Citation Nr: 1510841	
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  10-31 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Gordon, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from September 1969 to September 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In a June 2010 letter, the Veteran, through his representative, requested to testify before an RO decision review officer (DRO).  The Veteran was afforded the DRO hearing in October 2010.  A hearing transcript is of record.  At the same time, the Veteran requested a Travel Board hearing in his June 2010 substantive appeal.  He withdrew his request in October 2011.

In addition to the paper claims file, there is a Virtual VA and VBMS (the Veterans Benefits Management System) paperless claims file associated with the Veteran's claims.  The documents in these files have been reviewed and considered as part of this appeal.


FINDINGS OF FACT

1. It is not shown that the Veteran served in the Republic of Vietnam or was exposed to an herbicide agent during active military service.
 
2. Diabetes mellitus, type II, was not manifest in service or within one year of separation, and is not attributable to the Veteran's active military service.


CONCLUSION OF LAW

The Veteran does not have diabetes mellitus, type II, that is the result of disease or injury incurred in or aggravated by active military service; diabetes mellitus, type II, may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2013); 38 C.F.R. §§ 3.159, 3.326 (2014). 

When VA receives a complete or substantially complete application for benefits, it will notify the Veteran of (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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must also provide the Veteran with information regarding how VA determines effective dates and disability ratings are determined.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letters in February 2009 and April 2009, which notified the Veteran of how to substantiate his claim for service connection for diabetes mellitus, type II.  The letter also provided information regarding the allocation of responsibility between the Veteran and VA and information on how VA determines effective dates and disability ratings.  The Board finds that VA has fulfilled its duty to notify.

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, available post-service treatment records, literature, and lay statements have been associated with the record. 
As discussed below, the record does not establish any in-service occurrence that could have resulted in the Veteran's diabetes mellitus, type II.  Therefore, VA medical examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA examination is necessary when there is competent evidence of a current disability; establishment of an in-service event, injury or disease; and indication that the current disability may be associated with an in-service event).

Because there is no indication in the record that any additional evidence pertinent to the claims is available and unassociated with the file, the Board concludes VA has satisfied its duty to assist.

Law and Regulations

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If on the other hand a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  Showing continuity of symptomatology since service under 38 C.F.R. § 3.303(b) is an alternative means of linking the currently-claimed disability to service, but is only available for the "chronic diseases" specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

These "chronic diseases", per se, include diabetes mellitus, and will be presumed to have been incurred in service if manifested to a compensable degree of at least  10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).
Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing entitlement to direct service connection generally requires having: (1) competent and credible evidence confirming the Veteran currently has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability, which is the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A Veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975 (Vietnam Era), will be presumed to have been exposed to herbicides.  38 C.F.R. 	          §§ 3.307(a)(6), 3.309(e).  For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6).  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 Vietnam Era.

"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.  The presumption requires that a Veteran actually stepped foot on land in Vietnam or served in the inland waterways, not just on a ship off the coast or shore of Vietnam (brown water versus blue water). Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding the interpretation of governing law that service in the offshore waters of Vietnam without temporary duty or visitation on land, even where the claimant was the recipient of the Vietnam Service Medal (VSM), was insufficient to warrant application of the presumption of herbicide exposure).  See also VAOPGCPREC 27-97.

A Veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service.  Id.  Since issuance of that General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases.  66 Fed. Reg. 23166 (May 8, 2001). What constitutes "inland waterways" is not defined in VA regulations; however, VA Adjudication Procedure Manual provides interpretive guidance.  The Manual indicates that 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, pt. IV, subpt. ii, ch. 2, § C.10.k. However, the Manual clearly states that service aboard a ship that merely 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 to establish presumptive exposure to herbicides.  Id.  The Manual does note an exception regarding Veterans who served as a coxswain.

Despite this, it has been established that some offshore U.S. Navy and Coast Guard ships also operated temporarily on Vietnam's inland waterways or docked to the shore; and, certain ships operated primarily on the inland waterways rather than offshore.  Veterans who served aboard these ships qualify for the presumption of herbicide exposure.  Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" navy because they operated on the blue-colored waters of the open ocean.  Although some Blue Water Navy destroyers were involved with enemy interdiction, the majority of those operations were conducted by smaller vessels based along the coast or within the river systems of South Vietnam.  These vessels are collectively referred to as the "Brown Water" navy because they operated on the muddy, brown-colored inland waterways of Vietnam.  In general, patrolling of close coastal waters and the larger rivers was conducted by 50-foot swift boats while patrolling of smaller rivers and waterways was carried out by 30-foot river patrol boats. 
Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area.  Following these temporary inland waterway operations, destroyers would return to patrolling the offshore gun line or travel farther out to sea for aircraft carrier escort duty.  A number of Blue Water Navy amphibious assault and supply vessels also periodically entered inland waterways to deliver troops for combat missions or supplies for units stationed on the rivers.  See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension (C&P) Service).

In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy Veteran, development must provide 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.  In claims based on docking, a lay statement that the Veteran personally went ashore must be provided.  Although evidence that a Veteran's ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, to reiterate service merely aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient.  Open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau are considered extensions of ocean waters and not inland waterways.  They are not considered similar to the rivers, canals, and estuaries that make up the inland waterway system. Blue Water Navy ships occasionally entered these open water harbors and anchored temporarily without docking to take on fuel from harbor barges.  Sometimes ships would briefly anchor so that ranking officers could attend strategy meetings ashore. In such cases, a small board manned by a coxswain would usually ferry the officers ashore.  Deck logs and ship's histories will generally not provide names of personnel going ashore from anchorage.  However, evidence that a claimant served as a coxswain aboard a ship at anchorage, along with a statement from the Veteran of going ashore, may be sufficient to extend the presumption of exposure.  Id. 

The evidence must show that the ship actually docked on the shore and was not anchored in an open deep-water harbor such as Da Nang, Vung Tau, or Cam Ranh Bay. Evidence of shore docking is required.  See Veterans Benefits Administration (VBA) Fast Letter 10-37 (September 10, 2010).

In December 2008, VA C&P Service released policy on Vietnam Naval Operations. C&P Service initiated a program to collect data on Vietnam naval operations for the purpose of providing ROs with information to assist with development in Haas-related disability claims based on herbicide exposure from Navy Veterans. This particular policy statement provided further definition as to what constitutes Vietnam "Blue Water" versus "Brown Water" for the purpose of determining Agent Orange exposure.  It was determined that Da Nang Harbor and all other deep-water harbors along the Vietnam coastline were considered by C&P Service to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam.  Ultimately, VA considers open deep-water coastal harbors, such as those at Da Nang, Cam Ranh Bay, and Vung Tau to be part of the offshore blue water of Vietnam and not part of its inland waterway.  See December 2008 C&P Service Bulletin. 

The Board also notes that a February 2009 C&P 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.  See February 2009 C&P Service Bulletin.

A VA alphabetized list of ships indicates that the U.S.S. Cone, in terms of Vietnam service, was docked to the pier in Da Nang Harbor on December 11, 1972.  See http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp (Last updated January 2014).

The diseases listed in 38 C.F.R. § 3.309(e) that are presumptively associated with Agent Orange exposure are: chloracne or other acneform diseases consistent with chloracne, Type 2 ("adult-onset") diabetes, Hodgkin's disease, 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), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.  These diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of the disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. 	 § 3.307(d) are also satisfied.  38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. § 3.309(e).

VA regulations specify that the last date on which 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.  38 C.F.R. § 3.307(a)(6)(iii).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 41,442 -41,449, and 61 Fed. Reg. 57,586 -57,589 (1996).  This does not, however, preclude a claimant from establishing his entitlement to service connection for disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). Indeed, in McCartt v. West, 12 Vet. App. 164, 167 (1999), the Court clarified that the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange.

Analysis

The Veteran does not contend that his diabetes mellitus is directly related to service or that the disease had its onset in the first post-service year.  Rather, it is the Veteran's contention that service connection for his diabetes mellitus is warranted presumptively based on his service aboard a Navy ship during the Vietnam Era.  See generally 38 C.F.R. §§ 3.307, 3.309(e).

After a review of all the evidence, lay and medical, the Board finds that the Veteran did not have "service in the Republic of Vietnam," was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service.  Service records show that the Veteran served aboard the U.S.S. Cone (DD-866).  He is alleging exposure to herbicides during the Vietnam Era while aboard the Navy ship off the coast of Vietnam. The U.S.S. Cone was docked to the pier in Da Nang Harbor on December 11, 1972 according to the list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents.  Records and deck logs indicate that the Veteran was aboard the U.S.S. Cone at that time. The Veteran, however, has consistently denied going ashore or having any type of visitation in the Republic of Vietnam.  In fact, at his October 2010 DRO hearing, he testified that he "did not get off the ship, [but thought] maybe [his] captain got off."  The Veteran further testified that he was located "on the side of the ship...offshore."  He specifically alleged that the U.S.S. Cone "docked at Da Nang Harbor during his time aboard, and regularly was within 100 yards from the Vietnam shore; thus exposing him to herbicide agent."  

As stated, the docking requirement is satisfied.  Most saliently, however, the Veteran did not set foot on the landmass of Vietnam.  The fact that he did not go ashore precludes benefits based on a presumptive exposure to herbicides.  VBA Training Letter 10-06. 

The Veteran's assertions regarding herbicide exposure are speculative and without a factual basis.  The Veteran testified to an incident when the crane of the ship was onshore and then proceeded to remove a damaged helicopter off of the ship.  He also testified to witnessing maneuvers next to the shoreline.  The Veteran is not competent to provide evidence regarding exposure to herbicides based upon, for example, the contents of the air he was breathing, including to establish the fact that the air contained herbicides such as Agent Orange.  Any such assertion is unsupported by any factual indicia to show herbicides in the air within the alleged 100 yards of, or in close proximity to the Veteran.

The evidence of record contains literature regarding details of the U.S.S. Cone's ship operations.  However, these records do not contain evidence showing that the Veteran was ashore in the Republic of Vietnam.

The Board also notes the Veteran's submission of other Veterans' Board decisions, whose ships also anchored in Da Nang, granting presumptive service connection for diabetes.  However, by law, Board decisions are nonprecedential and are not binding on subsequent Board decisions.  Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.  See 38 C.F.R. 
§ 20.1303 (2014).  Unfortunately, the several Board decisions submitted by the Veteran in this appeal do not add support to a presumption of Agent Orange for the Veteran.

The criteria for a veteran to be seen as having had "service in the Republic of Vietnam" are clearly defined, and in the absence of being present on land or in the inland waters, there is no "service in the Republic of Vietnam" for VA compensation purposes.  In conclusion, the Veteran did not have "service in the Republic of Vietnam."  38 C.F.R. § 3.307(a)(6)(iii).  As such, he is not entitled to presumptive service connection for the diseases listed in 38 C.F.R. § 3.309(e) to include diabetes mellitus.  For these reasons, the Board finds that service connection for diabetes mellitus type II on a presumptive basis as due to herbicide exposure is not warranted.  38 C.F.R. §§ 3.307, 3.309(e).
The Board next finds that the Veteran did not sustain an injury or disease of the endocrine system in service, and did not experience chronic symptoms of diabetes mellitus in service.  The service treatment records do not show treatment for or symptoms consistent with diabetes mellitus.

The evidence also shows that symptoms of diabetes mellitus were not continuous after service separation, and did not manifest until nearly 33 years after service separation.  See September 2006 Antrim County VA Physician Statement; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised).  There is no post-service medical evidence dated before 2006, and the post-service medical evidence does not show diabetes mellitus until that time.  In fact, the Veteran testified to first being diagnosed with diabetes in "2006 when [he] filed his claim."  The Veteran has not alleged that symptoms of diabetes mellitus began in service or even in the first post-service year.

Furthermore, as there is no evidence of diabetes mellitus, including to a compensable degree, within a year of the Veteran's separation from service, the presumptive provisions for the chronic disability of diabetes mellitus manifesting within one year of service do not apply.  Because the Veteran's diabetes mellitus manifested approximately three decades after service rather than during the first post-service year, service connection for diabetes mellitus on a presumptive basis as a chronic disability is not warranted.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). 

The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed diabetes mellitus is not etiologically related to service.  There is no competent evidence of a nexus between diabetes mellitus and service; indeed, there is not an in-service injury, disease, or event, including the claimed herbicide exposure, to which currently diagnosed diabetes mellitus could be related to service by medical opinion.

Because there is no evidence of in-service injury or disease of the endocrine system, no presumed or actual exposure to herbicides during service, no chronic symptoms of diabetes mellitus in service, no continuous symptoms of diabetes mellitus since service, and no competent evidence of a nexus between diabetes mellitus and service, the criteria for direct service connection for the Veteran's diabetes mellitus have not been met.  38 C.F.R. § 3.303; Shedden, supra; see also Maxson, 230 F.3d at 1333.  Because the Veteran did not have service in the Republic of Vietnam, and was not otherwise shown factually to have been exposed to herbicides in service, the presumptive service connection provisions for diabetes mellitus based on herbicide exposure are not met.  Because diabetes mellitus did not manifest to a compensable degree within one year of service separation, the presumptive service connection provisions for diabetes mellitus as a "chronic" disease are not met. 

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, including as due to claimed herbicide exposure, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for diabetes mellitus type II is denied.



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs