Citation Nr: 1338916 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-18 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to exposure to herbicides (Agent Orange). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from October 1961 to October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona, which denied service connection for diabetes mellitus. In March 2010, the Veteran testified at a hearing before the Judge. A transcript of the hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). Service connection may be granted on a presumptive basis for certain chronic diseases, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2013), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2013). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). "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(a)(6)(iii) (2013). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975 in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. (2008), the Federal Circuit held that VA's interpretation of the phrase "served in the Republic of Vietnam," to the effect that a veteran must set foot on Vietnamese soil, was entitled to deference by the courts. In this case, the Veteran has been diagnosed as having diabetes mellitus. He contends that even in the absence of service in Vietnam, he was exposed to Agent Orange through ingesting water that used on board for drinking and washing, which was not properly filtered, due to lack of fresh water. The Veteran served in the Navy aboard the U.S.S. Preble, a plane guard destroyer ship which conducted special operations in the South China Sea and Gulf of Tonkin. In his written statements and hearing testimony, the Veteran conceded that he did not go on land in Vietnam but believes he was nevertheless exposed to Agent Orange during his service. He contends that his ship traveled through the Mekong Delta because he saw land one night and noticed the speed of the ship was different, but the Veteran alleges there is no record of these movements because his ship sometimes went on secret missions. No Department of Defense records, or requests to the U.S. Army and Joint Services Records Research Center could verify this information. Deck logs verify that the ship anchored in Da Nang harbor on August 25, 1965 for approximately four and a half hours, but that there is no indication any personnel went ashore or that any small boat operations were conducted. The Veteran has denied that he ever set foot in Vietnam, and there is no other evidence of record suggesting that he did. A January 2010 Compensation and Pension Bulletin lists information regarding vessels identified as traveling in the "brown waters" of Vietnam. The U.S.S. Preble, the Veteran's ship, is not among those listed. During the July 2013, hearing the Veteran indicated that he was diagnosed with diabetes in 2004 by a Dr. Sobel. He also stated that is he currently is treated by a Dr. Marshall for his diabetes. Even if the Board is unable to find that the Veteran is afforded the presumption of herbicide exposure, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As such, the Veteran's private treatment records would be pertinent to his claim. Because VA is on notice that there are records that may be applicable to the Veteran's claim for service connection, and because these records may be of use in deciding the claim, appropriate efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(1) (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding diabetes private treatment records, using any necessary assistance from the Veteran obtain these records. Ask the Veteran to submitted written authorization for VA to obtain private medical records pertaining to his diabetes. All efforts to secure these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 2. Then readjudicate the Veteran's claims in light of any additional evidence obtained. If benefits are not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them time to respond before the case is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).