Citation Nr: 1336121 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-37 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for kidney disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in September 2010. The Veteran died several days later in September 2010, and the appellant, his surviving spouse, is prosecuting the appeal as a substitute claimant pursuant to 38 U.S.C.A. § 5121A (West Supp. 2012). The RO denied service connection for the cause of the Veteran's death in December 2010 and again in September 2012. That matter has not been appealed. The appellant presented testimony at a Board hearing in December 2012. At the time of the hearing, evidence was submitted and a waiver of RO consideration of it was furnished. At the December 2012 hearing, it was stated that the representative had not had an opportunity to review the claims file. The national office of the representative subsequently reviewed the claims file and entered an informal brief in November 2013 indicating that it had nothing to add and wished the Board to proceed with appellate review. FINDINGS OF FACT 1. The Veteran's diabetes mellitus was not manifest in service, to a degree of 10 percent within 1 year of separation, and is otherwise unrelated to service. 2. The Veteran's kidney disorder was not manifest in service, to a degree of 10 percent within 1 year of separation, and is otherwise unrelated to service. As diabetes mellitus is not service-connected, the Veteran's current kidney disorder cannot be service-connected as secondary to it. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for kidney disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2008. Such notice was repeated in May 2009. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. The Veteran claimed service connection for diabetes mellitus as due to in-service Agent Orange exposure, and for kidney disorder as secondary to his diabetes mellitus, and the appellant now seeks those benefits on appeal as a substitute claimant. VA has obtained service treatment records; assisted the claimant in obtaining evidence; and afforded the claimant the opportunity to give testimony before the Board. A VA examination or medical opinion is not necessary. For the diabetes mellitus claim, an in-service event, disease, or injury is not shown, and for the kidney disease claim, the medical evidence already indicates, as had been claimed, that the Veteran's kidney disease was caused by his diabetes mellitus. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the claimant has not contended otherwise. VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus and/or cardiovascular-renal disease, including hypertension, 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service 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, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. There is a presumption of Agent Orange exposure under 38 U.S.C.A. § 1116 (West 2002) for Veterans who set foot on land in Vietnam or had service in the inland waterways of Vietnam during the Vietnam Era. There is a presumption of service connection for diabetes mellitus based on in-service Agent Orange exposure, but there is no presumption of service connection for kidney disease based on in-service Agent Orange exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309; Haas v. Peake, 525 F.3d 1168 (2008); VA Manual M21-1MR, Pt. IV.ii.2.C.10.k. Service treatment records contain no mention of diabetes mellitus or kidney disease and it is not claimed that either was present in service. An April 2007 private medical record (found on Virtual VA) indicates that the Veteran reported that diabetes mellitus was diagnosed 4 years beforehand, and that he had had polyuria, polydipsia, and polyphagia for 10 or 11 years. A May 2007 private medical record indicates that the Veteran had chronic kidney disease due to underlying diabetes mellitus. The Veteran reported in April 2008 that his diabetes mellitus began in 2007, and that his kidney disease began in 2007. Based on the evidence, it is clear that the Veteran's diabetes mellitus and/or kidney disease were not manifest in service or to a degree of 10 percent within 1 year of separation. They were not shown in service or until many years after service and the April 2007 private medical record indicates that symptoms began about 10 or 11 years before that treatment. Additionally, no competent evidence of record relates them to service. There has been no medical evidence relating them to service and they were first manifest many years after service. It has been argued that the Veteran's diabetes mellitus is due to in-service Agent Orange exposure while he was aboard the U.S.S. JOSEPH STRAUSS (DDG 16) in Da Nang Harbor in April 1972, and so service connection is warranted presumptively under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309, and that service connection is warranted for kidney disease secondary to it under 38 C.F.R. § 3.310. The Board first notes that service records do list the DDG-16 as having inland waterway service in 1968; however, the Veteran was not onboard at that time. It is argued that the exposure was several years later. The evidence, including service deck logs for DDG 16, shows that DDG 16 was anchored in the waters of Da Nang Harbor for several days while the Veteran was onboard in April 1972. It is not in dispute that it did not dock in Da Nang Harbor. It is also not contended that the Veteran set foot on the shore of Vietnam during the Vietnam Era. In essence, it is argued that because DDG 16 was anchored in the waters of Da Nang harbor, which is surrounded on 3 sides by land and has 2 rivers flowing into it, DDG 16 should be considered to have operated in a Vietnam inland waterway, thus qualifying the Veteran for presumptive Agent Orange exposure based on his service aboard in April 1972. A map has been submitted showing that Da Nang harbor is essentially surrounded on 3 sides by land, and has 2 rivers flowing into it. Geneva Convention Articles (1958) have also been submitted in an effort to show that where DDG 16 was in Da Nang harbor was sufficient for it to be considered in the territorial waters of Vietnam. However, the provisions of M21-1 mentioned above indicate that service "aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the RVN coast does not constitute" inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides. Inland waterway service would have to be shown in this case, not merely territorial water service. Another Board decision has been submitted indicating that under circumstances fairly similar to those present here, i.e., with the claimant being aboard a ship that anchored in Da Nang Harbor, service connection was granted for an Agent Orange exposure related disability based on presumptive Agent Orange exposure in that Harbor. However, Board decisions are not precedential and the information from M21-1 mentioned above was not expressly discussed in that Board decision. The M21-1 provisions mentioned are unsupportive and clearly indicate that the Veteran's service was insufficient to establish presumptive exposure to herbicides. Since the evidence necessary to show presumptive exposure to herbicides based on service in Vietnam is not present, actual Agent Orange exposure must be shown in order to prevail presumptively for diabetes mellitus and for kidney disease secondary to it under 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309, 3.310. In this case, communications between RO and VA central office took place in August 2012 regarding a water barge, YW-118, which apparently took water from a spring at Monkey Mountain near Da Nang in Vietnam and supplied it to DDG 16 while the Veteran was onboard in April 1972. The discussion pointed out that the water was from an underground spring, that Agent Orange was not sprayed within 5 miles of the spring, and that Agent Orange spraying was terminated in early 1971, before the Veteran's April 1972 service in Da Nang harbor. It was reported that water from an underground mountain spring would not have been affected by Agent Orange sprayed on foliage in the area of Da Nang because Agent Orange binds to organic matter (does not dissolve in water) and is degraded in daylight within a few minutes. Also, a study on the desalinization of sea water for drinking aboard ships found no evidence of significant Agent Orange in that water. (There is no evidence in this case that DDG 16 even used desalinated water from Da Nang harbor). There is no evidence from the August 2012 discussion from which it can be concluded that it is at least as likely as not that the Veteran was actually exposed to Agent Orange while onboard DDG 16. Next, a December 2006 private progress note (found on Virtual VA) contains an assessment of Agent Orange exposure and recommends counseling for it. Also, in June 2008, the Veteran reported to a VA readjustment counselor that on numerous occasions he came into contact with defoliants while in Da Nang Harbor. However, neither of these records provides a reasonable basis to conclude that it is at least as likely as not that the Veteran was exposed to Agent Orange during the Vietnam Era. Apparently, these reports merely record speculative history provided by the Veteran at the times mentioned. It is not shown that the Veteran was competent to opine as to the scientific nature or composition of anything he was exposed to in Vietnam. Without any competent and verifiable or otherwise satisfactory information from him or anyone else to show that he was actually exposed to Agent Orange while aboard DDG 16, and with the accepted specific background information being that he was only on DDG 16 while it was anchored in Da Nang Harbor, without docking, and never set foot on land in Vietnam, and considering the information provided in the August 2012 communications between RO and central office personnel concerning Agent Orange in Vietnam, there is no reasonable basis to conclude that the Veteran was actually exposed to Agent Orange during his period of service in Vietnam. Accordingly, the Board finds that it is not at least as likely as not that the Veteran was exposed to Agent Orange in service based on the December 2006 and June 2008 records. Accordingly, presumptive service connection for diabetes mellitus is not warranted since actual Agent Orange exposure is not shown. As service connection has not been granted for diabetes mellitus, service connection for kidney disease as secondary to it cannot be granted, as a matter of law. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). In closing, the Board directs the Appellant's attention to the fact that certain legislation has been introduced in the Congress which, if enacted, may change certain provisions of the presumption of herbicide exposure. It is suggested that the Appellant monitor the progress of such legislation. ORDER Service connection for diabetes mellitus and kidney disease is not warranted. The appeal is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs