Citation Nr: 1331645 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 03-34 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a heart disability claimed as due to in-service exposure to herbicides. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to herbicides. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1958 to February 1962 and from November 1963 to August 1966. These matters come before the Board of Veterans' Appeals (Board) from a November 2002 rating decision and an August 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New Orleans, Louisiana. The matter of entitlement to service connection for a heart disability was before the Board in May 2008 when the Board remanded it, in January 2010 when the Board denied it, in November 2012 when the Board remanded it pursuant to a decision by the United States Court of Appeals for Veterans Claims (Court), and most recently in June 2013 when it was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the mandates of its remands. Historically, in a 1994 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a heart disability as due to herbicide exposure. The Veteran did not appeal the denial and it became final. In November 2002, the RO denied the Veteran's claim for entitlement to service connection for a heart disability claimed as aggravated by a service-connected disability. The November 2002 rating decision did not discuss whether new and material evidence had been received to reopen a final denial. The Veteran's claim has been before the Board on four prior occasions, and before the Court on one occasion. Neither the Board, nor the Court, has previously discussed whether the Veteran's claim should be considered a claim of whether new and material evidence has been received to reopen a final denial. In addition, the Veteran's attorney has not made any such contention. In the decision below, the Board finds that the Veteran is not a Nehmer class member; thus, new and material evidence would have had to have been received to readjudicate his claim. Nevertheless, as the RO and the Board have previously considered the Veteran's claim on the merits, he has not been prejudiced by a lack of VA first considering whether new and material evidence has been received. As discussed more fully in the Court's October 2011 decision and in the Board's prior remands in November 2012 and June 2013, the issue on appeal is limited to entitlement to service connection for ischemic heart disease as a presumptive disease under 38 C.F.R. § 3.309(e), with consideration of 38 C.F.R. § 3.816. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had service aboard the USS Yorktown offshore, in the open waters of the Republic of Vietnam during service. 2. There is no competent credible evidence of record that the Veteran was on the ground in Vietnam or on the inland waterways of Vietnam. 3. The competent credible evidence of record does not reflect that the Veteran was exposed to Agent Orange, or any other herbicide, in service. 4. A cardiovascular disorder was not present until many years after service and is not shown to be related to service. 5. In an unappealed April 2006 decision, the RO denied the Veteran's claim for entitlement to service connection for diabetes mellitus. 6. Evidence received since the April 2006 RO decision is new; however, it is not material because it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. A heart disability was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. Evidence received since the April 2006 RO decision which denied entitlement to service connection for diabetes mellitus, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006), Kent v. Nicholson, 20 Vet. App. 1 (2006). Notice was provided to the Veteran in February 2005, April 2006, May 2008, and August 2010. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains medical records, service treatment records (STRs), information on the Veteran's ship in service, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. VA is not required to provide a medical examination to a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). With regard to the issue of entitlement to service connection for a heart disability, the remaining issue before the Board is whether the Veteran is a Nehmer class member; thus, a VA examination is not necessary. (See October 2011 Court decision.) Moreover, the Board notes that there is no competent credible evidence of record which indicates that the Veteran's disability is related to service, other than claimed herbicide exposure; thus, a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App.79, 81 (2006) is not warranted. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria New and material evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Presumptive service connection- herbicide exposure - 38 C.F.R. § 3.309(e) VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2013). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, 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). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e) (2013). 38 C.F.R. § 3.816 In May 1989, the U.S. District Court for the Northern District of California voided all denials of Agent Orange claims based on a regulation that had became effective on September 25, 1985. Nehmer v. United States Veterans Admin, 712 F. Supp. at 1409 (Nehmer I). The District Court later clarified this ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid regulations. Nehmer v. United States Veterans Admin, 32 F. Supp. 2d at 1183 (Nehmer II). In May 1991, the government and Nehmer plaintiffs stipulated that VA would readjudicate any claim denials voided by the Nehmer I holding. Nehmer v. United States Veterans Admin., No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). Pursuant to 38 C.F.R. § 3.816, a Nehmer class member is defined to include a Vietnam veteran who has a covered disease or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816. A "covered herbicide disease" is defined by regulation as "a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002[,] pursuant to the Agent Orange Act of 1991." 38 C.F.R. §3.816(b)(2). In an April 2006 decision, the U.S. District Court for the Northern District of California held that the provisions of the Nehmer class action suit also applied to disability or death claims based on CLL, thus entitling those who met the eligibility requirements to claim retroactive benefits. Nehmer v. United States Veterans Admin., No. CV-86-6160 (N.D. Cal. Apr. 28, 2006); see 68 Fed. Reg. 59540 -59542 (Oct. 16, 2003). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Heart Disability In its October 2011 decision, the Court remanded the Veteran's claim for the Board to determine whether the Veteran is a Nehmer class member and therefore, entitled to have his claim readjudicated. The Board finds, for the reasons noted below, that he is not a Nehmer class member. By definition, if a case falls under Nehmer, it means that the first claim of service connection for the condition at issue was received before the condition was added to the list of herbicide-related disabilities. As a result, if a claim was received before the condition was added to 38 C.F.R. § 3.309(e), the case is a potential Nehmer case. The Nehmer Court has held that VA is required to readjudicate all cases in which VA previously denied a class member's claim of service connection for a new presumptive disease. Nehmer class members are Vietnam Veterans who served in-country and have a covered herbicide disease, or the surviving spouse, child, or parent of a Vietnam Veteran who died from a covered herbicide disease, and who have applied for or have been denied benefits for one of the three new presumptive conditions between September 25, 1985, (or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985) and the date the regulation for these conditions becomes effective. 38 C.F.R. § 3.313. As noted above, an essential element is that the Veteran had service in Vietnam. Veterans can establish proof of service in the Republic of Vietnam (RVN) if they served on land in Vietnam or the inland waterways. In the present, case, the Veteran did neither. The Veteran's first DD 214 (December 1958 to February 1962) reflects that he had two years, two months, and three days of foreign and/or sea service. It does not show service in Vietnam or receipt of any medals or awards reflecting such service. The Veteran's second DD 214 (November 1963 to August 1966) reflects that he served two years and 12 days of foreign and/or sea service. It also reflects that he was awarded the Vietnam Service Medal (VSM). It also shows service aboard the USS Yorktown. VA limits the presumption of exposure to herbicides to Veterans who served on the ground or on the inland waterways of Vietnam and excludes Veterans who served aboard ships operating on Vietnam's offshore waters. "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). Service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975. See VAOPGCPREC 27-97 (July 23, 1997). Since issuance of VAOPGCPREC 27-97, VA has reiterated its position that service in deep-water naval vessels (i.e. "Blue Water" service) offshore of Vietnam, as opposed to service aboard vessels in inland waterways of Vietnam (i.e. "Brown Water service") is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. The Board notes further that in January 2010 and June 2010, VA issued a document, "Compensation and Pension Bulletin" that listed information regarding vessels identified as traveling in the "brown waters" of the Republic of Vietnam. The Veteran's ship, the USS Yorktown, is not among those listed. The Board also notes that a February 2009 VA Compensation & Pension Service Bulletin, in pertinent part, indicates that if development provided evidence that a blue water Veteran served aboard a ship that docked on the shores of Vietnam and places the Veteran aboard the ship at that time, and the Veteran provides a statement that he went ashore, this will be sufficient evidence to establish a presumption of herbicide exposure. The bulletin clarifies that the evidence must indicate that the ship actually docked on shore, and that service aboard a ship anchored in an open deep-water harbor such as Da Nang is not the same as docking to the shore. Evidence of shore docking is required. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the Board's interpretation that, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. In that decision, the Federal Circuit reversed an earlier United States Court of Appeals for Veterans Claims ruling, in which the Court rejected VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) that required the service member's presence at some point on the landmass or the inland waters of Vietnam. The Veteran's STRs and service personnel records are negative for any service on land in Vietnam or in the inland waterways. The Veteran has stated, and the records confirm, that he served on the USS Yorktown in the waters near Vietnam in 1966. The USS Yorktown (CVS-10) is a carrier as evidenced by the "C" in the hull number. These types of ships are referred to as the "Blue Water" Navy because they operated on the blue-colored waters of the open ocean. In order for the presumption 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 and the Veteran went ashore. There is no such competent and credible evidence of record. The Veteran has not averred that the USS Yorktown docked on shore or that he went ashore. Moreover, there is no evidence of record of such service. The USS Yorktown is not listed by VA as a ship which operated primarily or exclusively on Vietnam's inland waterways. It is not listed by VA as a ship which operated temporarily on Vietnam's inland waterways or docking to shore. It is not listed by VA as a ship which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels went ashore regularly with supplies or personnel. In November 1991 and February 1994, the Veteran stated that he was on a ship in Vietnam. (See VA examination reports). He did not state that he had been on land. A December 1993 VA clinical record (Possible Exposure to Toxic Chemicals History and Physical Examination) reflects that the Veteran reported that he did not know how he was exposed to herbicides. He stated that "he was never on the land of Vietnam, that he was on a ship all the time." The record further reflects that the Veteran was "quizzed as to how far from land his ship was but he states that he doesn't know." He also stated that he did not personally handle Agent Orange and that his clothing was not contaminated by it. In a March 2006 statement, the Veteran stated that he served on the USS Yorktown in service, that it was domiciled in Vietnam, and that the ship stayed in Vietnam waters for most of the time because the Veteran "could always see the mainland of South Vietnam." In a statement dated in May 2006, the Veteran stated that he "was in the waters of Vietnam and was able to see land at various distances from the shore. The winds did blow the sprayed Agent Orange Herbicide into the direction of our ship all the time." In an October 2012 statement, the Veteran stated, in pertinent part, that "[d]uring the time that I served on the U.s.s. Yorktown, we performed shore patrols. The main purpose of the patrols was to protect the coast line and to ward off submarines. [ ] I do not know how close we were to shore but we were able to see land. [ ] We were also able to see Vietnamese sampans, which are small Vietnamese water vessels. This type of craft did not go very far out from shore. At night, we had to be careful not to run the sampans over as they were all around us in the water." A National Personnel Records Center (NPRC) response to a request for dates of the Veteran's service in Vietnam, dated in February 2011, reflects that "there is no evidence in this Veteran's file to substantiate any service in the Republic of Vietnam." A May 2009 memorandum from the U.S. Army and Joint Service Records Research Center (JSSRC) reflects that the JSRRC reviewed numerous official military documents, ship histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange during the Vietnam Era. The memorandum reflects that JSRRC has found no evidence that indicates that Navy or Coast Guard ships transported tactical herbicides from the United States to Vietnam or that ships operating off the coast of Vietnam used, stores, tested, or transported tactical herbicides. Additionally, JSRRC cannot 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. Another NPRC response to a request for dates of the Veteran's service in Vietnam, dated in February 2011, reflects that "we are unable to determine whether or not this veteran served in the Republic of Vietnam." It further noted that the Veteran served aboard the USS Yorktown (CVS-10) which was in the official waters of the Republic of Vietnam on several dates in 1966. It was noted that "the record provides no conclusive proof of in-country service." A written article from the Dictionary of American Naval Fighting Ships reflects that in February, March, and April [1965], the USS Yorktown conducted a series of special operations in the South China Sea in waters near Vietnam. It is negative for operations within the inland waterways. Notably, it uses the term "near" Vietnam as opposed to waters in Vietnam. Deck logs from the USS Yorktown are negative for any service on the inland waterways of Vietnam during the Veteran's service on the ship. An April 1965 Administrative remark reflects that the Veteran was authorized to wear the Armed Forces Expeditionary Medal and Ribbon for service in Vietnamese waters during the period February 9, 1965 through February 25, 1965 while aboard the USS Yorktown. The Veteran, while in the Navy, was authorized to wear the Vietnam Service Medal as a member of the USS Yorktown at Subic Bay, Philippines during the period February 25, 1966 through April 27, 1966. (See Administrative Remarks.) The Veteran's receipt of the VSM is not satisfactory proof that he served on land in Vietnam, or on the inland waterways, as opposed to the open waters, or blue-waters, of Vietnam. In sum, the competent credible evidence of record is against a finding that the Veteran had service on land in Vietnam, or in the inland waterways. Any statement by the Veteran that he had service on land or in the inland waterways of Vietnam is less than credible when considering the record as a whole, to include the deck logs, the Veteran's denial of having been on land, the Veteran's inability to state how close he was to shore, the history of the USS Yorktown, and the fact that the USS Yorktown was an aircraft carrier, which would not normally be on inland waterways. The Veteran's attorney has cited to a March 1994 RO decision to support a contention that the Veteran is entitled to the presumption of herbicide exposure. Historically, in a March 1994 rating decision, the RO denied entitlement to service connection for a heart disability as secondary to Agent Orange exposure. In that 1994 decision, the RO stated that the "Veteran's record indicates that he served in Vietnam; therefore, exposure to Agent Orange is conceded." The RO based its concession on the Veteran's receipt of the VSM. At the time of the 1994 decision, the M21-1 allowed for concession of service in Vietnam, if the Veteran was in receipt of the VSM. In February 2002, the M21-1 was amended to read: "The fact that a veteran has been awarded the Vietnam Service Medal does not prove that he or she was 'in country.' Service members who were stationed on ships offshore, or who flew missions over Vietnam, but never set foot in country were sometimes awarded the Vietnam Service Medal." M21-1, pt. III, para. 4.24(e)(1)-(2), change 88 (Feb. 27, 2002). The Manual M21-1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation. 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007). As noted by the Court in Haas v. Peake, 525 F.3d 1168 (2008), the provisions of the M21-1 "did not set forth a firm legal test for 'service in the Republic of Vietnam,' but simply provided guidance as to how an adjudicator should go about gathering information necessary to determine whether the regulatory test had been satisfied. As such, the Manual provided reasonably easily applied guidance for adjudicators in an effort to obtain consistency of outcome; it did not define the boundaries of the DVA's legal responsibility with precision." In the present case, the Board is not bound by the RO's concession in 1994 that the Veteran had exposure to herbicide. The Board's adjudication of whether the Veteran is entitled to service connection for a heart disability is de novo. Thus, the Board is not bound by the findings of the RO. In addition, the Board notes that even under the pre-2002 change to the M21-1, VA would not have to concede that the Veteran had service in Vietnam merely because he had receipt of the VSM. As noted by the prior M21-1, "[i]n the absence of contradictory evidence, "service in Vietnam" will be conceded if the records [sic] shows that the veteran received the Vietnam Service Medal." In the present case, there is contradictory evidence that shows that the Veteran did not have service in Vietnam. As noted above, the Veteran admitted, in December 1993, that he was never on land in Vietnam. Moreover, the deck logs reflect that the USS Yorktown was not on the inland waterways. In addition, the Veteran's statements and the written article noted above, reflect service near the coast of Vietnam, not the inland waterways. In sum, the Veteran did not serve on land in Vietnam, did not serve on the inland waterways of Vietnam, did not have known exposure to herbicide agents, and is not entitled to the presumption of exposure to herbicides. His receipt of the VSM for his service in the open waters does not require VA to concede any exposure. The Board also notes that the Veteran has not been prejudiced by an "unfair surprise" because VA no longer concedes service in Vietnam, in the absence of contradictory evidence, merely because of receipt of the VSM. When the Veteran filed his claim for a heart disability in 2001, he contended that it was secondary to a skin disability. Heart disabilities were not added to the presumptive list of diseases under 38 C.F.R. § 3.309(e) until 2010. At that time, the M21-1's change with regard to the VSM had already been in effect for eight years. In a statement dated in May 2006, the Veteran stated that the "winds did blow the sprayed Agent Orange Herbicide into the direction of our ship all the time." The Veteran has not been shown to have the expertise, training, or education necessary to make a competent finding that winds blew Agent Orange from Vietnam onto him while he was on a ship. The Board finds that there is no competent credible evidence of such exposure, and such exposure is not presumed under VA policy. VA has not found that there is sufficient evidence that herbicides used during the Vietnam Era could have been blown by the wind into the ocean and resulted in any significant risk of herbicide exposure. (See 73 Fed. Reg. 20,363, 20,364 (Apr. 15, 2008)). Not only is the Veteran not competent to make such a statement, any such statement is less than credible when given his statement in 1993 that he did not know how he was exposed but that herbicides could have floated in the water. The Veteran's contention that perhaps he was exposed to Agent Orange from wind is mere speculation and thus, is insufficient to warrant service connection. In addition, the speculation that somehow the herbicides may have floated in water and reached his body when he had service aboard an aircraft carrier is likewise too speculative for service connection. Although the Veteran has stated that, while on ship, he was within sight of the shore of Vietnam, such a statement is not sufficient evidence that he was actually exposed to herbicides so as to invoke application of the presumption of service connection. While some of the clinical records (e.g. May 2005 and April 2008) reflect that the Veteran has reported some service in Vietnam, the overwhelming competent and credible evidence is against such a finding. The Veteran did not serve on land in Vietnam, did not serve on the inland waterways of Vietnam, did not have known exposure to herbicide agents, and is not entitled to the presumption of exposure to herbicides. His receipt of the VSM for his service in the open waters does not require VA to consider any exposure, and the Board does not do so. Considering the Veteran's statements as to his location, the STRs, and the history of the USS Yorktown, the Board finds that the evidence is against a finding that the Veteran was exposed to herbicides in service. Thus, service connection is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Diabetes Mellitus Historically, the appellant's claim for entitlement to service connection for diabetes was denied by the RO in an April 2006 rating decision. The appellant did not appeal the decision and it became final. Evidence of record at time of last final denial At the time of the 2006 RO denial, the evidence of record consisted of the Veteran's DD 214s, his STRs, and medical records. As noted above, the Veteran's first DD 214 (December 1958 to February 1962) reflects that he had two years, two months, and three days of foreign and/or sea service. It does not show service in Vietnam or receipt of any medals or awards reflecting such service. The Veteran's second DD 214 (November 1963 to August 1966) reflects that he served two years and 12 days of foreign and/or sea service. It also reflects that he was awarded the Vietnam Service Medal. It also shows service aboard the USS Yorktown. The Veteran's November 1965 report of medical examination for extension of enlistment purposes reflects that a urinalysis of his urine was negative for sugar. The Veteran's July 1966 report of medical examination for discharge purposes reflects that a urinalysis of his urine was again negative for sugar. Post service handwritten notations dated May 24, 1984 reflect that glucose tolerance testing was negative November 1991 and February 1994 VA examination reports reflect that the Veteran stated that he was on a ship in Vietnam. A 1994 RO decision denied the Veteran's claim for entitlement to service connection for a heart disability, but conceded based on the Veteran's receipt of the VSM, that he had service in Vietnam. VA records in 1999 reflect that the Veteran was obese and he was informed of the importance of diet and exercise. The records are negative for any diagnosis of diabetes. An April 1999 report reflects that there was no diabetes. An August 1999 VA record reflects that results of the Veteran's urine were negative for glucose. March 2003 VA medical records reflect that a diabetic diet, exercise, and weight reduction were discussed with the Veteran. March 2003 records also reflect that "diabetes mellitus is not a current/active problem for this patient." The March 2006 statement by the Veteran that he served on the USS Yorktown in service, that it was domiciled in Vietnam, and that the ship stayed in Vietnam waters for most of the time because the Veteran "could always see the mainland of South Vietnam" was also of record. Evidence of record since the last final denial The evidence added since the last final denial includes statements of the Veteran. As noted above, a December 1993 VA clinical record (Possible exposure to toxic chemicals history and physical examination) reflects that the Veteran stated "that he was never on the land of Vietnam, that he was on a ship all the time." The record further reflects that the Veteran was "quizzed as to how far from land his ship was but he states that he doesn't know." He also stated that he did not personally handle Agent Orange and that his clothing was not contaminated by it. The above noted May 2006, and October 2012 statements by the Veteran with regard to his service in the water have also been added to the record. The above noted NPRC and JSSRC documents with regard to a lack of verification of the Veteran's service in Vietnam or exposure to herbicides have also been added to the record. The Dictionary of American Naval Fighting Ships excerpt noted above, and deck logs from the USS Yorktown which are negative for service on the inland waterways have also been added to the record. Clinical records which reflect that the Veteran has been treated for his diabetes are also of record. Old and new evidence of record considered as a whole The Board finds that none of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for diabetes mellitus. The Board is mindful of the Court's decision in Shade v. Shinseki, 24 Vet. App. 110 (2010); however, even given the low threshold to reopen a claim, the Board finds that this threshold has not been met. The newly received documents are not material as they do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The Veteran is attempting to obtain service connection for diabetes mellitus based on a presumption of herbicide exposure; however the newly received evidence does not raise a reasonably possibility that the Veteran served on land in Vietnam, in the inland waterways of Vietnam; thus, he is not entitled to the presumption of herbicide exposure. Moreover, the newly received evidence does not raise the reasonable possibility that he was exposed to herbicides in service in some other manner. In addition, it does not raise the reasonable possibility that his diabetes is related to service, other than herbicides, or that it was aggravated by service. The evidence does not reflect diabetes within one year of service, nor is there a clinical opinion that relates his diabetes to service. Accordingly, the Board concludes that evidence has not been received which is new and material, and the claim for service connection for diabetes mellitus is not reopened. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for heart disability as due to in-service exposure to herbicides is denied. As new and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes, to include as due to in-service exposure to herbicides, the appeal is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs