Citation Nr: 1330754 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-08 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to August 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal except for the August 2013 Appellate Brief. A review of the Veterans Benefits Management System (VBMS) reveals no pertinent documents. FINDINGS OF FACT 1. The Veteran did not have service in-country in Vietnam from January 9, 1962 to May 7, 1975, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. 2. Diabetes mellitus was not manifested during service or within one year thereafter; diabetes mellitus is not related to service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by the Veteran's service and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the present case, the letter sent to the Veteran in November 2007 fully addressed all notice elements required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. Here, the record includes the Veteran's service treatment records, service personnel records, responses from the National Personnel Records Center (NPRC), VA outpatient treatment records, and lay statements of the Veteran. The Board notes that the Veteran was not afforded a VA examination in connection with this claim. The Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) , 38 C.F.R. § 3.159(c)(4)(i) . Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted in this case. There is no evidence establishing that a disease or injury (e.g., diabetes mellitus) occurred in service or that such had manifest during the applicable presumptive period nor is there any indication that the Veteran's disability is associated with an event in service. Thus, the Board finds that referral of this claim for an examination to obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis. There is no evidence of an event, injury, or disease occurred in service or that otherwise indicates possible relationships to service. Since "no reasonable possibility exists that such assistance would aid in substantiating the claims," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA. The Veteran was an active participant in the claims process by providing evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). The Veteran and his representative have not identified any other outstanding evidence which has yet to be obtained. Accordingly, the Board finds that all necessary development has been accomplished and no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria The Veteran seeks service connection for diabetes mellitus and argues that his current disability is related to exposure to herbicides during service. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the benefit sought on appeal will be denied. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) . Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as diabetes mellitus. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112 ; 38 C.F.R. §§ 3.307 , 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)"). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or 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) ; See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); 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). In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. 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 and is not sufficient to establish presumptive exposure to herbicides, unless the Veteran served as a coxswain aboard ship and reports going ashore during anchorage. See Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii.1.H.28.h. When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). To be service connected under this presumption, the diabetes mellitus, type II, shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Presumptive Service Connection In the present case, the Veteran has a post service diagnosis of diabetes mellitus, type II, one of the diseases presumed to be linked to herbicides. As such, the relevant question is whether he had actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. The Veteran avers that he served in-country in Vietnam as he served aboard the U.S.S. Taylor, which he claims anchored at Da Nang harbor, in a location that should entitle him to the presumption of service connection for herbicide exposure. The Veteran specifically contends that the ship was not docked in a deep sea harbor, as it was docked at the pier, near the shore of the country. The Veteran's October 2007 claim includes copies of deck logs from December 1964 to May 1966. An April 22, 1966 deck log entry shows that the U.S.S. Taylor was secured and stood out of Da Nang Bay. An April 23, 1966 entry shows that the U.S.S. Taylor had been maneuvering, then headed toward Da Nang Harbor. The ship maneuvered in various courses and proceeded to anchor in Da Nang harbor at 2:17 A.M. The entry also showed that at 3:45 AM (approximately an hour and a half later), the ship went underway from Da Nang Harbor maneuvering on various courses to clear the harbor. There was no mention of any personnel leaving the ship during the hour and a half that the ship was anchored at the harbor. The deck logs show that the U.S.S. Taylor did not operate in the inland waterways or "brown water" of Vietnam. Rather, the evidence shows the ship was anchored in the "blue water" of Vietnam. A response from the NPRC indicated that they were unable to determine whether or not the Veteran served in Vietnam. The response confirmed that he served aboard the U.S.S. Taylor and noted that the ship was in the official waters of Vietnam from February 8, 1965 to February 26, 1965; from March 20, 1965 to April 29, 1965; from March 4, 1966 to March 15, 1966; from April 22, 1966 to April 29, 1966. However, there was no conclusive proof of in-country service. The Veteran's service personnel records reveal that he was aboard the U.S.S. Taylor from December 21, 1965 to August 3, 1966. A VA formal finding, issued in May 2008, confirmed the above facts and discussed the efforts involved in obtaining the information necessary to corroborate Agent Orange exposure in Vietnam. The formal finding determined that after following proper developmental protocol, the information required to corroborate in-country Vietnam service was not sufficient. The service records document that the U.S.S. Taylor had not docked or transited inland waterways. The Veteran does not contend that he went ashore to Vietnam or stepped foot in the country. He only makes the argument that the U.S.S. Taylor was anchored and "the ground under the ship is close enough because navy ship doesn't have anchor chain that will reach to the bottom of the sea unless the ground under the ship is close . . . ." In any event, service personnel records and the Veteran's statements indicate that the Veteran's military occupational specialty was a machinist mate. He testified in September 2006 before a Board member with respect to a different claim that his duties primarily took place down in the engine room as he rarely left it. Thus, the Board finds that the Veteran's duties are not consistent with personnel who would typically need to travel ashore in these circumstances. The weight of the evidence is against a finding that the Veteran set foot in Vietnam or that the U.S.S. Taylor served on an inland waterway during the time the Veteran was stationed aboard it. The Board recognizes that the Veteran is competent to describe things of which he has personal knowledge, such as the location of the ship he was aboard. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (recognizing that lay testimony is "competent" if it discusses matters that the witness has actually observed or sensed and is within his "personal knowledge"). The Board, however, does not find the Veteran's allegations of the ship's actual location to be credible. As aforementioned, the deck logs actually describe the positioning of the U.S.S. Taylor and describe the anchoring detail at Da Nang harbor. There is nothing in the ship's history of record that supports the statement that the ship was docked at the Da Nang pier, nor is there any documentation of the ship transiting inland waterways. The Board finds the service personnel records and deck logs to be particularly probative as to the location of the ship. See 38 C.F.R. § 3.203(a) (explaining that is issued by service department requires no verification and may be accepted as evidence of service). The probative evidence shows that the U.S.S. Taylor was not transiting in the inland waterways of Vietnam as it was anchored in deep sea. Furthermore, the Veterans Benefits Administration's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents has been checked by the Board (http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm). The U.S.S. Taylor is not a ship associated with herbicide exposure. In sum, the record shows that the Veteran's sole exposure to Vietnam was in the blue waters offshore of Vietnam during 1966. As noted above, the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas, 525 F.3d at 1193-95. Accordingly, despite the Veteran's contentions regarding his alleged exposure to herbicide agents in service, he may not be presumed to have been exposed to herbicide agents as a result of his service, and is therefore not entitled to service connection for diabetes mellitus on a presumptive basis. Direct Service Connection When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection. In the present case, the Veteran has a remote diagnosis of diabetes mellitus, which is an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. The Veteran has not contended and the record does not establish that the Veteran served in combat and the provisions of 38 U.S.C.A. § 1154 (b) are not for application in this case. The June 1962 enlistment report of medical history included a negative response of history of sugar or albumin in the urine. Upon examination, the physician indicated that the Veteran's endocrine system was normal. Service treatment records show no complaints, treatment or diagnoses related to diabetes. However, the Board notes that the Veteran had numerous urinalysis testing conducted during service, beginning around March 1965, in connection with complaints of pain in the pubic region or over his bladder. Service progress notes show results indicating trace amounts or negative albumin. Corresponding laboratory notes indicate that the urinalysis was conducted with respect to the Veteran's chronic cystitis (and not with respect to diabetes). The March and April 1965 laboratory notes indicate the urinalysis was negative for sugar/albumin. The August 1966 separation examination indicated a normal endocrine system and no defects or diagnoses were noted. While the Veteran did not have the requisite service in Vietnam to entitle him to a presumption of exposure to herbicides under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), the Veteran could still be entitled to service connection due to herbicide exposure on a direct basis. To prove service connection on a direct basis for a disease due to herbicide exposure the Veteran needs to show (1) a current disability (2) actual proof of in-service herbicide exposure and (3) a nexus linking the current disability to the exposure to herbicides. In this case, although the Veteran has asserted he was exposed to herbicides, he has provided no evidence of actual exposure to herbicides. As explained above, the Veteran is not entitled to a presumption of exposure and he has not established a credible factual foundation for establishing exposure to Agent Orange at any time. Accordingly, there is no evidence of complaints, treatment, a diagnosis, or exposure to herbicides during service. Furthermore, the Veteran has not contended that his diabetes mellitus was diagnosed during service and the evidence does not link the diabetes mellitus to any event in service. As the Veteran has a diagnosis of diabetes mellitus which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with diabetes mellitus during service. Furthermore, he did not have characteristic manifestations of the disease process (diabetes) during service and diabetes was not noted during service. In fact, at separation the endocrine system was described as normal and the in-service urinalysis was negative for sugar. As such, the facts establish that diabetes mellitus was not manifest during service. In fact, the January 2008 VA physician's statement reveals that the Veteran began treatment for diabetes mellitus (type II) since September 2002. There is no indication in the record that symptoms of diabetes began before 2002. Thus findings illustrate that the Veteran's diabetes mellitus was not manifested to a compensable degree within one year of his separation from service. There is no credible evidence of continuity of symptomatology to the extent that the Veteran alleges as such. In this case, the earliest reference to a diagnosis of diabetes mellitus (type II) is from the January 2008 VA physician's statement indicating treatment since 2002, reflecting a gap of 36 years since service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes at the outset that lay assertions 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. See Layno v. Brown, 6 Vet. App 465 (1994). It is well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)); Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed. Cir. 2009) (rejecting the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.'" (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). The aforementioned are three Jandreau exceptions where a layperson is deemed competent to establish a diagnosis/etiology, and none of those apply in this case. The Board has considered the lay and medical evidence of record and determined that the evidence shows no positive nexus between the Veteran's diabetes mellitus (type II) and service. There is no competent evidence in the record which supports a positive nexus. To the extent that the Veteran is asserting a connection between his diabetes mellitus and an event in service, the record does not support his assertion. There is no opinion from a medical professional which he is repeating nor is this the type of medical question which can be proven solely with lay evidence. As this involves the medical etiology of diabetes mellitus as it relates to an in-service event, this is the type of medical question as to which the Court has held lay statements are not competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). None of the treatment records indicate a relationship between the Veteran's diabetes mellitus and an event in service. Thus, to the extent the Veteran asserts lay evidence of a positive nexus, the Board finds that without any support in the record, such evidence is not competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In short, the diabetes was not noted during service, there is no credible evidence demonstrating a continuity of symptomatology, and there is no competent or credible evidence indicating a positive link between the Veteran's current disability and any event in service, to include exposure to herbicides. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. Given the evidence of record, service connection for diabetes mellitus must be denied. There is no evidence of a disability during service or within one year of separation from service, no proof of in-country service in Vietnam or the inland waterways, no actual exposure to herbicides, and no evidence linking the currently diagnosed disability to service. As such, the preponderance of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) ; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus, type II, to include as secondary to herbicides exposure is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs