Citation Nr: 1413549 Decision Date: 03/31/14 Archive Date: 04/08/14 DOCKET NO. 12-20 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Since this case was certified for appeal to the Board, additional potentially relevant evidence has been submitted by the Veteran; however, in January 2014, he waived initial RO review of this evidence. 38 C.F.R. § 20.1304 (2013). FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam or on its inland waterways. 2. The Veteran's diabetes mellitus did not have onset in service or within one year of service and was not caused by or otherwise related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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 United States Court of Appeals for the Federal Circuit (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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See 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 elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Diabetes mellitus is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 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. 38 C.F.R. § 3.303(d) (2013). Additionally, VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; early-onset 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), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2013); see also Final Rule, 78 Fed. Reg. 54,763 -65 (September 6, 2013). It is noted that veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307 (2013). Service in Vietnam means actual service in the country of Vietnam during the period from January 9, 1962, to May 7, 1975. Service in the waters offshore or service in other locations during the Vietnam period is considered service "in Vietnam" only if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) ; see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA interprets 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption, and that interpretation has been upheld by the Federal Circuit. Haas, 525 F.3d at 1193-94. A veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Id. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." As an appendix to that section of the M21-1MR, VA maintains a list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docking to the shore, and ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. The Veteran's service personnel records show that during his active service, he was assigned to the USS Cochrane (DDG-21) from September 1970 to August 1973, and classified as an interior communications electrician. However, there is nothing in his service personnel records to show that at any point he served on the landmass of Vietnam or its inland waterways. The National Personnel Records Center was unable to determine whether the Veteran had in-country service, but reported that the USS Cochrane repeatedly came within the official waters of the Republic of Vietnam between March 1971 and December 1972. Referral to the appendix of the M21-1MR found that the USS Cochrane was not listed among the list of ships which operated primarily or exclusively on Vietnam's inland waterways, ships which operated temporarily on Vietnam's inland waterways or docking to the shore, or ships which operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel found. VA Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." In an April 2009 statement, the Veteran's claimed that he was in Vietnam "Christmas 1970"; however, a review of the history of the USS Cochrane shows that it was undergoing an overhaul at Pearl Harbor Naval Shipyard at that time and did not deploy until February 1971. In his September 2010 notice of disagreement, he claimed that during a second deployment off the coast of Vietnam, he went on shore, but he failed to provide any specifics that might allow VA to corroborate his claim. In a December 2011 statement, he claimed that during periods when the USS Cochrane was at anchor in Da Nang Harbor, he went ashore as part of a group tasked with establishing ship to shore power and communications. He wrote, "I was awarded the Combat Action Ribbon as a result of being under consistent hostile enemy fire during the time frame of February to July 1971. I was going back and forth to the ship establishing communications during the time frame." While the Veteran's DD-214 does indicate receipt of a Combat Action Ribbon, research determined that the USS Cochrane was awarded the Combat Action Ribbon after it received shrapnel damage and holing topside from close air bursts in October 1972. Thus, the Veteran's statements, which imply that he received a Combat Action Ribbon after he personally came under fire while traveling to and from his ship to the shore are not substantiated. In a December 2012 brief, the Veteran's representative stated that the Veteran does in fact not allege that he set foot on land in the Republic of Vietnam. The Veteran's representative noted that the USS Cochrane docked in Da Nang Harbor in November 1972 to transfer the remains of a deceased crewman to the Da Nang naval station and has argued that being within the territorial waters of Vietnam should be considered synonymous with being in the inland waterways. Regarding the Veteran's various lay statements which attempt to establish he went ashore to the Republic of Vietnam, the Board finds that these are not credible. The Board notes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Here, the Veteran's accounts are not consistent with the known history of the USS Cochrane or with each other. In December 1970, when the Veteran first claimed he was in Vietnam, the USS Cochrane was undergoing an overhaul, and his account of how he earned his Combat Action Ribbon is inconsistent with the official account. Furthermore, the Veteran contradicted all his earlier assertions of in-country service in the December 2012 brief. In light of these inconsistencies, the Board must conclude that the Veteran is not a reliable historian concerning the circumstances of his service. The Board also rejects the argument that service in the territorial waters of Vietnam, such as in Da Nang Harbor, should be considered synonymous with service on the inland waterways of Vietnam. As noted above, "inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR (M21-1MR), M21-MR, pt. IV, subpt. ii, §1, ch. H, 28, "Considering Claims Based on Service Aboard Ships Offshore the RVN." Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, 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 herbicides. Evidence of shore docking is required in order to concede the possibility that the veteran's service involved duty or visitation in the [Republic of Vietnam]. M21-1 MR, pt. IV., subpt. ii., ch. 1, sec. h.28.h. The Federal Circuit has determined that because the term "served in the Republic of Vietnam" is ambiguous, VA's interpretation is entitled to deference. See Haas v. Peake, 525 F.3d 1168, 1193-94 (Fed. Cir. 2008). The Veteran's representative cites to a 2004 Board decision for support for his theory that Da Nang Harbor should be considered an inland waterway; however, "[a]lthough the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided." 38 C.F.R. § 20.1303. While this provision also suggests that "prior decisions in other appeals may be considered in a case," the Board is not bound by these decisions and must still decide a case "on the basis of the individual facts of the case in light of applicable procedure and substantive law." Id. Here, the Board is unpersuaded that a 10 year old case, decided before the holding in Haas, is relevant to the present matter. For all the above reasons, the Board finds that the Veteran is not entitled to service connection for diabetes mellitus on a presumptive basis, as the preponderance of the evidence is against a finding that the Veteran served within the landmass of the Republic of Vietnam or its inland waterways. Additionally, while an appellant is not precluded from establishing service connection with proof of actual direct causation, in the instant case, there is no evidence that the Veteran had diabetes mellitus in service or within one year of service and the Veteran has not presented any evidence suggesting a nexus between his current diabetes mellitus and his active service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). The Veteran's current disability was not diagnosed until decades after separation from service and his treatment providers have not suggested any relationship between the Veteran's diabetes mellitus and his active military service. Accordingly, entitlement to service connection for diabetes mellitus must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in June 2007 and February 2009 letters, prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, including service treatment records and service personnel records, and VA records treatment records have been obtained and associated with the claims file. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims (Court or Veterans Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the Veteran has argued that entitlement to service connection for diabetes mellitus should be granted on a presumptive basis, as he has claimed that he served in the Republic of Vietnam. He has not suggested that the suffered from diabetes mellitus in service or that there is any other relationship between his current disability and service. Accordingly, the Board finds that referral for a VA medical examination is not warranted. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs