Veteran also alleges that he was exposed to herbicides while serving aboard the USS Enterprise from containers of the defoliant stored on piers which leaked into Subic Bay. The VA Adjudication Procedure Manual, Part IV, Subpart ii, Chapter 2, Section C.10.o, sets forth procedures for the verification of herbicides in areas outside Vietnam. The manual provides two locations where VA is to obtain information for non-Vietnam herbicide exposure: VA Compensation and Pension Service, and the U.S. Army and Joint Services Records Research Center (JSRRC). In July 2010, JSRRC (via the Defense Personnel Records Information Retrieval System (DPRIS)) found it was unable to locate documentation verifying "major U.S. Navy ships" transported, stored or used herbicides, including Agent Orange, in Vietnam. The Court, in its July 2012 Memorandum Decision, noted that such reveals an inaccurate request for information from JSRRC as the request did not concern the transportation, storage and use of herbicides in Subic Bay (emphasis added). Accordingly, in May 2013 correspondence, JSRRC reported that after reviewing the 1971 command history of the USS Enterprise (which included review of January 1972), and the command history of the Subic Bay Naval Base, there was no evidence that Agent Orange or other tactical herbicides were used, tested, disposed of or stored in Subic Bay during 1971. Lastly, research of additional available historical information does not document the spraying, testing, storage or usage of Agent Orange or other tactical herbicides in the Republic of the Philippines during 1971 to 1972. In addition, in May 2013, VA Compensation and Pension Service noted that the Department of Defense has provided a listing of locations outside Vietnam and the Korean DMZ where tactical herbicides, such as Agent Orange, were used, tested or stored. It was further noted that the list provided by the Department of Defense does not show any use, testing, or storage of tactical herbicides at Subic Bay or anywhere else on the Philippine Islands. Tactical herbicides were developed for use in the jungles of Vietnam, not for general use in the Philippines. Therefore, there was insufficient evidence to support the Veteran's claim. The Veteran has submitted an Internet excerpt indicating that New Zealand sent Agent Orange chemicals to Subic Bay in the 1960s. The Veteran also testified at the October 2011 Central Office hearing that he saw Agent Orange barrels stored on the pier at Subic Bay, and that the barrels leaked into the water where he swam and did recreational activities. In addition, at the October 2011 hearing, the Veteran' representative alluded to some documents he received from his congressman dealing with herbicide usage in the Philippines. These documents include a September 1966 Report of Staff Visit of the Philippines, Taiwan, and Okinawa. The report indicates that an Air Force representative visited several named locations in August 1966, including Subic Bay, to participate in a joint Navy-Air Force Pest Control Conference and to review base programs and assist individual bases with the establishment of safer and more effective programs. The items addressed included "herbicides." The report further provides that herbicide literature was handed out at the conference and samples were mailed. The recommendations addressed, inter alia, herbicide spraying. In May 2013 correspondence from an archivist of the Air Force Historical Research Agency, it was noted that the usage of the term "herbicides" in the September 1966 Report of Staff Visit did not mean tactical herbicides such as Agent Orange. The report was prepared by a Deputy Chief of Staff for Civil Engineering for Pacific Air Forces, and they had nothing to do with tactical herbicides. Instead, they dealt with normal off-the-shelf commercial herbicides, which is what is referenced by the use of the term "herbicides" in the September 1966 report. While the archivist stated that he had no reason to believe the document was not authentic, it was his opinion that the September 1966 report concerning herbicides had nothing to do with Agent Orange, its use, dissemination, or equipment. In light of the above, the Board also finds that the evidence is against his claims for service connection based on exposure to herbicides while serving aboard the USS Enterprise from containers of the defoliant stored on piers which leaked into Subic Bay. Significantly, the Board finds no probative value in the Internet excerpt the Veteran submitted indicating that New Zealand sent Agent Orange chemicals to Subic Bay in the 1960s. As noted above, personnel records, including deck logs of the USS Enterprise, do not show the ship was in-port at Subic Bay in the 1960s while the Veteran was assigned to the ship. For the limited purpose of this appeal, even conceding that New Zealand did send Agent Orange chemicals to Subic Bay in the 1960s, the article only shows that chemicals were sent to Subic Bay years before the USS Enterprise was in-port. The article does not state, or otherwise suggest, that the chemicals were still at Subic Bay at the time of the Veteran's presence (i.e., in the 1970s). Hence, the article has no probative value to the Veteran's claim. In regards to the September 1966 Report of Staff Visit of the Philippines, Taiwan, and Okinawa, the Board finds this report has little, if any, probative value to support the Veteran's claim. While the report does address herbicide usage in the Philippines, there is no evidence that the herbicides referenced were tactical herbicides. Notably, the specific report regarding "herbicides" referenced such items as pesticides, weed killers, and insecticides. Moreover, an archivist of the Air Force Historical Research Agency opined that the report had nothing to do with Agent Orange, and instead referenced commercial herbicides. Furthermore, JSRRC and VA Compensation and Pension Service in May 2013 correspondence found that there was no evidence that Agent Orange or other tactical herbicides were used, tested, disposed of or stored in Subic Bay during 1971 to 1972. The Board finds that the Veteran is both competent and credible to report on what he can see and feel such as seeing containers on the pier at Subic Bay and seeing the containers leak. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as to actual Agent Orange or other herbicide exposure, the Board finds that neither the Veteran, his wife, or his representative is competent to say that the containers held Agent Orange because such a finding requires special training that they do not have, or a recollection too precise to be credible. Id. Moreover, none of the other lay persons are competent to say what the Veteran saw during his service because they were not present at that time. Additionally, the Board finds more competent and credible the negative opinions provided by JSRRC and VA Compensation and Pension Service in May 2013 regarding tactical herbicide usage, testing, disposal of or storage in Subic Bay during 1971 to 1972 than any lay claims by the Veteran and others found in the record regarding having such exposure. The Veteran has also submitted a Board decision issued in a different Veteran's case in an effort to support his claim and to show that Agent Orange was present at Subic Bay. Prior Board decisions are binding only on the specific case decided, and the decision cited has no precedential value in the instant case. 38 C.F.R. § 20.1303. [The Board notes incidentally that the instant case is also distinguishable from the prior cited Board decision. In the prior case, there was no certification (per VA Adjudication Procedure Manual guidelines) of herbicide use, testing or storage at Subic Bay. Significantly, that decision also generally found that the September 1966 Report of Staff Visit reference to "herbicides" was sufficient, without distinguishing between tactical herbicides and commercial herbicides. This opinion does make such a distinction.] Therefore, the Board finds that his claims for service connection are not within the purview of 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e) based on herbicide exposure in Subic Bay, Republic of the Philippines. Notwithstanding the foregoing presumption provisions, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Service treatment records do not show evidence of diabetes, Parkinson's disease, essential tremors, or COPD in service. The evidence shows diagnoses for diabetes as early as 1993, essential tremors in 2003, and Parkinson's disease and COPD in 2004. As the evidence shows he has been diagnosed with these disabilities at least 18 years after the Veteran's separation from service, and there is no evidence or allegation the diseases became manifest to a compensable degree within the first year after discharge from service, presumptive service connection for a chronic disability under 38 C.F.R. § 3.303(a) is not available. The Veteran has not asserted, nor does the evidence show, that he had continuous symptoms since his separation from service, so consideration of service connection as a chronic disorder under 38 C.F.R. § 3.303(b) is also not applicable. Moreover, no medical professional has ever suggested that the Veteran's disabilities were related to his military service, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such medical evidence or opinion. In short, there is no competent evidence to support the claim. To the extent the Veteran relates his disabilities to his service (to include herbicide exposure), the Board finds that such is not competent evidence. The matter of a nexus between a current disability such as diabetes, Parkinson's disease, essential tremors or a pulmonary disorder and service is (in the absence of continuity of symptomatology which the Veteran is not alleging) a question that is beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis. Hickson v. West, 12 Vet. App. 247, 253 (1999). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for diabetes mellitus type I is denied. Service connection for Parkinson's disease is denied. Service connection for essential tremors is denied. Service connection for a pulmonary disorder, including COPD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs