Citation Nr: 1340532 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-28 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from September 1970 to December 1977. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which denied entitlement to service connection for type II diabetes mellitus. The Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran later cancelled this hearing, and has not requested that a new hearing be scheduled. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against finding that the USS Reeves operated on the inland waterways of Vietnam at any time during the Veteran's service on that ship, that he otherwise served in or visited the Republic of Vietnam, or that he was otherwise exposed to herbicides in service; therefore, exposure to herbicides may not be presumed. 2. The preponderance of competent and credible evidence weighs against finding that type 2 diabetes mellitus was demonstrated in-service, that type 2 diabetes mellitus was compensably disabling within a year of separation from active duty, or that there is a nexus between a current diagnosis of type 2 diabetes mellitus and service. CONCLUSION OF LAW Diabetes mellitus was not incurred or aggravated while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a February 2009 letter, prior to the date of the issuance of the appealed March 2009 rating decision. The February 2009 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed diabetes mellitus disability. However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. As will be addressed below, the service treatment and personnel records as well as the response from the United States Army and Joint Services Records Research Center (JSRRC) and the statements of the Veteran show that while he served in the official waters of the Republic of Vietnam, he did not serve in the land mass of the Republic of Vietnam, to include the inland waterways of that country. The records do not corroborate the assertion that he was otherwise exposed to herbicides. His service treatment records do not show that he had symptoms or a diagnosis of diabetes mellitus in service. In light of the lack of competent medical evidence showing that diabetes mellitus or signs and symptoms of that disability may be associated with active service, and in light of the lack of competent and credible evidence that the Veteran was ever in the Republic of Vietnam during his service, there is no reason for VA to provide an examination or obtain an opinion in connection with this claim. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as diabetes mellitus is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection can be granted for certain diseases, including diabetes mellitus, if manifest to a degree of 10 percent or more within one year of separation from active service. Such diseases shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 Supp. 2012); 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 in 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). "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), the United States Court of Appeals for the Federal Circuit upheld VA's requirement that a Veteran must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C.A. § 1116(a) (1) and 38 C.F.R. § 3.307(a) (6) (iii). Factual Background and Analysis The Veteran contends that his current diabetes mellitus, type II, is the result of in-service exposure to an herbicidal agent. Specifically, the Veteran states that, while serving aboard the USS Reeves, he was within 10-25 miles of land and during long operations in Vietnam, there were several instances in which he witnessed aerial spraying of Agent Orange which was visible to him from the ship. Due to this proximity, the Veteran asserts that he was exposed to Agent Orange during his active duty service, and that such exposure caused his current diabetes mellitus, type II. Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for diabetes mellitus is not warranted. The evidence of record demonstrates that the Veteran served aboard the USS Reeves which operated in the waters off the coast of the Republic of Vietnam which included aircraft carrier escort duty at Yankee Station in the northern Gulf of Tonkin. The Board notes that "Yankee Station" was a point in the Gulf of Tonkin off the coast of the Republic of Vietnam used by U.S. Navy aircraft carriers to launch air strikes during the Vietnam era. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed. R. Evid. 201 (b) that courts may take judicial notice of facts not subject to reasonable dispute). In this respect, service onboard a "blue water" naval vessel off the coast of Vietnam is not sufficient to establish presumptive exposure to an herbicidal agent. See, Haas, 525 F.3d at 1197. Specifically, service aboard a ship that anchored in an open, deep-water harbor, such as Danang, Vung Tau, or Cam Ranh Bay, along the Republic of Vietnam coast does not constitute inland waterway service or qualify as docking, and is not sufficient to establish presumptive exposure to an herbicidal agent. The evidence of record indicates that while the Veteran served aboard the USS Reeves which was briefly anchored in the deep water harbor of Danang, it did not dock at Danang Harbor. Thus, despite serving on the USS Reeves, there is no evidence that the Veteran was present within the land borders of Vietnam at some point in the course of his military duty. Further, in a May 2009 memorandum, the JSRRC indicated that it could provide no evidence to support the Veteran's claim of exposure to tactical herbicide agents while serving aboard a ship during the Vietnam era. The JSRRC noted that there was no evidence that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested or transported tactical herbicides. Additionally, the JSRRC could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The service treatment and personnel records as well as the response from the JSRRC and the statements of the Veteran show that while the Veteran served in the official waters of the Republic of Vietnam, he did not serve in the land mass of the Republic of Vietnam, to include the inland waterways of that country. The records do not corroborate the assertion that he was otherwise exposed to herbicides. Accordingly, the Veteran is not entitled to presumptive service connection for diabetes mellitus. Although the Veteran has not been shown to warrant a regulatory presumption of service connection for his type 2 diabetes mellitus as a result of in-service herbicide exposure, his claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). In this case, it is undisputed that the Veteran has a diagnosis of type 2 diabetes mellitus as evidenced by the VA treatment and private treatment records. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran's service treatment records are negative for any finding, complaints, or treatment related to type 2 diabetes mellitus and there are no indications in the record of any such problem or diagnosis before January 2004. Because the diabetes mellitus was not medically shown to have manifested to a compensable degree within the first post service year, there is no rebuttable presumption of service incurrence afforded to certain chronic diseases, to include diabetes mellitus. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board also points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is strong evidence against a finding of any continuity of symptomatology and against his claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Veteran had no in-service evidence of a diabetes mellitus disability and there is no credible evidence of exposure to herbicides in service. Furthermore, the Veteran has not contended and the claims file does not contain any evidence that a competent medical professional has otherwise linked the Veteran's current type II diabetes mellitus to his military service. Thus, service connection is not warranted. In reaching this conclusion, the Board has considered the lay evidence offered by the Veteran to VA. This includes his statements in which he asserted his belief that his claimed diabetes mellitus disability is related to his in-service herbicide exposure. To the extent that the Veteran himself contends that a medical relationship exists between his current claimed disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed diabetes mellitus disability and service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current diabetes mellitus disability and his service, to include as secondary to herbicide exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for diabetes mellitus must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs