Citation Nr: 1330185 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-15 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for loss of colon, due to colon cancer, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for kidney cancer, to include removal of kidney, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange. 4. Entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for loss of colon, kidney cancer, hypertension, and diabetes mellitus. In April 2011, the Veteran testified at a Travel Board hearing at the RO before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. At the time of the hearing, the Veteran's representative was Vietnam Veterans of America. Subsequently, in June 2012, the Disabled American Veterans submitted a VA Form 21-22, and requested that VA acknowledge the appointment of Disabled American Veterans as the Veteran's new representative. In August 2012, the undersigned granted the Veteran's request for a change in representation; thus, the Veteran's representative is as listed on the first page. The issues of entitlement to service connection for hypertension and diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served during the Vietnam era, but his service did not include duty in or visitation to the Republic of Vietnam and he is not entitled to a presumption of herbicide (Agent Orange) exposure. 2. The Veteran had colon cancer, which resulted in loss of part of his colon, many years after his active duty service, and such disability not related in any way to such service, to include Agent Orange exposure. 3. The Veteran's kidney cancer was not first diagnosed until many years after his active duty service, and is not related in any way to such service, to include Agent Orange exposure. CONCLUSIONS OF LAW 1. The Veteran's loss of part of his colon, due to colon cancer, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2012). 2. The Veteran's kidney cancer, to include removal of a kidney, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2006 and in February 2009 that fully addressed the notice elements, and both letters were sent prior to the initial RO decision in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence. The Board also notes that in both letters the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. In that regard, the RO has obtained all identified and available service and post-service treatment records for the Veteran. Further, in March 2009, the RO requested that the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (now the Joint Services Records Research Center (JSRRC)) assist in confirming the occurrence of certain events that the Veteran described as being the basis for his claim for exposure to Agent Orange in the waters in or around Vietnam. A response was received from USASCRUR in March 2009. As noted above, the Board found that VA examinations/opinions were neither necessary nor warranted. It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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, supra. A VA examination has not been provided with regard to either of the service connection claims on appeal, and etiological opinions have not been obtained. Pursuant to 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post- service treatment for a condition or other possible association with military service. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran claims that his loss of colon and kidney cancer, to include removal of a kidney, were caused by exposure to herbicides in service. He does not claim that either his colon cancer, which led to loss of part of his colon, or his kidney cancer had its onset in service or within a year of discharge or is etiologically related to his active service, other than being due to his purported exposure to Agent Orange. The claimed conditions are first shown many years after service, and there is no competent opinion of record in support of either of the claims, other than on the basis of exposure to Agent Orange. Given the foregoing, the outcome of the Veteran's claims for service connection are based on establishing in-service exposure. This issue does not require a medical opinion. Therefore, additional development is not warranted. Id.; see also 38 C.F.R. § 3.159(d). In April 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing at the RO before the undersigned Acting Veterans Law Judge. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the April 2011 hearing, the undersigned enumerated the issues on appeal. Further, information was also solicited regarding the circumstances of the Veteran's reported exposure to Agent Orange in service, as well as the nature and onset of his current disabilities, his history of post-service treatment, to include whether there were any outstanding medical records available. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claims. As such, consistent with Bryant, the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection On a VA Agent Orange examination in December 2004, the Veteran claimed he was exposed to Agent Orange because it was transported aboard the ship he served on. He was unsure if he was involved in the handling and spraying, claimed he was in recently sprayed areas, and claimed he was exposed to other herbicides or ate food/drink possibly contaminated with Agent Orange. On a PTSD questionnaire submitted in June 2005, the Veteran reported he worked in the "cargo holes" of the USS Camden (AOE2) in 1968 - 1969, which held Agent Orange stored in barrels for transport to Vietnam. He claimed that smaller cargo ships took the barrels into Cam Ranh Bay. In another part of the questionnaire, the Veteran reported that in 2004 he was informed that the areas his ship transported cargo to had been sprayed with Agent Orange. He felt he had been exposed on many occasions, reported he had warts and rashes on his hands and feet, and claimed he had been told by a doctor that this was caused by Agent Orange. In June 2005, the Veteran also submitted copies of two photographs which he indicated he took after a collision with the USS Hancock. In February 2006, after the Veteran underwent left kidney radical nephrectomy, a private pathology report revealed renal cell carcinoma. Received in July 2006 was a statement in which the Veteran's representative, on his behalf, reported that the Veteran served his entire tour in Vietnam aboard the USS Camden, a supply vessel, and that the ships flag and/or motto was "we carry everything but love", and that this would include all munitions available during the Vietnam era, to include Agent Orange and other barrels of different types of chemical munitions. The representative indicated that with the focus being on the Veteran and what was plausible, that it would not be a far reaching thought to consider that a ship such as the USS Camden ferried these agents to Southeast Asia. The representative also indicated that it was a matter of record that the most intensive use of these agents was during the time the Veteran served aboard the USS Camden. The representative basically contended that VA' s duty to assist in this matter should start with obtaining the cargo manifests. Received from the Veteran in July 2006 was a statement in which he reported he was in Vietnam from May 1968 to November 1969, and while in Vietnam his MOS (military occupational specialty) was a fireman on a ship. He claimed he was "never on shore" and was attached to the USS Camden (AOE2), which was classified as a fast combat support ship that carried gas and bombs, all the way up to the nuclear Polaris missiles. He claimed he worked in the engine room where there was high pressure steam all the time. Received from the National Personnel Record Center (NPRC) in September 2006 was a response to the RO's request for the Veteran's dates of service in Vietnam. The NPRC indicated that the furnished dates, on multiple occasions from July 1968 through November 1969, were the dates that the Veteran was onboard a ship that was in the official waters of the Republic of Vietnam. The NPRC indicated that the Veteran's personnel record did not contain enough information to make a definitive statement regarding in-country service. A second response from the NPRC, dated in February 2008, is also of record, which contains essentially identical information and conclusions. VA treatment records showed that in October 2006 the Veteran was found to have renal cell carcinoma, grade 2. On a VA examination in August 2007, the diagnoses included diabetes mellitus, type II; hypertension, essential; post carcinoma, renal cell, with surgical removal of the left kidney with residuals of abdominal wall protrusion; and post colon cancer with colon resection. In a letter dated in May 2008, a private physician, S.S., M.D. opined that the majority of the Veteran's medical problems were likely due to Agent Orange, noting that these included, but were not limited to, colon and renal carcinoma, and diabetes mellitus II. In March 2009, in support of his claim, the Veteran submitted several documents. First, he submitted an internet excerpt regarding the history of the USS Camden. This excerpt showed photos of the USS Camden and included image descriptions. The Veteran apparently circled three of the photos before he submitted the excerpt. One photo reportedly showed line handlers on board the USS Boston (CA-69) bringing across a fuel hose from the USS Camden (AOE-2) during underway replenishment operations in the Gulf of Tonkin in July 1968. Another photo reportedly showed the USS Camden (AOE-2) en route to Vietnam in the South China Sea. A third photo reportedly showed the USS Camden (AOE-2) and the USS Hollister (DD-788) alongside during Vertrep and refueling operations off the coast of South Vietnam in 1969. He also submitted a copy of a photo, on which he indicated showed "barrels going from my ship to another". He submitted another internet excerpt regarding the USS Camden, which explained that it was a fast combat support ship, combining the functions of three logistic support ships in one hull - fleet oiler (AO), ammunition ship (AE), and refrigerated storage ship (AF). For the history of the USS Camden, it was noted that for the crew's accomplishments during the first deployment to WestPac in 1968-1969, the crew was awarded the Meritorious Unit Commendation. In a statement submitted in March 2009, the Veteran reported that he served on the USS Camden from 1968 until 1969, and that they disembarked from Subic Bay to the combat zone in the Tonkin Gulf. He reported that they were in the combat zone once a month and spent up to 64 days at one time in the zone. He claimed that they carried everything needed for the 7th fleet and combat troops on the ground, and that this "took in ordnance of general stores and anything else that was needed to get the job completed". He claimed that his ship was close enough at least three times to see people on the beach. He also claimed that he saw hundreds of barrels of Agent Orange aboard his ship, and that these were taken ashore. He also claimed he had been exposed to black oil, asbestos, JPS, and AU gas. He reported that spent all of his service time aboard the USS Camden and in Vietnam. He reported he had lost 16 inches of his colon and his left kidney, due to cancer. He also reported having type II diabetes and hypertension, and claimed that his doctors had advised him that his medical problems were due to Agent Orange exposure. Received in March 2009 was a response, to the RO's request, from USASCRUR, noting that they had reviewed the 1968 command history for the USS Camden (AOE-2), and that the history revealed that the USS Camden departed Naval Station (NS) Long Beach, California for a Western Pacific (WESTPAC) deployment on May 28, 1968. After a stop for pre-deployment load out of stores at Seattle, Washington, the USS Camden arrived at Subic Bay, Republic of the Philippines on June 26, 1968. The USS Camden then conducted line swing periods in the combat zone of the Republic of Vietnam (RVN) which consisted of the Underway/Vertical Replenishment (UNREP/VERTREP) of fuel and stores to Seventh Fleet units operating on Yankee Station in the northern Gulf of Tonkin and Naval Gunfire Support (NGFS), Sea Dragon and Market Time units operation in the coastal waters of the RVN. It was noted that the USS Camden conducted multiple line swing periods from July 1968 through February 1969, and returned to NS Long Beach, California on February 2, 1969. It was also noted that, to date, the USASCRUR had been unable to locate documentation which verified that major U.S. Navy ships transported, stored, or used herbicides, including Agent Orange, in Vietnam. Further, the USASCRUR indicated that according to the National Archives and Records Administration (NARA), and the Naval Historical Center, command histories, deck logs, and muster rolls/personnel diaries are the only administrative records produced by commissioned US Navy ships during the Vietnam war that are permanently retained, and that these records did not normally annotate individuals arriving or going ashore on a routine basis. Also, it was noted that deck logs did not normally list the destinations of these aircraft and vessels. In January 2010, the Veteran submitted an excerpt from the internet, apparently from someone who was on the USS Camden, and reported that this ship carried everything, including groceries, ammunition, fuel, and pallets of 50-gallon drums stacked to the roof in the cargo holds, and that the ship's helicopter would airlift them over to the carriers that were alongside the ship. This person never asked what was in the barrels, but did remember loading them on board in Subic Bay and that with them, like all things loaded on the ship, was a manifest of everything they loaded, and that the manifest stayed with the ship. This person claimed that there may be records of those manifests somewhere in the archives. Also submitted in January 2010 by the Veteran was an excerpt from the internet regarding the definition of Vietnam service and blue water Navy veterans. Therein, the conclusion was made by "the committee" that members of the Blue Water Navy should not be excluded from the set of Vietnam-era veterans with presumed herbicide exposure. In January 2010, he submitted a copy of a page from the internet indicating that there was "no DANFS history available for the USS Camden (AOE-2) at NavSource". Finally, in January 2010, he submitted an excerpt from the March 2002 U.S.-Vietnam Scientific Conference on Human Health and Environmental Effects of Agent Orange/Dioxins. In a notice of disagreement submitted in January 2010, the Veteran claimed that they loaded Agent Orange onboard their ship at Subic Bay and took it on to Vietnam. He indicated he was not claiming that all cargo ships were exposed, but he bet that all or most of the cargo ships were exposed. He claimed that they made "many trips taking that stuff" into the Tonkin Gulf to be offloaded to smaller ships, and then onto Vietnam. He claimed that there were leaks in some of the barrels, which they had to clean up after off loadings, and that he knew he was exposed to it, but could not find his ship's manifests. He claimed he spent 17 months and 2 days in and around Vietnam. He indicated that there was no D.A.N.F.S. history for the USS Camden (AOE-2), and claimed he was blocked from the USS Camden website when he started asking about Agent Orange. In a substantive appeal (VA Form 9) received in March 2010, the Veteran reported that he vividly recalled carrying Agent Orange onboard the USS Camden, and also loaded it from their ship to smaller ships so they could carry it into port. In April 2011, the Veteran testified that he was stationed aboard the USS Camden, and that they delivered Agent Orange to smaller ships, and that they also carried JP5 half gas, black oil, and even barrels for the USS New Jersey. He testified he remembered the Agent Orange barrels onboard the USS Camden because they used to walk on the upper decks and that there was a lot of 55 gallon barrels. He claimed that if there was a leak, the lower guys would have to go up and clean it. He claimed he had no idea what it was because it was all over the deck and they would take rages to wipe it up. He testified he had submitted pictures showing barrels on the USS Camden. He testified he never did "boots on the ground", but was reportedly around "that stuff" just as much as anybody on the ground was. In response to the question of whether the barrels onboard his ship had an orange stripe around them, he indicated he was not going to say for sure because he never paid much attention to them, but there were a lot of barrels on that ship. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain specific diseases shall be service connected if manifest to a degree of 10 percent or more at any time after service. U.S.C.A. § 1116(a), (b); 38 C.F.R. § 3.307(a)(6)(ii). A veteran, who during active 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 the contrary. U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "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. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). In Haas v. Peake, 525 F.3d 1168, 1193, 1197 (2008) the United States Court of Appeals for the Federal Circuit (Federal Circuit) upheld VA's interpretation of this regulation as requiring that a veteran must have actually been present on the landmass or inland waters 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. See VAOPGCPREC 27-97 (July 23, 1997); 66 Fed. Reg. 2376, 23,166 (January 22, 2001). Service on a deep-water naval vessel in waters off the shore of Vietnam does not constitute service in the Republic of Vietnam. See Haas at 1193 - 1197; VAOPGCPREC 27-97. What constitutes "inland waterways" is not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Id. The Manual does note an exception regarding veterans who served as a coxswain. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). 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 etiologies of colon cancer and kidney cancer fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, supra. Finally, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran seeks to establish service connection for loss of part of his colon (due to colon cancer) and kidney cancer, to include removal of kidney, primarily due to his alleged exposure to herbicides while assigned to the USS Camden (AOE-2), in the Tonkin Gulf, during the Vietnam war. He essentially contends that the USS Camden was a fast combat support ship and transported various supplies to Vietnam, including barrels of herbicides (Agent Orange) from Subic Bay to Vietnam. He contends he was directly exposed to the herbicides contained in these barrels, to include because he was near these barrels and had to help clean up leaks from these barrels, and he also reportedly helped move the barrels from his ship to another smaller vessel. He has also vaguely contended that he was exposed to Agent Orange because his ship was close to the shore of Vietnam, and because he was exposed to smaller ships that were near where Agent Orange was sprayed. The record shows that the Veteran has been diagnosed with and treated for colon cancer with loss of a section of the colon as well as kidney cancer with removal of one kidney; thus, he has current disabilities. Hickson, supra. Upon consideration of the evidence of record, to include the Veteran's service records, his numerous submissions regarding the USS Camden, the NPRC's responses, and the USASCRUR's response, the Board concludes that the presumption of herbicide exposure based on service in Vietnam does not apply in this case. As an initial matter, the Veteran has stated that he did not set foot in Vietnam, and the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran served or stepped foot in country in Vietnam. Rather, the Veteran has asserted that he was exposed to Agent Orange that was in barrels that were transported on his ship. The Veteran has submitted multiple excerpts/documents regarding the USS Camden and its mission in the waters offshore of Vietnam, as well as photos of the USS Camden. However, none of this evidence shows that there were barrels of Agent Orange transported or stored onboard. The evidence shows that the Veteran served aboard the USS Camden (AOE-2) off the coast of Vietnam, in and near the Tonkin Gulf, and that the USS Camden was a combat supply ship. However, the Veteran's assertions that he worked near barrels that contained Agent Orange are neither competent nor credible. He has not asserted that these barrels were labeled or otherwise identified as containing Agent Orange, nor is he shown to have expertise which would allow him to conclude that these barrels contained Agent Orange. While barrels may have been stored and transported aboard the USS Camden, the Veteran has not presented, nor have requests to the NPRC and USASCRUR showed, that these barrels contained Agent Orange, or any other herbicide. In this regard, the Board finds that the USASCRUR's finding, that it was unable to locate documentation which verified that major U.S. Navy ships transported, stored, or used herbicides, including Agent Orange, in Vietnam, is highly probative evidence against the claims. See also VA Manual M21-1MR, Part IV, subpart ii, 2.C.10.o. Furthermore, the U.S.S. Camden is not listed among VA's list of Navy and Coast Guard Ships associated with service in Vietnam and exposure to herbicide agents. See http://vaww.index.va.gov/search/va/va_search.jsp?SQ=vt_vbabl21all_int&QT= inland. Finally, to the extent that he received the Vietnam Service Medal, the criteria for receipt of this award did not require duty or visitation in the Republic of Vietnam. See Department of Defense Manual of Military Decorations & Awards, DoD 1348.33-M, C6.5 at 48 (September 2006). The Board therefore concludes the Veteran was not exposed to herbicides. To the extent that the Veteran has testified that his ship was at Cam Ranh Bay for a short period of time, this is not shown. Furthermore, service aboard a ship that merely anchored in an open deep-water harbor, such as Cam Ranh Bay, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Accordingly, the preponderance of evidence is clearly against a finding that the Veteran set foot in or served in the inland waterways of Vietnam, or that he was exposed to herbicides during service. Therefore, the Board finds that the Veteran is not presumed to have been exposed to herbicides, and the presumptive provisions of 38 C.F.R. § 3.309(e) are not applicable, and also finds that the preponderance evidence does not show that the Veteran was exposed to Agent Orange during service. Notwithstanding the foregoing, the United States Court of Appeals for 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. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the Veteran has submitted a letter from Dr. S in which he basically concludes that the Veteran's colon and renal carcinoma are likely due to Agent Orange. However, as the Veteran's exposure to Agent Orange has not been established, this medical opinion is afforded no probative value. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Therefore, service connection is not warranted on this basis. Notwithstanding the foregoing, service connection may still be established with proof of actual direct causation. 38 C.F.R. § 3.303. To that end, the Board has considered whether there is a direct link between the Veteran's colon cancer and loss of part of the colon and/or kidney cancer with kidney removal diabetes mellitus and active service. In this case, the Veteran has not asserted that his colon cancer and/or kidney cancer are etiologically related to his active service, other than being due to his purported exposure to herbicide agents. He has also not alleged that either of these cancers had its onset within one year of his service discharge. He has testified, and the record first notes, that he was diagnosed with colon cancer and kidney cancer in 2006. This is 37 years after his separation from service. Service treatment records do not show that his colon cancer or his kidney cancer had an onset in service. There is no competent opinion in support of either of the claims on a basis other than exposure to Agent Orange. Thus, the Board concludes that service connection for loss of part of the colon, due to colon cancer, and kidney cancer, to include removal of a kidney, under theories of direct (38 C.F.R. § 3.303), presumptive (38 C.F.R. § 3.309(a)), or nexus (38 C.F.R. § 3.303(d)) is not warranted. Consequently, the benefit-of-the-doubt rule does not apply, and the claims for service connection for loss of colon and kidney cancer, to include removal of kidney, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for loss of colon, due to colon cancer, to include as due to exposure to Agent Orange, is denied. Service connection for kidney cancer, to include removal of kidney, to include as due to exposure to Agent Orange, is denied. REMAND The Veteran initially contended that his diabetes mellitus and hypertension were related to his reported exposure to Agent Orange (barrels) during his service aboard the USS Camden, during the Vietnam war. He has not contended that his hypertension or his diabetes mellitus had an onset in or was otherwise related to his active service. In May 2013, however, the Veteran's representative raised an additional theory of entitlement to service connection, claiming that his diabetes mellitus and hypertension were related to his service-connected posttraumatic stress disorder (PTSD). See 38 C.F.R. § 3.310 (2013). As established above, the Veteran is not entitled to the presumption of exposure to Agent Orange, and has not otherwise shown exposure to Agent Orange. Thus, while the evidence currently of record may allow for some theories of entitlement to service connection for hypertension and diabetes mellitus to be addressed at this time, the claim is best adjudicated at one time, rather than in a piecemeal fashion based on different theories of entitlement, and the Court has admonished VA regarding such piecemeal litigation. See Smith v. Gober, supra; see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As noted above, the claims for service connection for hypertension and diabetes mellitus require further development before the Board may address these claims. The Board notes that in the "Appellant's Brief" submitted in May 2013, the Veteran's representative first raised the theory that the Veteran's hypertension and diabetes mellitus may be related to his service-connected PTSD. Therein, the representative noted that the Veteran had been service-connected for PTSD with an integral sleep disorder and that the Veteran had testified he had difficulty with sleeping. The representative also cited to a report in the IDEA Fitness Journal titled "Sleep Deprivation: Cognitive Function and Health Consequences", and claimed that chronic sleep impairment had been associated with the development of insulin resistance, hypertension, atherosclerosis, and abnormal cholesterol, all of which predisposed the individual to the development of cardiovascular disease. The record reflects that the Veteran has current disabilities of hypertension and diabetes mellitus. Private treatment records show that in January 1989, he was noted to have a history of borderline hypertension, and in April 1989, it was noted that he had a new onset of diabetes mellitus. Further, VA treatment records showed on an active problem list that the Veteran's hypertension was being treated as of August 2003 and diabetes mellitus was being treated as of November 2003, and that he continued to receive treatment for both disabilities thereafter. 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence "indicates" that the Veteran's disability "may" be associated with his service is a low threshold. Id. Thus, considering the record on appeal, including the representative's citation to a medical journal to support the secondary service connection claims, the Board finds that a VA examination/opinion is in order to address whether the Veteran's hypertension and/or diabetes mellitus may be related to the service-connected PTSD. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, supra. Additionally, the Veteran should be provided any requisite notice and/or assistance with regard to the secondary service connection claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with all notice and assistance requirements set forth in the VCAA, and subsequent interpretive authority, regarding the newly raised secondary service connection claims for hypertension and diabetes mellitus. Copies of any correspondence forwarded to the Veteran should be included in the claims folder for review, 2. Schedule the Veteran for appropriate VA examinations to determine whether his hypertension and/or diabetes mellitus were caused or aggravated by his service-connected PTSD. Request that the examiner(s) review the claims folder and specifically note that such review has been accomplished. a) The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's hypertension is causally related to, or aggravated by, PTSD. b) The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's diabetes mellitus is causally related to, or aggravated by, PTSD. c) The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d) "Aggravation" means a chronic or permanent worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. e) The examiner(s) must explain the complete rationale for any opinions given. If any opinion requested above cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner(s) should clearly and specifically so specify, along with an explanation as to why that is so. 3. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, and be given an opportunity to respond to the SSOC. Thereafter, the case should be returned to the Board for appellate review The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs