Citation Nr: 1336016 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-26 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for neuropathy of the left and right lower extremities, to include as due to herbicide exposure. 3. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. 4. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 5. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD John Kitlas, Attorney INTRODUCTION The Veteran served on active duty from September 1971 to February 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The record reflects the Veteran had requested a hearing before a Veterans Law Judge (VLJ) of the Board in conjunction with this appeal. However, he withdrew this hearing request in September 2013 via a statement submitted through his attorney. FINDINGS OF FACT 1. The record reflects the Veteran had no in-country service or documented visitation in the Republic of Vietnam, or exposure to herbicides, including Agent Orange. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has diabetes mellitus that was incurred in or otherwise the result of his active service, to include as due to herbicide exposure. 3. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has neuropathy of the left and right lower extremities, to include as due to herbicide exposure and/or as secondary to diabetes mellitus. 4. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has ischemic heart disease, to include as due to herbicide exposure. 5. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has hypertension, to include as due to herbicide exposure. 6. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for diabetes mellitus, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97; Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. 2. The criteria for a grant of service connection for neuropathy of the left and right lower extremities, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97; Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. 3. The criteria for a grant of service connection for ischemic heart disease, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97; Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. 4. The criteria for a grant of service connection for hypertension, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97; Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. 5. The criteria for a grant of service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013); Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97; Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under the law, VA is required to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that the notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in August 2007 and October 2008, both of which were prior to the respective rating decisions that initially adjudicated the Veteran's claims. Further, these letters, as well as a December 2010 notification letter, were all received prior to the last adjudication below of the appellate claims via a July 2012 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. These letters, in pertinent part, informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims, to include from his attorney, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (Mayfield I), reversed on other grounds, Mayfield II, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence relating the etiology of the claimed disabilities to a disease or injury incurred in or aggravated by his active service. As discussed in greater detail below, his claims are based upon purported herbicide exposure while in Da Nang Harbor in the Republic of Vietnam during his active service. The record reflects efforts were made through official to determine if the Veteran had service in the landmass of Vietnam, to include the inland waters thereof, to include a March 2011 response from the United States Armed Services Center for Unit Records Research (CURR). These efforts were detailed in an April 2011 Memorandum for the file. The Board also notes, as discussed below, the circumstances upon which the Veteran contends he was exposed to herbicides are not in dispute. Rather, the issue is whether the circumstances of this reported exposure constitutes being present on the landmass or the inland waters of Vietnam. The Board further notes the Veteran was accorded a VA medical examination regarding this case in June 2010, which included findings regarding the nature of the claimed disabilities. Although this examination did not explicitly provide an opinion as to whether these disabilities were etiologically linked to service, for the reasons discussed below the record does not reflect the Veteran had herbicide exposure while on active duty nor does there appear to be any other basis upon which these disability may be associated with the Veteran's act of service to include his own contentions. Consequently, no such medical opinion is warranted based upon the facts of this case. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic diseases that are present to a compensable degree within the first post-service year and includes diabetes mellitus and hypertension . See 38 C.F.R. §§ 3.307, 3.309(a). for VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104 , Diagnostic Code 7101. Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Initially, the Board notes that there is no indication of diabetes mellitus, peripheral neuropathy of the lower extremities, heart disease to include hypertension, and/or erectile dysfunction in the Veteran's service treatment records. For example, the Veteran checked boxes on a 1971 Report of Medical History, completed concurrent with his enlistment examination, that he had not experienced swollen or painful joints, palpitation or pounding heart, high or low blood pressure, cramps in legs, foot trouble, neuritis, nor any of the other claimed disabilities. He also indicated he had no family history for diabetes. Further, his heart, feet, and neurologic system were evaluated as normal on the enlistment examination itself; and there were no findings of diabetes mellitus or erectile dysfunction. His lower extremities were found to be abnormal due to mild genu valgus. His blood pressure was noted as being 104/68 (systolic/diastolic) on this examination. Nothing in the subsequent service treatment records indicates the claimed disabilities, to include the February 1975 discharge examination. His blood pressure was noted as being 104/76 on this examination. In addition, the first indication of the claimed disabilities in the post-service medical records is years after service. Indeed, no post-service medical records appear to be on file dated prior to 2005. Moreover, the Veteran has not contended that these disabilities were present while on active duty; i.e., he has not disputed these disabilities first developed years after active service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Further, as these disabilities were first diagnosed years after service, the Veteran is not entitled to a grant of service connection on a presumptive basis pursuant to 38 C.F.R. §§ 3.307, 3.309(a), for a chronic disease present to a compensable degree within the first post-service year. In this case, the Veteran essentially contends that he developed type II diabetes mellitus, peripheral neuropathy of the lower extremities, heart disease to include hypertension, and erectile dysfunction as secondary to herbicide exposure while serving in Vietnam. He has also indicated that his erectile dysfunction is secondary to the diabetes mellitus, and the June 2010 VA examination indicates both this dysfunction and the peripheral neuropathy is secondary to the diabetes. He has not identified any in-service disease or injury as having caused or aggravated these claimed disabilities, nor is such indicated by the other evidence of record to include the service treatment records. The law provides that if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases 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: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On August 31, 2010, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease were added to the list. 75 Fed. Reg. 53202 (2010). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke that do not directly affect the muscles of the heart. Id. at 53204. The Board also notes that, effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. VA also amended § 3.816, the regulation governing retroactive awards under Nehmer for certain diseases associated with herbicide exposure, by removing the language from paragraph (b)(2) that the Nehmer court orders only apply to presumptions established before October 1, 2002 and removing the list of conditions. This revision addresses findings in the Nehmer court orders that the date restriction and corresponding list of presumptive conditions were invalid, since they were not inclusive of all conditions the Secretary has determined to be presumptively service connected based on herbicide exposure under the Agent Orange Act of 1991. VA is inserting language at § 3.816(b)(2) to clarify that the Nehmer court orders apply to the presumptions listed in § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. 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 and porphyria cutanea tarda 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). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. The record reflects the Veteran had service aboard the U.S.S. Roark while on active duty, and that deck logs reflect this vessel was anchored in Da Nang Harbor in 1972 while the Veteran was stationed aboard. His service personnel records do not actually document service on the landmass or the inland waters of Vietnam. Nevertheless, the Veteran himself does not indicate such was the case. In fact, he reported at the June 2010 VA medical examination that he was never on land during his active service. Rather, he contends that Da Nang Harbor constitutes an inland waterway of the Republic of Vietnam, and that he is entitled to presumptive herbicide exposure pursuant to 38 U.S.C.A. § 1116 on that basis. In support of this assertion, the Veteran has submitted a copy of and cited to a November 2009 Board decision for another veteran which held that: [The claimant's] service was conducted on a ship that frequently anchored in a harbor within the territorial borders of Vietnam. The evidence of record clearly shows that Da Nang Harbor is well sheltered and surrounded on three sides by the shoreline of Vietnam. The harbor is nearly totally surrounded by land and that the entire harbor is located within the territorial boundaries of Vietnam. As such, given the location of the harbor as being surrounded by the land on three sides and the evidence that the harbor is within the territory of Vietnam, and resolving all doubt in the [claimant's] favor, the Board finds that Da Nang Harbor is an inland waterway for the purposes of the regulation. The Veteran's attorney has also cited to sources in support of the proposition that Da Nang Harbor would be considered inland waters pursuant to international law, as well as United States Supreme Court precedent in United States v. Louisiana, 394 U.S. 11, 22-23 (1968). The Board does not dispute that the November 2009 decision in question did make such a finding as detailed above. In fact, it is documented in the copy of the decision on file, as well as research on the Board's intranet system. However, as a general matter, prior Board decisions are only binding in the specific case decided. Simply put, the prior November 2009 Board decision has no precedential value in the present Veteran's case. 38 C.F.R. § 20.1303. The Board also notes that the position advocated by the Veteran that Da Nang Harbor constitutes inland waters of Vietnam is contrary to VA's official position on this matter. For example, in December 2008, VA Compensation and Pension (C&P) Service released Policy on Vietnam Naval Operations. C&P Service initiated a program to collect data on Vietnam naval operations for the purpose of providing ROs with information to assist with development in Haas related disability claims based on herbicide exposure from Navy Veterans. This particular policy statement provided further definition as to what constitutes Vietnam "blue water" versus "brown water" for the purpose of determining herbicide exposure. In general, "blue water" vessels such as gun line ships, aircraft carriers and supply and support ships operated in the blue-colored waters of the open ocean. Smaller vessels based along the close coastal waters or within the inland waterways of Vietnam were referred to as the "brown water" navy as they operated on the muddy, brown-colored inland waterways of Vietnam. However, this Bulletin specifically stated that Da Nang Harbor and all other harbors along the Vietnam coastline were considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam. Ultimately, VA considers open deep-water coastal harbors, such as those at Da Nang, Cam Rahn Bay, and Vung Tau to be part of the offshore blue water of Vietnam and not part of its inland waterway. See December 2008 C&P Service Bulletin. In September 2010 the Veterans Benefit Administration issued a Training Letter detailing the procedures for adjudicating claims based on herbicide exposure from Navy veterans, which included the distinction between "blue water" and "brown water" vessels. See Training Letter 10-06 (September 2010); see also VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. This letter, in pertinent part, reiterated that Da Nang Harbor and all other harbors along the Vietnam coastline were considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam. The rationale for concluding Da Nang Harbor was an open waterway, as opposed to inland waters of Vietnam, is discussed in the December 2008 C&P Bulletin, September 2010 Training Letter, and M21-1MR provisions. For the sake of brevity, this rationale will not be reiterated in this decision. The Veteran's attorney has contended that to not find Da Nang Harbor was an inland waterway in this case, after so finding in the November 2009 decision, would be a violation of the due process clause of the Fifth Amendment of the U.S. Constitution. In support of this assertion, the attorney cites to Yeung v. INS, 76 F.3d 337, 340 (11th Cir. 1995) for the proposition that the Fifth Amendment dictates that the federal government may not provide disparate treatment to similarly situated individuals. The attorney also asserted that the Federal Circuit has held that veterans benefits are entitled to due process protections under the Fifth Amendment: that entitlement to veterans benefits is a property interest protected by the due process clause. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). With respect to these contentions, the Board notes that Yeung case was in the 11th Circuit Court of Appeals, which has appellate jurisdiction over designed Federal District Courts in Alabama, Georgia, and Florida. In other words, its caselaw is not specifically binding in this case as the United States Court of Appeals for Veterans Claims, United States Court of Appeals for the Federal Circuit, and the United States Supreme Court are the courts which have jurisdiction over decisions of VA. Moreover, the case of Yeung dealt with deportation rules for immigrants, and not veterans benefits, and was focused on the laws relating to immigration. Further, in that case, the claimant was being denied the opportunity to apply for a section 212(h) waiver of excludability for deportation. In this case, the Veteran is not being denied the opportunity to apply for VA benefits based upon his purported herbicide exposure. Rather, the Board's action in this case is whether the circumstances of this case constitutes actually been present on the landmass or the inland waters of Vietnam. Moreover, in Haas, the Federal Circuit essentially found that it is permissible for VA to treat claimants differently based upon whether there service was in "blue waters" as opposed to "brown waters." The Board acknowledges that the Federal Circuit did find in Cushman that a veteran's entitlement to disability benefits is a property interest protected by the due process clause. However, the facts of the Cushman case involved circumstances where a claim was evaluated based upon improperly altered evidence. Nothing in the facts of this case indicates any such altering of evidence has occurred. The Federal Circuit also emphasized the need for a fair adjudication of a claim as part of the claim for veterans benefits. Here, there does not appear to be any indication that the Veteran has been denied the opportunity to present any evidence or argument in support of his claims, or that there were any other due process violations. The Board also reiterates that, as discussed above, the duties to notify and assist in this case have been satisfied. The Board also wishes to reiterate that the November 2009 Board decision referenced by the Veteran in this case was for a different veteran and has no precedential effect in this case. 38 C.F.R. § 20.1303. Granted, both cases involved claimants who had evidence of being in Da Nang Harbor during the Vietnam War Era. However, at this time the Board does not have that claim before it, and cannot know what facts in that case may have been different so as to warrant a grant in that case. For example, there could have been evidence that the Veteran in the November 2009 decision went ashore while his vessel was stationed in Da Nang Harbor, while the Veteran in this case has denied ever going on land during this time. Indeed, if the Veteran in this case had reported such inland visitation during this period the results of this case would likely have been different. The Board also notes that the November 2009 decision in question indicated the veteran in that case had service aboard the U.S.S. Oklahoma City, which has been recognized as a ship operating temporarily on Vietnam internal waterways during the period that veteran was on active duty. In any event, the Board cannot ignore what has been identified as official VA policy that being in Da Nang Harbor, in and of itself, does not constitute inland waters of Vietnam for purposes of applying the presumptive provisions of 38 C.F.R. § 3.307, 3.309(e). The Board further notes that VA has also promulgated a listing of the Navy ships associated with service in Vietnam and hence exposure to herbicide agents. This list was included as part of the December 2008 C&P Bulletin, as well as updated C&P Bulletins promulgated in January 2010, May 2011, November 2012, and an updated list from July 2013. In pertinent part, these lists identify ships that operated primarily or exclusively on Vietnam's inland waterways, ships that operated temporarily on Vietnam's inland waterways or docked to the shore, and ships that operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. For ships identified as operating primarily or exclusively on Vietnam's inland waterways, a claimant need not leave the ship in order for VA to concede herbicide exposure. On the other hand, a claimant who served aboard a ship that docked or operated on the close coastal offshore waters must provide evidence of "visitation in Vietnam" with a lay statement attesting to the fact that he or she personally went ashore, in order for VA to concede herbicide exposure. A thorough review of all these Bulletins does not reflect that the U.S.S. Roark was part of the list of "brown water" ships, nor is there any indication that it docked at, or transited the inland waterways of the Republic of Vietnam, coincident with the time period when the Veteran was a member of its crew. The March 2011 CURR response is also against such a finding, and there is no evidence of such service in the Veteran's service personnel records either. Moreover, the Board reiterates the Veteran reported at the June 2010 VA examination he did not go ashore when this vessel was stationed in Da Nang Harbor, and nothing in his other statements of record refutes that statement. In view of the foregoing, the Board must find that the record reflects the Veteran had no in-country service or documented visitation in the Republic of Vietnam, or exposure to herbicides, including Agent Orange. Nothing in the other evidence of record indicates any other basis for such exposure. Therefore, he is not entitled to a grant of service connection on that basis. The Board must also note that even if it were to find the Veteran did have exposure to herbicides while on active duty, he would still not be entitled to a grant of service connection for hypertension on that basis. As stated above, the presumption of service connection for ischemic heart disease does not include conditions such as hypertension, peripheral artery disease, and stroke. As already noted, the Veteran has based his claim entirely upon presumptive herbicide exposure while in Da Nang Harbor. No other basis for relating the etiology of the claimed disabilities to service is demonstrated by the evidence of record; i.e., the Veteran has not indicated that these disabilities were otherwise caused or aggravated by an in-service disease or injury, nor is such indicated by the other evidence of record to include the service treatment records. Further, no other presumptive provision appear applicable to the facts of this case. Moreover, he has no service-connected disabilities that would warrant consideration of 38 C.F.R. § 3.310. Granted, the June 2010 VA examination indicates that his erectile dysfunction is secondary to his diabetes mellitus, as well as the peripheral neuropathy of the lower extremities. However, the law does not permit the establishment of service connection for a disability that was caused or aggravated by another service-connected disability. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has diabetes mellitus, neuropathy of the left and right lower extremities, ischemic heart disease, hypertension, and/or erectile dysfunction, that was incurred in or otherwise the result of his active service, to include as due to herbicide exposure and/or as secondary to a service-connected disability. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Service connection for neuropathy of the left and right lower extremities, to include as due to herbicide exposure, is denied. Service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. Service connection for hypertension, to include as due to herbicide exposure, is denied. Service connection for erectile dysfunction, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs