Citation Nr: 1339702 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-09 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the U.S. Navy from October 1963 to August 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2010 and November 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office. FINDINGS OF FACT 1. The Veteran did not serve within the land borders, including the inland waters, of Vietnam during the Vietnam era and actual exposure to Agent Orange is not shown. 2. Ischemic heart disease was not affirmatively shown to have been present during service; ischemic heart disease was not manifested to a compensable degree within one year from the date of separation from service in August 1967; and ischemic heart disease, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. 3. Diabetes mellitus was not affirmatively shown to have been present during service; diabetes mellitus was not manifested to a compensable degree within one year from the date of separation from service in August 1967; and diabetes mellitus, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. Ischemic heart disease is not due to disease or injury that was incurred in or aggravated by service; ischemic heart disease may not be presumed to have been incurred in service; and the presumption of exposure to Agent Orange and the presumption of service connection due to exposure to Agent Orange does not apply. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Diabetes mellitus is not due to disease or injury that was incurred in or aggravated by service; ischemic heart disease may not be presumed to have been incurred in service; and the presumption of exposure to Agent Orange and the presumption of service connection due to exposure to Agent Orange does not apply. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letters, dated February 2010 and July 2010. The notices included the type of evidence needed to substantiate a claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service personnel and treatment records, VA records, and private medical records. The RO also obtained a command history of the USS INTREPID. The RO did not conduct a medical inquiry regarding the claims of service connection for ischemic heart disease and diabetes mellitus because there is no evidence that the claimed disabilities may be associated with an established injury or disease or event in service, and a VA medical examination or VA medical opinion is not required under 38 C.F.R. § 3.159(c)(4). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. For the showing of 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain disabilities, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112 and 1137; 38 C.F.R. §§ 3.30, 3.309. A Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain herbicides, including a herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. If a Veteran is presumably exposed to Agent Orange under, there is a presumption of service connection for ischemic heart disease and diabetes mellitus. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2, 725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). While the Veteran served on the USS INTREPID, service personnel records do not indicate the Veteran served in combat, therefore the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The Veteran's service personnel records show that the Veteran served on the USS INTREPID during the Vietnam era. The service treatment records do not contain any complaint finding history, symptom, treatment or diagnosis of ischemic heart disease or diabetes mellitus. After service, in 1997 the Veteran was diagnosed with ischemic heart disease. In 2007, the Veteran was diagnosed with diabetes mellitus, type 2. In 2010, the Veteran filed his claim for service connection for ischemic heart disease and diabetes mellitus, type 2. Service department records show that the USS INTREPID served in the official waters of the Republic of Vietnam. The Veteran asserts that he developed diabetes mellitus, type 2, due to exposure to Agent Orange. The Veteran states that he was exposed to Agent Orange while serving aboard the USS INTREPID, while the ship was deployed off of Vietnam in 1966. He contends that while aboard ship he was exposed to dioxin residue carried by the rain, wind, and other atmospheric currents. In support of his claim, the Veteran submitted a medical opinion from Dr. Steven Coenen, who stated that it was more likely than not that the Veteran was exposed to Agent Orange during service. Dr. Coenan based his opinion on the Veteran's benign family history of chronic disease, medical research linking Agent Orange exposure to the development of chronic diseases, and the Veteran's allegations that he was close enough to the Vietnam border to have been exposed to Agent Orange while aboard the USS INTREPID. Analysis A Veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). Service in the Republic of Vietnam includes other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam. 38 C.F.R. § 307(a)(6)(iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008). In order for the presumption of exposure to be extended to a Blue Water Navy Veteran, there must be evidence that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier. Haas, 525 F.3d 1168. The Veteran concedes that he never set foot on land in Vietnam, but maintains that he was incidentally exposed to dioxins carried by the rain, wind, and other atmospheric currents while serving aboard the USS INTREPID. The Veteran's argument that he was exposed to Agent Orange by the rain, wind, and other atmospheric currents was the same argument in Haas and the Federal Circuit upheld VA's interpretation that the argument did not establish exposure to Agent Orange under 38 U.S.C.A. § 1116. Also, after reviewing numerous official military documents, ships histories, deck logs, and other sources of information related to Navy ships during the Vietnam era, the Joint Services Records Research Center has not found any evidence to support exposure to Agent Orange aboard ship. See M21-1MR, Part IV, Subpart ii, 2.C.10. Although the Veteran has not asserted that the USS INTREPID served on the in-land waters of Vietnam, he has submitted a medical opinion from Dr. Coenen that it was at least as likely as not that the Veteran was exposed to Agent Orange. The opinion was based on the Veteran's statement that he was close enough to the Vietnam border to have been exposed to Agent Orange. The Veteran's statements do not establish exposure to Agent Orange. As opinion is based on inaccurate facts that the opinion has no probative value that the Veteran was exposed to Agent Orange. As there is no evidence or allegation that the USS INTREPID operated in the inland waterways of Vietnam or docked at a shore or pier in Vietnam, the Board finds that the Veteran was not exposed to Agent Orange while serving on the USS INTREPID and concludes that the Veteran was not exposed to Agent Orange during service and presumptive service connection for diabetes mellitus, type 2, or ischemic heart disease due to exposure to Agent Orange under 38 U.S.C.A. § 1116 is not warranted. On the basis of the service treatment records alone, in the absence of any complaint, finding, history, symptom, treatment, or diagnoses of diabetes mellitus or ischemic heart disease service connection under 38 U.S.C.A. § 1110 and § 1131 as implemented by 38 C.F.R. § 3.303(a) is not established. As there is no competent lay or medical evidence either contemporaneous with or after service that either diabetes mellitus or ischemic heart disease was observed during service, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection under 38 C.F.R. § 3.303(b) is not established. After service, both diabetes mellitus and ischemic heart disease were diagnosed well beyond the one-year presumptive period for chronic diseases following separation from service under 38 C.F.R. §§ 3.307 and 3.309. Thus, presumptive service connection for diabetes mellitus and ischemic heart disease as a chronic disease is not established. As the preponderance of the evidence is against the claims of service connection for of ischemic heart disease and for diabetes mellitus, there is no doubt to be resolved and service connection for ischemic heart disease and diabetes mellitus is not warranted. ORDER Service connection for ischemic heart disease is denied. Service connection for diabetes mellitus, type 2, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs