Citation Nr: 1542540 Decision Date: 10/02/15 Archive Date: 10/13/15 DOCKET NO. 14-07 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for diabetes mellitus, type II, including as due to exposure to herbicides. 3. Entitlement to service connection for ischemic heart disease, including as due to exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active service from November 1967 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2011 and May 2012 from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In June 2015, the Veteran presented testimony relevant to the appeal at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2014, service connection for tinnitus was granted. This action constitutes a full grant of the benefits sought, and the claim for service connection for tinnitus is no longer open for appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not serve in country or on the inland waterways of the Republic of the Vietnam during the Vietnam era but served in the blue waters off the coast of Vietnam. 2. The Veteran was not exposed to herbicides in service. 3. No disease or chronic symptoms of diabetes mellitus type II were manifested during service or were continuously manifested in the years after service, and diabetes mellitus type II was not manifested to a degree of ten percent within one year of service separation. 4. Diabetes mellitus type II was diagnosed many years after service and there is no competent evidence that establishes that the diabetes mellitus type II is related to disease or injury in service. 5. No disease or chronic symptoms of ischemic heart disease were manifested during service or were continuously manifested in the years after service, and ischemic heart disease was not manifested to a degree of ten percent within one year of service separation. 6. Ischemic heart disease was diagnosed many years after service and there is no competent evidence that establishes that ischemic heart disease is related to disease or injury in service. 7. The Veteran's bilateral hearing loss is the result of military noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. Criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duty to Notify and Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With respect to the Veteran's claim, VA has met its duty to notify for this claim. The RO provided a notice letter to the Veteran in March 2011 and July 2011, before the initial adjudication of the claims, and in January 2012. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. All available service treatment records and personnel records were obtained. The RO contacted the National Personnel Records Center and the Defense Personnel Records Information Retrieval System (DPRIS) to obtain information as to whether the Veteran served in country in Vietnam. DPRIS summarized the command history of USS Ingersoll (DD-652). This summary is part of the record. The Veteran submitted private medical records in support of his claim. There is no identified relevant evidence that has not been obtained for review. A VA examination was not conducted for the service connection issue. However, such additional action is not warranted. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no competent evidence of an event, injury or disease in service. As discussed in detail below, the Board finds that the weight of the evidence shows that the Veteran was not exposed to herbicides in service and he did not serve in country in Vietnam. The service treatment records show no evidence of the claimed disorders. There is no indication of an association between the claimed disorders and service. Rather, the entirety of the Veteran's claim rests on his contention that he should be presumed to have been exposed to herbicides by virtue of the location of the vessel he served on. However, as discussed below, the Veteran is not found to be entitled to such a presumption. Therefore, the Board finds that a medical opinion or examination is not necessary. There is probative evidence establishing that the current disabilities manifested over 30 years after service and there is sufficient competent evidence on file for the Board to make a decision on the claims. Accordingly, a remand for the purpose of obtaining a medical opinion regarding the whether the Veteran's claimed disorder is etiologically related to service is not warranted. 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill duties to (1) fully explain the issue and (2) suggest the submission of evidence that may have been overlooked. At the June 2015 videoconference hearing, the Veteran was assisted by a representative. The undersigned VLJ fully explained the issue on appeal and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. 2. Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110. Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service. 38 C.F.R. § 3.303(d) (2014). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, diabetes mellitus and cardiovascular disease are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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 a disease noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus or cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Presumptive service connection on the basis of herbicide exposure is provided for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116(a). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected 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 such 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: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that an appellant is not precluded from establishing service connection with proof of actual 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). Of note, the presumption of herbicide exposure has been extended to the Crew members of the USS Ingersoll who were on Board the ship in 1965 when deck logs support a finding that the ship had service in the inland waterways of Vietnam. However, Congress has declined to extend this presumption to crew members, like the Veteran, who served on the Ingersoll after 1965. 3. Analysis for ischemic heart disease and diabetes mellitus The Veteran argues that his diabetes mellitus type II and ischemic heart disease are due to exposure to Agent Orange while serving during the Vietnam era. He contends that he was exposed to herbicides while serving aboard USS Ingersoll. He believes that the ship that he was on qualifies for Agent Orange exposure. He stated that the ship operated off the coast of Vietnam for gunfire support and interdiction of enemy vessels traveling along coastal waters. In an April 2011 statement, the Veteran stated that the ship was close to the beach and performed shelling support. He stated that he believed they announced that the ship was going up river once for fire support. However, he did not apparently actually know whether or not the ship went up river. In the February 2012 notice of disagreement, the Veteran asserted that he experienced secondary exposure to Agent Orange because USS Ingersoll was not decontaminated. However, it is noted that there has not ever been a finding that the USS Ingersoll was contaminated, as the presumption was extended to those serving in 1965 based only on the finding that the ship operated on the inland waterways. The Veteran indicated that as an electrician, he worked in spaces not frequently visited but where ventilation was still working. He stated that he often felt an oily substance on the cables and was getting skin broken due to shipboard general armored cable; he had small punctures that were not enough to go to a doctor. The Veteran stated that due to the close proximity of the ship to the shoreline when it fired support, the airborne contaminates were able to be picked up by the ventilation system and transferred to inside the ship. The Veteran indicated that he never did see a shield set up at the coastline to contain the wind and airborne particles to inland only. The Veteran stated that at times, the ship was close to the shore, as close as 100 to 150 yards. The Veteran indicated that he remembered that the ship went to mouth of river to get fresh water one time, due to running low while doing plane guard service; he stated that he remembered that the word was passed to do this but he did not know if it was on the ships log. He indicated that this would constitute a more direct exposure by use of contaminated water. He indicated that on reading more about this exposure, the toxin may lay dormant for 30 to 40 years before it causes problems and if it was picked up and distilled in the fresh water system, it magnified the toxicity of the dioxin. The Veteran cited to the independent study of the IOM (Institute Of Medicine). See also the Veteran's testimony at the videoconference hearing before the Board in June 2015, Board hearing transcript pages 12 to 18. At the videoconference hearing before the Board in June 2015, the Veteran stated that during one incident when the ship was shelling inland to support the ground troops, he was able to go on deck during a ceasefire and as he was looking, he saw a plane fly in close to the beach and spray an oily substance. He indicated that he could tell it was oily when the color changed from the sun's prismatic effect over the jungle area. Board hearing transcript dated in June 2015, page 13. The Veteran indicated that as the prevailing wind was off shore, they were exposed through the ventilation systems in the interior of the ship and on deck. Board hearing transcript dated in June 2015, page 14. He indicated that he had secondary exposure from two duty stations, USS Providence CLG-6 and USS Ingersoll DD-652. Board hearing transcript dated in June 2015, pages 13 to 15. Applicable law provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. "Service in the Republic of Vietnam" includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). A veteran must actually set foot within the land borders of Vietnam, to include the inland waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); see also VAOPGCPREC 27-97. Here, the Board finds that the weight of the competent and credible evidence establishes that the Veteran did not have service in the Republic of Vietnam and he served in the waters offshore. The Veteran's service records confirm that he served aboard USS Ingersoll (DD 652) which was in the official waters of Vietnam; however, there is no suggestion that the Veteran set foot in Vietnam, and the weight of the evidence is against a finding that his ship traveled in the inland waterways of Vietnam. The Veteran's service personnel records show that he served aboard USS Ingersoll from June 21, 1968 to September 30, 1970. The service personnel records indicate that the Veteran served in the official waters of the Republic of Vietnam from July 6, 1968 to August 13, l968; August 27, 1968 to September 15, 1968; October 14, 1968 to November 11, l968; and November 22, 1968 to November 26, 1968. The record provided no evidence of in-country service. A memorandum from DPRIS indicates that the command history of USS Ingersoll (DD-652) was reviewed. The 1968 command history for USS Ingersoll (DD-652) reveals that USS Ingersoll (DD-652) got underway on June 10, 1968 the for a Western Pacific (WESTPAC) deployment. USS Ingersoll arrived at Subic Bay, the Republic of the Philippines (RP) on July 3, 1968. After two days of upkeep and maintenance, USS Ingersoll got underway to proceed to YANKEE STATION as a unit of Task Force 77. After three weeks of conducting fast carrier strike force operations in the Tonkin Gulf with the USS America (CVA-66) and USS Constellation (CVA-64), USS Ingersoll proceeded to join a task force and conducted Naval Gunfire Support (NGFS) off the coast of the Republic of Vietnam, near the city of Hue. On July 22, 1968, USS Ingersoll was assigned to the northern I CORPS TACTICAL ZONE in support of the THIRD MARINE DIVISION, the U. S. Army's 1st AIR CAVALRY DIVISION ,and 101st AIR CAVALRY DIVISION. Primarily USS Ingersoll provided harassment and interdiction fire in support of friendly forces ashore during the first days on the gunline. On July 31, 1968, the USS Ingersoll was reassigned to accompany the USS Constellation (CVA-64), which was conducting flight operations in the vicinity of YANKEE STATION. On August14, 1968, the USS Ingersoll arrived in Subic Bay for less than one week of in-port time for upkeep and maintenance. On August 26, 1968 the ship was underway en route to YANKEE STATION. On September 4, orders were received to commence storm evasion southward due to Typhoon BESS. On September 16, 1968, the USS Ingersoll proceeded to Subic Bay for an overnight fuel stop prior to beginning a transit to Yokosuka, Japan. On September 20, 1968 the ship arrived in Yokosuka and, after 10 days of upkeep, then left Japan for Hong Kong, and then proceeded to Subic Bay for upkeep. On October 14, 1968 the ship commenced flight operations at YANKEE STATION with the USS Intrepid (CVS-1 1), as part of Task Group 77.4. Then on October 17, with the sighting of the Russian intelligence trawler (AGI) PELENG, the USS Ingersoll was detached to conduct surveillance operations. Surveillance operations continued until October 22, 1968. The ship then proceeded to rendezvous with Task Unit 77 1.1 to conduct SEA DRAGON operations with the HMAS PERTH (D-37); the ship commenced SEA DRAGON operations off the coast of North Vietnam, south of the 19th parallel to the Demilitarized Zone. On October 27, 1968, while conducting nighttime surveillance for waterborne logistics craft off the coast of North Vietnam, in company with the USS CANBERRA (CA-70), several contacts were detected moving southward along the coast. After tracking, the contacts were evaluated as probable enemy traffic. The first contact was destroyed by 57 gunfire and the remaining contacts began moving rapidly southward. In ensuing engagements the USS Ingersoll destroyed six craft. Three days later, while patrolling approximately 15,000 yards off the coast of North Vietnam, early in the evening, three contacts were detected approximately 600 yards off the coast. Moving in for a closer look several more were found to be moving down the coast at about four knots. An engagement ensued and after the first few rounds the contacts began attempting to escape detection by moving rapidly toward the beach. Despite low clouds and rain squalls throughout the night, five craft were destroyed and three were beached. The following evening, shortly before sunset, three silhouettes were observed on the horizon by the director officer. They were evaluated as waterborne logistics craft and the ship commenced fire. Two craft were destroyed and one was forced to beach. This concluded the USS Ingersoll hunting for the year of 1968, for the following day a bombing halt was proclaimed by the President. The USS Ingersoll, along with many other ships of the SEVENTH Fleet, moved southward into the waters off the coast off the Republic of Vietnam. The ship returned to Subic Bay and subsequently began transit back to the United States with a short en route stop in Taiwan. On December 19, 1968, the USS Ingersoll returned to her home port of San Diego. VA maintains a list of U.S. Navy and Coast Guard ships associated with military service in Vietnam and possible exposure to Agent Orange based on military records. Ships that were part of the Mobile Riverine Force or Inshore Fire Support (ISF) Division 93, or had one of the designations as set forth on the list operated on the inland waterways of Vietnam. Veterans whose military records confirm they were aboard these ships qualify for presumption of herbicide exposure. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp. VA's ship list is intended to provide VA regional offices with a resource for determining whether a particular US Navy or Coast Guard Veteran of the Vietnam era is eligible for the presumption of Agent Orange herbicide exposure based on operations of the Veteran's ship. According to 38 CFR § 3.307(a)(6)(iii), eligibility for the presumption of Agent Orange exposure requires that a Veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975. This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam. However, this does not include service aboard a large ocean-going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore. Inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam. They do not include open deep-water harbors such as those at Nha Trang, Cam Ranh, or Vung Tau. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. The list contains five categories of ships that operated on the waters of Vietnam. A ship is placed on this list when documentary evidence shows that it fits into a particular category. The required evidence can come from an official ship history, deck logs, cruise books, Captain's letters, or similar documents. A specific ship may be listed in more than one category, based on its activities. Evidence requirements for the presumption of Agent Orange exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates. Ship categories include: (1) Ships operating primarily or exclusively on Vietnam's inland waterways; (2) Ships operating temporarily on Vietnam's inland waterways; (3) Ships that docked to shore or pier in Vietnam; (4) Ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore; and (5) Ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. The USS Ingersoll is listed under category II, ships operating temporarily on Vietnam's inland waterways. This category includes large ocean-going ships that operated primarily on Vietnam's offshore waters for gunfire support of ground operations and interdiction of enemy vessels travelling along coastal waters. It also includes ships supplying and supporting these operations. Examples of such vessels include destroyers, cruisers, and cargo ships. The deep offshore waters are often referred to as "blue waters" and naval vessels operating on them are referred to as the Blue Water Navy. Ships in this category entered Vietnam's inland waterways temporarily as part of their gunfire, interdiction, or support missions. All Veterans who served aboard these vessels at the time of entry into Vietnam's inland waterways are eligible for the presumption of Agent Orange exposure. The list indicates that USS Ingersoll (DD-652) operated on Saigon River October 24 to 25, 1965. However, the service records show that the Veteran did not serve aboard this ship on those dates. The Veteran entered active duty service in November 1967. The service personal records do not establish that the Veteran went ashore in Vietnam and the Veteran does not contend that he went ashore. The Board finds that the weight of the evidence establishes that USS Ingersoll (DD-652) was an offshore "blue water" vessel during the time period the Veteran was aboard the ship. The Board in this regard is bound by VA's General Counsel Opinion and the Federal Circuit's decision in Haas v. Peake, 525 F. 3d. 1168 (Fed. Cir. 2008) upholding that determination that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam. See VAOPGCPREC 27-97. There is no presumption for exposure to herbicides for ships off shore. The Veteran's service on a deep-water or blue water naval vessel in waters off the shore of the Republic of Vietnam in and of itself cannot constitute service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A). See VAOPGCPREC 27-97. Thus, the Veteran is not presumed to have been exposed to herbicides during his active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The Secretary has determined that the evidence available at this time does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans. The Secretary's decision is based on careful review of a May 2011 Institute of Medicine (IOM) of the National Academy of Sciences report entitled "Blue Water Navy Vietnam Veterans and Agent Orange Exposure." This report was completed at the request of VA. The IOM reviewed a wide range of data sources and concluded that there is insufficient evidence to determine whether Blue Water Navy Veterans were exposed to Agent Orange-associated herbicides during the Vietnam War. The Secretary's determination not to establish a presumption of exposure for these veterans does not in any way preclude VA from granting service connection on a case-by-case basis for diseases and conditions associated with Agent Orange exposure, nor does it change any existing rights or procedures. The Board finds that the Veteran's own assertions that he was exposed to herbicides while stationed aboard USS Ingersoll (DD-652) to have no probative value. While the Veteran is competent to describe an observable event such as having a substance touch his skin or using water or seeing a liquid substance, the Board finds that the Veteran has not shown that he has the requisite expertise to identify a chemical substance. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure). Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical or scientific expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). There is no evidence of record that the Veteran has the expertise to identify the substances he may have been exposed to without scientific training or the use of scientific testing to identify a substance he came into contact with. Thus, his statements that he was exposed to Agent Orange are not competent and have no probative value. The Veteran also asserts that he was exposed to Agent Orange or other herbicides by drinking and using the water on board the USS Ingersoll and other ships. The Veteran referenced a study in support of his claim. The Board finds that the Veteran's contentions are not sufficient evidence to support the Veteran's assertions that he was exposed to herbicides while onboard the USS Ingersoll or other Navy ships. The Board notes that the Veteran's allegations of actual herbicide exposure based upon the ingestion herbicides through his drinking water have already been considered by the Secretary of VA in creating the "bright line" rule against presumptive exposure to deep water vessels. In Haas, supra, a blue water Veteran, who served on the USS Mount Katmai, supplemented his argument with studies which attempted to show a direct connection between the spraying of Agent Orange on the mainland of Vietnam to the development of Agent Orange-related diseases in service members who served on the ships offshore. In particular, the claimant in Haas attempted to rely on a 2002 study which the veteran referenced in this case. Although the Federal Circuit passed no judgment on the validity of studies, such as the Australian study, it did highlight the VA's rulemaking with respect to this Australian study: VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy. Crucially, based on this analysis, the VA stated that "'we do not intend to revise our long-held interpretation of 'service in Vietnam.'" See Haas, 525 F.3d at 1194 (citing 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Accordingly, the Board defers to the Secretary's reasonable interpretation regarding the reliability and soundness of the various scientific studies purporting to establish actual herbicide exposure to blue water Vietnam Veterans. The Veteran has also asserted that the USS Ingersoll went up a river to collect fresh water, but the Veteran's statements such as in a January 2012 substantive appeal do not show that the Veteran was on deck to see any voyage up any inland waterway, and such statements are not supported by any deck logs. As noted, the Command history of the ship does not show any entry by the USS Ingersoll into the inland waterways of Vietnam after 1965. As such, this testimony is not found to establish the presumption of herbicide exposure. The Board also appreciates the anecdotal evidence the Veteran has referenced suggesting that a number of crew members from the USS Ingersoll have developed diseases that fall within the herbicide presumption. However, it is unclear who was surveyed in compiling such data; and importantly, neither Congress, nor VA regulations, have seen to expand the limited presumption for the USS Ingersoll. The Board finds that such anecdotal data is hearsay, and cannot on its own create a presumption of herbicide exposure for those on the USS Ingersoll, to include the Veteran. Consequently, the Veteran's claim of service connection for diabetes mellitus and ischemic heart disease does not fall within the purview of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 (which provides for establishing service connection for certain diseases, including diabetes mellitus type II and ischemic heart disease, on a presumptive basis based on herbicide exposure therein for veterans who served in Vietnam). Although the evidence does not support a presumptive link between the Veteran's claimed disorder and his active service, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds that the weight of the competent and credible evidence establishes that the diabetes mellitus type II first manifested in 2007, over 35 years after service. The weight of the competent and credible evidence establishes that the ischemic heart disease first manifested in 2009, over 35 years after service. There is no competent evidence which relates these diseases to service or to disease or injury or other event in service. The Veteran has not submitted competent evidence to link the development of these disorders to the time that he served on active duty. There is no evidence of diabetes mellitus type II or ischemic heart disease in service or for many years thereafter. Separation examination in October 1971 indicates that examination of the endocrine system and chest was normal. Chest x-ray examination was within normal limits. There is no evidence of symptoms, complaints or diagnoses of diabetes mellitus type II or ischemic heart disease in active service. There is no competent evidence of a diagnosis of diabetes mellitus type II or ischemic heart disease within one year after service separation in October 1971. The Board also finds that the Veteran did not experience continuous symptoms of diabetes mellitus type II or ischemic heart disease in service or since service separation. There is no competent evidence of symptoms of these disorders since separation from service until the time of the diagnoses in 2007 and 2009 respectively. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) and § 3.307(a) is not warranted. As noted, the post service treatment records show that Type II diabetes mellitus was diagnosed in 2007 and ischemic heart disease was diagnosed in 2009, over 35 years after service separation. Such a lengthy time interval between service and the earliest post service clinical documentation of the disability is of itself a factor for consideration against a finding that the disability is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no competent evidence to establish a nexus between the diabetes mellitus type II and ischemic heart disease and any documented event or incident of service. There is no competent and credible medical evidence that links the claimed diseases to service. The Veteran submitted a medical opinion from Dr. Glover, from the Heart Clinic of Arkansas, in support of his claim. In the statement received in February 2012, Dr. Glover stated that the Veteran has a diagnosis of coronary artery disease (ischemic heart disease) diagnosed in 2009 when the Veteran suffered a myocardial infarction. Dr. Glover opined that it was at least likely as not that this could be related to his Agent Orange exposure/military service. The Board does not question Dr. Glover's competence and expertise as a medical doctor and cardiologist. However, his medical opinion is not competent evidence because the opinion is not based upon accurate facts. As discussed in detail above, the Board found that the Veteran was not exposed to herbicides in service. Medical opinions based upon insufficient facts and data or based upon an inaccurate premise have limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data. The Court has also held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bloom v. West, 12 Vet. App. 185, 187 (1999). The Veteran's own assertions that the claimed diabetes mellitus Type II and ischemic heart disease are related to service to include herbicide exposure in service are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. Although the Veteran is competent to testify as to observable symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. There is no evidence that the Veteran has medical expertise. Also, as discussed above, the Veteran has not been found to have been exposed to herbicides in service. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the diabetes mellitus type II and ischemic heart disease are related to service. As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claims for service connection for diabetes mellitus type II and ischemic heart disease on a direct and presumptive basis are denied. 4. Analysis for bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss which he believes is the result of military noise exposure. The Veteran's hearing was normal at enlistment, but no audiometric testing was conducted at separation. The Veteran has testified at a Board hearing that he noticed diminished hearing acuity during service, which is within his purview. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran also testified that his general quarters position was near a large gun mount on a navy destroyer. He is currently diagnosed with bilateral hearing loss for VA purposes. Given his testimony of continuous hearing problems since service until the time he was diagnosed with bilateral hearing loss, the Board concludes that reasonable doubt mandates that service connection be granted for this condition. ORDER Service connection for diabetes mellitus type II is denied. Service connection for ischemic heart disease is denied. Service connection for bilateral hearing loss is granted. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs