Citation Nr: 1331257	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  12-26 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE
Entitlement to service connection for diabetes mellitus, to include as secondary to exposure to Agent Orange (AO).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from April 1964 to November 1967. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). 


FINDINGS OF FACT

1.  The Veteran did not serve in Vietnam.

2.  The Veteran's service treatment records do not show evidence of diabetes mellitus, diabetes mellitus was not demonstrated to a compensable degree within one year of separation from service, and the most probative evidence of record fails to demonstrate that it is at least as likely as not that diabetes mellitus is etiologically due to service.  


CONCLUSION OF LAW

Diabetes mellitus was not incurred in or aggravated by active service, to include exposure to AO, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) and the regulations implementing the VCAA.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Under this law, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The RO sent the Veteran a letter in April 2011, prior to adjudication, that informed him of the requirements to establish entitlement to service connection.  In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain.  In compliance with the duty to notify, the Veteran was informed in the April 2011 letter of the criteria for assignment of a disability rating and effective date, in the event of award of the benefit sought.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  Although no nexus opinion has been obtained on the issue on appeal in this case, none is needed.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the appellant experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4).  Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary.  

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A.  Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two.

There is no competent evidence of record indicating that there may be an etiological relationship between the Veteran's military service and his diabetes mellitus.  Although the Veteran's asserts that he was exposed to Agent Orange by contaminated water supply and cleaning of aircraft, the Board does not find that he is competent to make a finding as to the chemical make-up of substances to which he was exposed in service.  In this regard, he has not been demonstrated to have had the requisite education or training.  As discussed in greater detail below, diabetes mellitus was not demonstrated in service or for many years after service discharge, and the Veteran has not asserted continuity of symptomatology since service.  Indeed, he indicated that he did not incur the disability until many years after service.  Moreover, there is no nexus opinion on file in favor of the claim.  Consequently, there exists no reasonable possibility that a VA examination with a nexus opinion would result in a finding favorable to the Veteran in this case.  Accordingly, the Board finds that an etiology opinion is not "necessary."  Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case); see, generally, Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed.Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease).  

The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided on appeal.  The Veteran has been given ample opportunity to present evidence and argument in support of his claim.  All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).


Analysis of the Claim

The Veteran seeks service connection for diabetes mellitus.  He has contended that he has diabetes mellitus due to exposure to herbicides in service while aboard ship.  

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In the case of diabetes mellitus, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

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 a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii).

If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases, to include diabetes mellitus, shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied.  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).

The above VA regulation means that if the Veteran served in Vietnam and is subsequently diagnosed with Type 2 diabetes mellitus, it is presumed to have been incurred as a result of service.

According to the evidence on file, the Veteran served aboard the USS ORISKANY; he was awarded the Vietnam Service Medal (VSM).  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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);

(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. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Although the Courts have also held that laypersons are competent to report symptoms regarding tinnitus as here, the determination of competency is different than that of credibility.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's service treatment records, including his November 1967 separation medical evaluation report, do not reveal any complaints or findings indicative of diabetes mellitus.  

Entries in the Deck Log Book for the USS ORISKANY show that ships noted to be on the "herbicide list" provided support services for the USS ORISKANY in 1966 and 1967 while on station.

Added to the file in April 2011 is a list of the Contaminants of Concern at Yuma Marine Corps Air Station and Treasury Island Naval Station-Hunters Point Annex.
VA treatment reports dated from March 2010 to October 2011 reveal an assessment in March 2010 of diabetes mellitus "on the morbid control."  diabetes mellitus was diagnosed in August 2010.

According to lay statements, received by VA in April 2011, from fellow servicemen, the Veteran was exposed to chemicals and solvents, including jet fuel.

According to a February 2012 Memorandum from the United States Army and Joint Services Records Research Center (JSRRC) coordinator, the JSRRC has reviewed numerous official military documents, ships' histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as AO, during the Vietnam Era and found no evidence that indicates that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides.  Additionally, the JSRRC cannot document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam.  Therefore, the JSRRC cannot provide evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era.

The Board must initially determine whether there is sufficient evidence to demonstrate that the Veteran had "service in Vietnam," such that exposure to herbicides may be presumed.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  

"Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  In fact, the Federal Circuit recently issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it 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 was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  Haas, 525 F.3d at 1193-1194.  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); and 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 addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM).  Haas, 525 F.3d at 1196. 

With regard to inland waterways, again, 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 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 1187-1190; 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.  VA Adjudication Procedure Manual 
M21-1MR, pt. IV, subpt. ii, Chapter 2, Section C, paragraph 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. 

In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  Exposure to herbicides is not presumed in such instances.  However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. 

Upon review of the evidence, the Board finds that the Veteran does not have "service in Vietnam," consequently exposure to herbicides may not be presumed.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a).  Evidence on file confirms that the Veteran served aboard the USS ORISKANY in the deep waters off of the Republic of Vietnam, and not in any inland waterway.  Further, there is no evidence of service on the Vietnam landmass.  Although the Veteran has received the Vietnam Service Medal (VSM) based on his service in Vietnam waters, as noted above, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM.  Haas, at 1193-1194, 1196.  Also, this medal does not serve as sufficient proof that he actually set foot on the Vietnam landmass.  In fact, the Veteran does not contend that he was on the Vietnam landmass.  Rather, he contends that he was exposed to herbicides while on the USS ORISKANY from washing airplanes that had flown over Vietnam and from handling material received from ships that had been in Vietnam and were used to provide support services for the USS ORISKANY.  However, as noted in the February 2012 Memorandum from JSRRC, the JSRRC cannot provide evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era.  Consequently, the Veteran is not entitled to service connection for DM on a presumptive basis as discussed in 38 C.F.R. § 3.309(e).  

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. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994).  The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure.  McCartt v. West, 12 Vet. App. 164, 167 (1999).  

 However, service connection for diabetes mellitus on a nonpresumptive direct-incurrence basis is not warranted in this case.  There is no evidence in service, or for many years thereafter, indicative of DM.  Moreover, there is no evidence of continuity of symptomatology since service.  38 C.F.R. § 3.303(b).  In fact, the initial medical evidence of DM was not until 2010, which is over 32 years after service separation.  Moreover, there is no competent nexus opinion relating the Veteran's diabetes mellitus to service.  

The statements on file from the Veteran and his fellow soldiers have been considered in this case.  While the Veteran is competent to talk about his symptomatology, and his fellow soldiers are competent to talk about what they have observed, he cannot provide competent medical evidence of a linkage between his current DM and his military service.  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. 
§ 3.159(a).  A layperson is generally not competent to provide a diagnosis or opine on the etiology of a disability such as diabetes mellitus.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007).  Consequently, as competent medical evidence has not been shown, service connection for diabetes mellitus is not warranted.   

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim denied above, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for diabetes mellitus is denied.


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs