Citation Nr: 1335749 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-11 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, asbestos, or ionizing radiation. 2. Entitlement to service connection for erectile dysfunction as due to diabetes mellitus. 3. Entitlement to service connection for eye problems as due to diabetes mellitus. 4. Entitlement to service connection for heart problems as due to diabetes mellitus. 5. Entitlement to service connection for left foot neuropathy as due to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied the Veteran's claim of service connection for diabetes mellitus (which was characterized as diabetes mellitus type II with erectile dysfunction, eye problems, heart problems, and left foot neuropathy). A videoconference Board hearing was held at the RO in April 2013 before the undersigned and a copy of the hearing transcript has been added to the record. Additional evidence associated with the claims file after the issuance of the February 2010 statement of the case is not relevant to the issues on appeal. Therefore, the Board agrees with the RO's decision to not issue a supplemental statement of the case. 38 C.F.R. § 19.37(a) (2013). Accordingly, the Board may proceed with appellate review. FINDINGS OF FACT 1. There is no credible evidence of in-service exposure to herbicides, asbestos, and ionizing radiation. 2. Service connection has not been established for diabetes mellitus. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (2013). 2. The criteria for service connection for erectile dysfunction as secondary to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 3. The criteria for service connection for eye problems as secondary to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310, 4.9 (2013). 4. The criteria for service connection for heart problems as secondary to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 5. The criteria for service connection for left foot neuropathy as secondary to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in March 2007, July 2007, and March 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice of the five elements of a service-connection claim was provided in the March 2007 VCAA notice letter as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support granting service connection for diabetes mellitus, including as due to exposure to herbicides, asbestos, or ionizing radiation and for erectile dysfunction, eye problems, heart problems, and left foot neuropathy, each as due to diabetes mellitus. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the March 2007, July 2007, and March 2009 notices were provided prior to the currently appealed rating decision issued in June 2009; thus, this notice was timely. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The undersigned specifically noted the issues as entitlement to service connection for diabetes mellitus with secondary disabilities of erectile dysfunction, eye problems, heart problems, and left foot neuropathy. The Veteran was assisted at the hearing by an accredited representative from The American Legion. The representative and the undersigned then asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The representative specifically asked the Veteran about continuity of symptomatology since active service. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. The Veteran's representative and the undersigned asked questions to draw out the evidence which related the Veteran's diabetes mellitus to active service and his erectile dysfunction, eye problems, heart problems, and left foot neuropathy to his diabetes mellitus, the only element of the claims in question. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board also recognizes that the Veteran has not been afforded a VA examination for his claimed disabilities. An examination, however, is not required in this case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claim of entitlement to service connection for diabetes mellitus because as detailed below, there is no credible evidence establishing that an event occurred in service. As service connection is not established for diabetes mellitus, it follows that a medical examination and opinion on whether the other claimed disabilities are secondary to diabetes mellitus is not necessary. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection Claims The Veteran contends that he incurred diabetes mellitus as a result of in-service exposure to herbicides (Agent Orange) while on active service aboard the U.S.S. ENTERPRISE (CVN-65) in the territorial waters of the Republic of Vietnam. He contends that he incurred diabetes mellitus as a result of in-service asbestos exposure while aboard the U.S.S. ENTERPRISE (CVN-65) and during an alleged period of imprisonment or confinement while on active service in Italy. Lastly, he contends that he incurred diabetes mellitus as a result of in-service exposure to ionizing radiation while on active service aboard the U.S.S. ENTERPRISE (CVN-65). He contends that he incurred erectile dysfunction, eye problems, heart problems other than ischemic heart disease, and left foot neuropathy as a result of his diabetes mellitus. Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including cardiovascular-renal disease, including hypertension, and diabetes mellitus are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing 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 disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Type 2 diabetes mellitus, ischemic heart disease, and acute and subacute peripheral neuropathy are among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. By contrast, erectile dysfunction and eye problems are not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court found that continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because erectile dysfunction, eye problems, and left foot neuropathy are not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to these claims. By contrast, because cardiovascular-renal disease, including hypertension, and diabetes mellitus are considered "chronic" disabilities under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating these claims. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran's service treatment records show that, at his enlistment physical examination in July 1969, prior to his entry on to active service in August 1969, he denied all relevant pre-service medical history. Clinical evaluation was completely normal. A chest x-ray was negative. A chest x-ray taken in January 1972 was within normal limits. At his separation physical examination in March 1973, prior to his separation from service in May 1973, clinical evaluation of the Veteran was normal except for several scars. A chest x-ray was within normal limits. The Veteran's service personnel records show that he was authorized to wear the Vietnam Service Medal with 1 bronze star and Vietnam Campaign medal with device for service onboard U.S.S. ENTERPRISE (CVN-65) between September 1972 to April 1973. These records indicate that the Veteran's eligibility to wear these decorations was "based on service outside the geographical limits of the Republic of Vietnam but contributed direct support to the Republic of Vietnam Armed Forces." These records also indicate that he was assigned to the U.S. Naval Communication Station, Naples, Italy, between February 1970 and March 1972. The post-service evidence shows that, following a private nuclear stress test in April 2004, the conclusions were no evidence of ischemia and evidence of previous inferobasal infarction. Following private outpatient treatment in December 2004, the diagnoses included coronary artery disease, diabetes mellitus, and hypertension. In a July 2004 letter, D.A.F., M.D., noted that the Veteran's complaints included diffuse cramping, muscular tenderness, and pain since being discharged from the hospital following an inferior myocardial infarction treated with angioplasty/stenting in March 2004. A history of non-insulin dependent diabetes mellitus and hypertension was noted. There was no recurrent chest pain or angina. "He also complains since the myocardial infarction of total impotence." Physical examination showed he was pain free and in no acute distress, normal carotid upstrokes, no carotid bruits, and a regular heart rate and rhythm. The impressions included status-post inferior myocardial infarction treated by angioplasty/stenting, erectile dysfunction, and multiple cardiovascular risk factors including diabetes, hypertension, and dyslipidemia. In an October 2004 letter, Dr. D.A.F. stated that the Veteran's complaints included episodes of heart palpitations at night and erectile dysfunction. A history of inferior myocardial infarction treated with angioplasty/stenting in March 2004 and multiple cardiovascular risk factors was noted. Physical examination was unchanged from July 2004. The impressions included erectile dysfunction "with total impotence since his myocardial infarction." In a January 2005 letter, Dr. D.A.F. noted that the Veteran "has erectile dysfunction which did not respond to Viagra." A history of a myocardial infarction in March 2004 "treated with angioplasty/stenting" was noted along with "multiple cardiovascular risk factors." It also was noted that the Veteran "has been doing well from a cardiac standpoint since the angioplasty." Physical examination showed normal carotid upstrokes, no carotid bruits, and a regular heart rate and rhythm without gallop or murmur. The impressions included status-post anterior myocardial infarction, status-post angioplasty/stenting, erectile dysfunction with "the etiology...probably small-vessel disease due to diabetes mellitus," and multiple cardiovascular risk factors including hypertension, dyslipidemia, and diabetes mellitus. On private outpatient treatment in February 2006, the Veteran's complaints included erectile dysfunction "for the past 2 years." The Veteran was a diabetic and taking an oral agent. The impressions included erectile dysfunction with multiple risk factors including arteriosclerotic heart disease, diabetes, hypertension, hyperlipidemia, and urinary obstructive symptoms. Following subsequent private outpatient treatment in April 2006, the diagnosis was refractive error of the eyes. In a "Physician's Statement for Diabetes" completed by C.B., M.D., in November 2006 and date-stamped as received by the RO in January 2007, this clinician checked a box indicating that the Veteran had been diagnosed as having diabetes mellitus type 2. Dr. C.B. also checked a box indicating that the Veteran's diabetes mellitus requires insulin and a restricted diet or an oral hypoglycemic agent and restricted diet. She finally checked boxes on this form indicating that the Veteran's complications of diabetes mellitus included visual, cardiovascular, neurological, and renal complications. In a February 2007 "Physician's Statement for Diabetes," R.G.W. checked a box indicating that the Veteran's diabetes mellitus requires insulin and a restricted diet or an oral hypoglycemic agent and restricted diet. This clinician also checked a box indicating that the Veteran currently had no complications due to diabetes mellitus. On VA Agent Orange Registry examination in February 2007, the Veteran's medical history included diabetes mellitus "diagnosed about 4 years ago," impotence "first noted around the time he had the heart attack," coronary artery disease with a heart attack in March 2003 and a coronary stent placed "after the heart attack," and hypertension which began "about the same time as" diabetes mellitus. The Veteran reported that he was in Vietnam "for about 7 months" from September 1971 to April 1972. "He unloaded mail planes; He said he stayed on the ship all the time; ship apparently was...in close proximity to [c]oastline - coastline was visible from the ship." The impressions included diabetes mellitus type 2, arteriosclerotic heart disease/coronary artery disease/coronary stent, hypertension, and impotence. On VA diabetic retinopathy surveillance consult in April 2007, it was noted that there was no diabetic retinopathy in either of the Veteran's eyes. In a May 2007 letter, Dr. D.A.F. stated that the Veteran last had been seen in January 2005. "He had a history of coronary artery disease and myocardial infarction likely secondary to his multiple cardiovascular risk factors" including diabetes mellitus, dyslipidemia, and hypertension. On private outpatient treatment in July 2007, no relevant complaints were noted. The Veteran reported no visual changes as a result of his diabetes mellitus. Physical examination showed pupils equal, round, and reactive to light and accommodation bilaterally, full visual fields to confrontation, full and intact extraocular movements bilaterally, normal adnexae bilaterally, dermatochalasis in the left eye, normal conjunctivae bilaterally, clear corneas bilaterally, deep and quiet anterior chambers bilaterally, normal irises and lenses bilaterally, clear vitreous fluid bilaterally, and normal vessels bilaterally. The impressions included no diabetic retinopathy. On VA outpatient treatment in March 2008, the Veteran reported occasional nighttime awakening due to sweating around the head and neck. "This awakening however is not associated with any chest or arm pain or shortness of breath. He feels like his heart runs fast all the time." The Veteran denied any problems with shortness of breath, pedal edema, orthopnea, or paroxysmal nocturnal dyspnea. A history of a myocardial infarction in 2003 was noted. Physical examination showed a slightly irregular heart rhythm that was "slightly rapid" with no murmur, rubs, or gallop. An echocardiogram (EKG) showed atrial fibrillation with rapid ventricular response. The impressions included atrial fibrillation, coronary artery disease, diabetes, and hypertension. In April 2009, the Veteran complained of "occasional floaters" in his vision but denied any vision changes. A history of diabetes mellitus, hypertension, and coronary artery disease was noted. The assessment included type 2 diabetes "without retinopathy" in both eyes and hypertension "with elevated blood pressure today." The Veteran testified at his April 2013 Board hearing that he had served onboard U.S.S. ENTERPRISE while this ship was within a few miles of the coastline of Vietnam. See Board hearing transcript dated April 25, 2013, at pp. 3. He also testified that his in-service duties included handling mailbags that had come from Vietnam and he was exposed to herbicides while handling these bags. Id., at pp. 4. Specifically, he testified as follows: I believe as part of my duties as (indiscernible), my squadron and I would have to go to the place that come from (indiscernible) and other parts of Vietnam carrying the mail and unload the campus mail bags and those bags were never washed. They were in and out of the land mass of Vietnam at all times and I feel this is likely where I could have come in contact with herbicide or, or other chemicals. . . . That, you know, I did this on a regular basis and planes came down in record time on the ship. And, and, and they had to come unload (indiscernible) planes and (indiscernible) from the land base and (indiscernible) in mail bags in the base (indiscernible) that the name and, and we were -- they could have gotten exposed as easily as I could have gotten exposed. . . . I only handled the, the mailbags themselves. Id. at pp. 4. He testified further that he was exposed to asbestos. Id. at pp. 5. Specifically, he testified as follows: I believe that asbestos exposure was in the areas where were completing the (indiscernible), underneath the -- near the -- underneath (indiscernible) aircraft (indiscernible) and when, when they (indiscernible) underneath the third wire, which is the one that the Navy tries to catch the plane from, and when they land on that with such force, then all that stuff just comes falling down off the ceiling of the aircraft, of the -- in -- on the ship and I believe, you now, it would be floating in the air and I could be exposed to it just by the particles that were in the air. Id. at pp. 5. The Veteran finally testified that he had been told that he had diabetic retinopathy. Id. at pp. 7. Analysis The Veteran claims entitlement to service connection for diabetes mellitus as due to exposure to herbicides, asbestos, and ionizing radiation. The Veteran does not contend that his diabetes mellitus or symptoms associated with diabetes mellitus first manifested in service or during the one year period following his discharge from service and continued ever since service. See January 2007 VA Form 21-526 (reporting the onset of diabetes mellitus in April 2000). The Veteran similarly does not contend that the other claimed disabilities had their onset during service but rather only that they are secondary to his diabetes mellitus. Id. (reporting the onset of erectile dysfunction in April 2004, and reporting the onset of heart problems, eye problems, and left foot neuropathy in March 2003). Thus, the issue before the Board is whether service connection may be granted for a disease diagnosed after discharge that is otherwise shown to be etiologically related to an established event in service, and if so, whether service connection for other claimed disabilities may be granted secondary to the service connected disability. 38 C.F.R. §§ 3.303(d), 3.310 (2013). With respect to the asserted etiological relationship between his current diabetes mellitus and in-service herbicide exposure, the Board notes that the Veteran's service personnel records confirm that he was authorized to wear the Vietnam Service Medal with 1 bronze star and Vietnam Campaign medal with device for service on U.S.S. ENTERPRISE (CVN-65) between September 1972 to April 1973. These records indicate that the Veteran's eligibility to wear these decorations was "based on service outside the geographical limits of the Republic of Vietnam but contributed direct support to the Republic of Vietnam Armed Forces." The Veteran does not contend - and the evidence does not show -that he had "in country" duty or visitation in the Republic of Vietnam at any time during active service. He testified instead at his April 2013 Board hearing that his service on U.S.S. ENTERPRISE (CVN-65) constituted Vietnam service for VA compensation purposes. See Board hearing testimony dated April 25, 2013, at pp. 3-5. Because the Veteran's service personnel records show that he had no in-country duty in Vietnam, his active service does not meet the regulatory definition of Vietnam service found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the Federal Circuit in Haas. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Accordingly, because the Veteran did not have active service in Vietnam, his in-service herbicide exposure may not be presumed. See 38 C.F.R. §§ 3.307, 3.309. In addition, the record does not otherwise show that the Veteran was exposed to herbicides during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's allegation of exposure is that he was exposed to herbicides from handling mail bags from aircraft that flew in the Republic of Vietnam. The evidence in support of the material issue of whether the Veteran was exposed to herbicides must be based within the range of probability as opposed to pure speculation or remote possibility. 38 C.F.R. § 3.102 (2013). It is clear from the Veteran's testimony at the hearing that his theory on how he was exposed to herbicides is based on speculation. Thus, the lay evidence of record does not establish credible evidence of in-service herbicide exposure. In addition, in a May 2009 Memorandum from the Department of Army, U.S. Army & Joint Services Records Research Center (JSRRC), it was noted that in the course of its research efforts, the JSRRC had 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 Agent Orange, during the Vietnam Era. 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 can provide no 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. Thus, there is no evidence from the service department that establishes in-service herbicide exposure. Accordingly, there is no credible direct evidence of in-service herbicide exposure. Consequently, the Veteran's theory of entitlement to service connection for diabetes mellitus based on in-service herbicide exposure cannot be established. With respect to the contended etiological relationship between his current diabetes mellitus and in-service asbestos exposure, the Board notes that the Veteran's assertions regarding his alleged in-service asbestos exposure are inconsistent. The Veteran initially reported on a VA Form RRAIS (JF), "Radiation Risk Activity Information Sheet," dated on March 27, 2007, and date-stamped as received by the RO on April 10, 2007, that he "probably" had been exposed to asbestos during a "2 week period in Italy prison. Prison proba[b]ly [sic] had asbestos." He also stated that he was imprisoned in 1971. (The Board notes parenthetically that, although this form was provided so the Veteran could report any alleged in-service ionizing radiation exposure, his statements on this form instead pertained to his alleged in-service herbicide and asbestos exposure.) The Veteran then subsequently testified at his April 2013 Board hearing that he "could" have been exposed to asbestos during active service from asbestos particles being in the air following aircraft maneuvers on U.S.S. ENTERPRISE (CVN 65) as detailed above. See Board hearing transcript dated April 25, 2013, at pp. 5. In response to the RO's request for records of exposure to asbestos and jobs the Veteran performed, the National Personnel Records Center (NPRC) forwarded the Veteran's personnel records. The service personnel records show that the Veteran was assigned to the U.S. Naval Communication Station, Naples, Italy, between February 1970 and March 1972, and the service treatment records show that the Veteran underwent a physical examination in connection with a confinement in December 1971. There is no indication of any in-service asbestos exposure or complaints of or treatment for any disability following any alleged asbestos exposure in the Veteran's service treatment and personnel records. Also, the Veteran's military occupational specialty (MOS) was radioman, which is not consistent with asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). It is also significant that the Veteran is not diagnosed with a disease commonly associated with asbestos exposure which includes fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, or cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). Rather, the Veteran is seeking service connection for diabetes mellitus. It is clear from the Veteran's testimony at the hearing and in statements of record that his theory on how he was exposed to asbestos is based on speculation. There are also no service department records that show in-service asbestos exposure. Thus, the lay evidence of record and service department records do not establish credible evidence of in-service asbestos exposure. Consequently, the Veteran's theory of entitlement to service connection for diabetes mellitus based on in-service asbestos exposure cannot be established. In regard to the Veteran's contention that he was exposed to radiation aboard the U.S.S. ENTERPRISE (CVN 65), the only details on this theory of entitlement are contained in the Veteran's application for compensation benefits. The Veteran maintained that by virtue of service aboard the U.S.S. ENTERPRISE, "a nuclear carrier," he was exposed to radiation. As noted above, although VA Form RRAIS (JF), "Radiation Risk Activity Information Sheet," was provided so the Veteran could report the details on his alleged in-service ionizing radiation exposure, his statements on this form instead pertained to his alleged in-service herbicide and asbestos exposure. In response to the RO's request for records of exposure to radiation including DD Form 1141, the NPRC reported that there were no such records. It is also significant that the Veteran is not diagnosed with a disease specific to radiation-exposed veterans or a radiogenic disease. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2) (2013). It is clear from the Veteran's statements that his theory on how he was exposed to radiation is based on speculation. There are also no service department records that show in-service radiation exposure. Thus, the lay evidence of record and service department records do not establish credible evidence of in-service radiation exposure. Consequently, the Veteran's theory of entitlement to service connection for diabetes mellitus based on in-service radiation exposure cannot be established. As there is no credible evidence of in-service exposure to herbicides, asbestos, and ionizing radiation, there can be no credible link of diabetes mellitus to the Veteran's service. Accordingly, service connection for diabetes mellitus is not warranted. As the condition precedent of establishing service connection for diabetes mellitus has not been met, the claims of entitlement to secondary service connection for erectile dysfunction, eye problems, heart problems, and left foot neuropathy are without merit. The preponderance of the evidence is against the claims and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, asbestos, and ionizing radiation is denied. Entitlement to service connection for erectile dysfunction as due to diabetes mellitus is denied. Entitlement to service connection for eye problems as due to diabetes mellitus is denied. Entitlement to service connection for heart problems as due to diabetes mellitus is denied. Entitlement to service connection for left foot neuropathy as due to diabetes mellitus is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs