Citation Nr: 1336791 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-20 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board finds that a May 2006 communication from the Veteran can be liberally construed as a notice of disagreement with the March 2006 rating action. 38 C.F.R. § 20.201 (2013). In his May 2010 substantive appeal, the Veteran requested a video hearing with a Board judge. A hearing was scheduled in May 2011, but he failed to appear or notify VA of the need to reschedule. FINDINGS OF FACT The weight of the evidence is against a finding of in-country service in Vietnam, or any other exposure to herbicides during service, and there is no competent evidence otherwise linking the Veteran's current diabetes mellitus to active service. CONCLUSION OF LAW The criteria for an award of service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran made a claim for service connection for diabetes mellitus in January 2006. The RO denied service connection in April 2009. The Veteran appealed asserting that he was exposed to herbicides while serving on the USS Vesuvius. I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In January 2006 and February 2009, the RO sent letters to the Veteran providing him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). These letters were sent prior to initial adjudication of his claim for service connection. The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran's service personnel records were also obtained and considered. VA was not required to provide an examination in this case, because there is no evidence of an in-service incurrence or to suggest a causal relationship. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran provided additional evidence in support of his claim. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Analysis Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. To establish entitlement to service-connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides during such service. Further, certain diseases (including diabetes mellitus) will be presumed service-connected due to such exposure, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board will first address whether the Veteran is entitled to service connection on a direct, nonpresumptive basis. In this regard, it is acknowledged that a current diagnosis of diabetes mellitus is reflected in the record. See, e.g., January 2003 VA Medicine Clinic report. Turning to the Veteran's active service, there is no showing of elevated blood sugar or other manifestations during that time, nor was any diagnosis made in service. The post-service records reflect no relevant treatment until approximately 20 years after separation. The Veteran has not alleged an in-service onset of diabetes or continuous symptomatology since service and no competent medical evidence suggests any causal relationship between the current diabetes and active service. The Veteran himself is not competent to opine as to the etiology of his diabetes, as this requires knowledge beyond that capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, service connection cannot be granted on a direct, nonpresumptive basis. Next, addressing service connection on a presumptive basis, service records establish that the Veteran served in the Navy during the presumptive periods of the Vietnam conflict, as set forth above. However, the evidence indicates that he did not serve in the Republic of Vietnam, but instead was in the surrounding deep waters. Accordingly, the presumption for service connection based on herbicide exposure does not apply. See 38 C.F.R. §§ 3.307(a)(6); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Board recognizes that qualifying service in the Republic of Vietnam includes service on the inland waterways, but it does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d 1168; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. Although what constitutes "inland waterways" is not defined in VA regulations, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. This Manual states that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR (M21-1MR), pt. IV, subpt. ii, ch. 2, § C.10.k. However, the M21-1MR clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as the Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. Personnel records show that the Veteran was stationed on the USS Vesuvius from November 1964 to July 1966. The Veteran reported, and service records confirm, that the USS Vesuvius supported the war effort from the deep waters surrounding Vietnam, including Cam Rahn Bay. The Veteran contends that he was exposed to herbicides while serving on the USS Vesuvius in the Cam Rahn Bay between 1965 and 1966. The Veteran contends that Cam Rahn Bay should be considered an inland waterway because it receives watershed run off from a large amount of inland waterways. See Substantive Appeal May 2010. He asserts that Agent Orange was carried from the inland waterways to the Cam Rahn Bay where he was exposed. See id. However, in this case, application of the presumption is restricted by the law and VA procedures. The M21-1MR makes clear that service aboard a ship anchored in an open deep-water harbor, such as Cam Ranh Bay, is not qualifying service for the herbicide presumption. Although the Veteran is competent to report observations about the waterways during his service, the legal determination of qualifying service is decided by lawmakers. Moreover, VA has created a directory of ships that are known to be associated with service in Vietnam and exposure to herbicides. The list includes ships that operated primarily or exclusively on Vietnam's inland waterways, that operated temporarily on Vietnam's inland waterways or docked to the shore, and 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. The USS Vesuvius is not on this list. In so finding, the Board cites VA's Compensation and Service Bulletin, January 2010, Policy 211. A copy of a page containing this information is in the claims file- however, the copy in of record contains the following sentence after the listing of the ships for which the presumption would apply: "Also, Cam Rahn Bay is a qualifying location for "inland waterway" service." This sentence was highlighted by the Veteran as supporting his claim. However, upon review, the actual VA Bulletin does not contain that sentence. Thus, merely being anchored in Cam Rahn Bay does not entitle the Veteran to application of the herbicide presumption. Finally, there is no argument or indication that the Veteran disembarked the ship and physically set foot within the Republic of Vietnam. To the contrary, his service personnel records show no leave taken from the USS Vesuvius during the period in question. He has also made no such claim of physically entering the country. In summary, the preponderance of the evidence is against service connection for diabetes mellitus, to include on a presumptive basis. As such, the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for diabetes mellitus is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs