Citation Nr: 1341967	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  10-33 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type 2, due to herbicide exposure.  

2.  Entitlement to service connection for hypertension to include as secondary to diabetes mellitus, type 2.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. Honan, Associate Counsel


INTRODUCTION

The Veteran, who is the Appellant, served on active duty in the Navy from September 1963 to September 1967 and in the Army from November 1990 to May 1991.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In January 2012, the Veteran was afforded a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

The claim of service connection for hypertension to include as secondary to diabetes mellitus, type 2, is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDING OF FACT

As the Veteran served on the U.S.S. Isle Royale, a ship that VA has recognized as having operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, he is presumed to have been exposed to certain herbicides, including Agent Orange, and there is a presumption of service connection for diabetes mellitus, type 2, for a Veteran presumably exposed to Agent Orange. 

CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, type 2, have been met.  38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 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. 

As the claim of service connection for diabetes mellitus, type 2, is favorable to the Veteran and is the only claim decided here, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 

Generally, to establish entitlement 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. All three elements must be proved.  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 as implemented in 38 C.F.R. § 3.303.






Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service.  This may be accomplished by affirmatively showing inception during service.  38 C.F.R. § 3.303(a). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 

A Veteran who, during active military 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 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.  38 U.S.C.A. § 1116.

"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, 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).  

If a Veteran is presumably exposed to Agent Orange under 38 U.S.C.A. § 1116, there is a presumption of service connection for diabetes mellitus, type 2.  38 C.F.R. §§ 3.307(a) and 3.309(e). 

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). 




Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible.  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Competency is distinguished from the credibility and the weight of admissible evidence, which are also factual determinations.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  

"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).  

Evidence

The Veteran seeks service connection for diabetes mellitus, type 2, due to exposure to Agent Orange.  The Veteran asserts that he was stationed on the U.S.S. Isle Royale and that he went ashore to Vietnam and was exposed to Agent Orange in January 1967.

In February 2007, the Veteran stated that, while in service, he was a boatswain mate and he delivered ammunition and troops by boat on the inland waterways of Vietnam.  In April 2007 and February 2009, he stated that he was in Vietnam from January 1967 until his ship moved to another area.  He reported being attached to a Marine unit that was stationed at the mouth of the Chu Lai River.  He recalled navigating up and down the Chu Lai River.  



In the Veteran's notice of disagreement, the Veteran stated that he went ashore to Vietnam to assist with salvage of the U.S.S. Mahnomen County.  He submitted photographs of the U.S.S. Mahnomen County and of the barracks in which he stayed onshore.  He also submitted statements from T. McWilliams, J. Jackson, D. Brasfield, and G. Lowell.  All four individuals attested to serving with the Veteran in Chu Lai, Vietnam to salvage the Mahnomen County.  T. McWilliams and D. Brasfield also referenced the Marine detachment located at Chu Lai, and attested to using their barracks and mess hall.

In January 2012, the Veteran testified about his experience ashore in Vietnam.  He stated that he was a boatswain mate, who transported personnel and supplies from ship to shore and on the Chu Lai River.  He stated that, at night, he stayed at the Marine base on shore.  

The Veteran's service records confirm that he was assigned to the U.S.S. Isle Royale from March 1964 to September 1967, which includes the period in question (i.e. January 1967).  The Veteran's service records also reflect that, in January 1967, he received the Vietnam Service Medal for service in direct support of military operation in Vietnam while attached to the U.S.S. Isle Royale.  The military occupational specialty listed on the Veteran's DD-214 Form is Boatswain Mate.     

Private treatment records indicate that the Veteran was diagnosed with diabetes mellitus, type 2, in 2006. 

The VA Adjudication Procedures Manual provides a list of ships that docked on the shores of the Republic of Vietnam or operated on its inland waterways in a document titled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents."  M21-1MR, Part III, Subpart iii, Chapter 2, § E.33.d.  This list was updated as of July 2013. 





The U.S.S. Isle Royale is listed under the category of "Ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore."  The VA document further states: "USS Isle Royale (AD-29) [Destroyer Tender-Repair Ship] salvaged the beached USS Mahnomen County (LST-912) at Chu Lai during January 1967 with crewmembers going ashore for stripping operations."

While the Joint Services Records Research Center (JSRRC) was unable to verify the Veteran's exposure to herbicides in July 2010, VA's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents was subsequently updated in 2012 with new information about the U.S.S. Isle Royale, and it confirmed that crewmembers went ashore.    

Further, the Board finds the Veteran's statements regarding his Vietnam experience to be credible.

As the Veteran was diagnosed with diabetes mellitus, type 2, in 2006 as diabetes mellitus, type 2, is one of the diseases listed in 38 C.F.R. § 3.309(e) to which herbicide exposure may be presumed where the Veteran is shown to have served in Vietnam, and as there is sufficient proof that the served on the U.S.S. Isle Royale and assisted with salvage operations ashore in Vietnam in January 1967, he is entitled to presumptive service connection for diabetes mellitus, type 2, due to exposure to Agent Orange.     


ORDER

Service connection for diabetes mellitus, type 2, is granted. 






REMAND

In a rating decision in June 2009, the RO denied service connection for hypertension.  In September 2009, the Veteran submitted a Notice of Disagreement.  As the RO has not yet issued a statement of the case, addressing hypertension, the claim must be remanded.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 

Accordingly, the case is REMANDED to the RO/AMC for the following action:

Furnish the Veteran and his representative a statement of the case on the denial of service connection for hypertension and adjudicate the claim of service connection for hypertension secondary to now service-connected diabetes mellitus, type 2.  In order to perfect an appeal of the claim, the Veteran must still timely file a substantive appeal.

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).

The 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).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs