Citation Nr: 1611849 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 12-02 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, and any possible complications to include erectile dysfunction, cardiovascular disability, and neurological disability, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran had active service from February 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The Veteran did not have service within the borders of the Republic of Vietnam. 2. The most probative evidence does not demonstrate that it is at least as likely as not that the Veteran was exposed to herbicides in service, that his diabetes and its various complications had their onset in service or were diagnosed within one year of separation, or that his diabetes is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus and its complications have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304, 3.307, 3.309, 3.313 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Correspondence issued in October 2008 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. As to VA's duty to assist the Veteran with his service connection claim, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. See generally 38 C.F.R. § 3.159(c). The record in this case includes service treatment records, VA treatment records, and lay evidence. While a VA medical opinion with regard to the probable etiology of the Veteran's diabetes mellitus was not obtained in this case (a VA examination dealing with the scope of the disabilities associated with his diabetes, which did not address the etiology of his underlying diabetes, was obtained in October 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C.A. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication that the Veteran's diabetes mellitus, diagnosed more than two decades after he separated from service, was the result of his military service, or that it may be presumed to have been so incurred. As such, the Veteran's conclusory lay statements are insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. The Veteran contends that he is entitled to service connection for his diabetes mellitus, type II, as well as associated erectile dysfunction, cardiovascular disability, and neurological disability, based upon exposure to herbicides during service. Specifically, the Veteran asserts that he was exposed to Agent Orange, a tactical herbicide, while servicing airplanes that saw action in or over Vietnam and/or through direct contact with "barrels of Agent Orange" on his ship. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also be established under 38 C.F.R. § 3.303(b) where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Service connection may also be established with certain chronic diseases, including diabetes mellitus, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. Satisfactory lay or other evidence that an injury or disease was incurred in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d). Additionally, the law provides that "a veteran 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 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 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307 (2015). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including Type 2 diabetes mellitus, 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. 38 C.F.R. § 3.309(e) (2014). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (2014). However, the Federal Circuit, in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), confirmed VA's interpretation of 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. With regard to inland waterways, for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include service on a deep-water naval vessel in the offshore waters. See Haas, 525 F.3d at 1187-1190. The term "inland waterways" is not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. According to the VA Adjudication Procedure Manual, inland waterways are fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. VA Adjudication Procedure Manual M21-1, pt. IV, subpt. ii, ch. 1, § H.2.a. The term "offshore waters" are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VA Adjudication Procedure Manual M21-1, pt. IV, subpt. ii, ch. 1, § H.2.b. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (establishing that the term "Vietnam era" means the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period). See VAOPGCPREC 27-97. If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Preliminarily, the Board observes that VA treatment records reflect a diagnosis of diabetes mellitus. As such, the Board finds the Veteran has established a present disability for the purpose of service connection. Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, diabetes mellitus is enumerated by 38 C.F.R. § 3.309(e) as a disease presumptively associated with herbicide exposure. With regard to in-service exposure to herbicides, the Veteran's service personnel records indicate the he was attached to Reconnaissance Attack Squadron Twelve aboard the USS America (CV-66), a Kitty Hawk-class supercarrier, from May 1970 to November 1970. He was an aircraft mechanic. However, the Veteran's service treatment records and service personnel records contain no documents showing in-service exposure to herbicides. In correspondence dated in May 2009, the Joint Services Records Research Center (JSRRC) indicated that following a review of 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 in Vietnam, it found no evidence indicating that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. In addition, the JSRRC could not 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. As such, the JSRRC could provide no evidence to support the Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. In May 2011, the National Personnel Records Center (NPRC) indicated that Reconnaissance Attack Squadron Twelve could have been assigned to the ship or the shore. The NPRC specified that the unit was credited with Vietnam service on May 17, 1970; on May 19, 1970; from May 24, 1970, to June 16, 1970; from June 28, 1970, to July 13, 1970; from July 22, 1970, to August 4, 1970; from August 24, 1970, to September 18, 1970; and from October 13, 1970, to November 8, 1970. However, the NPRC indicated that the service records provided no conclusive evidence of in-country service. The Veteran has not asserted, and the record does not reflect, that he was ever on the ground in the Republic of Vietnam. The VA Compensation and Pension Service's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, updated in February 2016, did not include the USS America (CV-66). In addition, the "Dictionary of American Naval Fighting Ships" maintained by the Naval Heritage and History Command indicated that the USS America (CV-66) engaged in special operations from Yankee Station in the Gulf of Tonkin. The Board notes that Yankee Station in the Gulf of Tonkin does not fall under the category of "inland waterways." Thus, the Board finds that the Veteran did not have service in Vietnam for the purpose of presumptive herbicide exposure. While no presumption of herbicide exposure has been satisfied, the Veteran is nevertheless entitled to show that he was actually exposed to herbicides while in service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In support of his direct exposure to herbicides the Veteran has indicated that he was exposed to herbicides while servicing airplanes that saw action in or over Vietnam and/or through direct contact with "barrels of Agent Orange" on his ship. The use of commercial strength herbicides with tactical properties was confined primarily to the base perimeters in Thailand and was used throughout Vietnam. The Veteran has not reported working on or along the perimeter of the bases in Thailand, or service on the ground in Vietnam, but rather has reported exposure occurred while servicing aircraft that had returned from flying missions into Vietnam and direct contact with Agent Orange stored on the USS America (CV-66). As discussed above, the JSRRC found no evidence indicating that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Moreover, the JSRRC could not 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. The Board is cognizant of the holding in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), in which the Court held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Here, the record is negative for any evidence that the Veteran was exposed to herbicides other than his own assertions. While the Veteran is competent to describe what he experienced and witnessed in service, there is no evidence that the Veteran is competent to determine what, if any, chemicals or gases had adhered to the exterior of aircraft or equipment and what cargo was stored aboard the USS America (CV-66). As such, the evidence does not support the contention that the Veteran was exposed to tactical herbicides or commercial herbicides with tactical properties during service. Furthermore, the Veteran's service treatment records are negative for any treatment or indication that the Veteran was exposed to herbicides in service. Nevertheless, even when a regulatory presumption of service connection for a given disability is not available, the claim must be reviewed to determine whether service connection can be established on another basis. See Combee, 34 F.3d at 1043-1044. As such, the Board will also adjudicate the claim on a theory of direct entitlement to service connection for the Veteran's diabetes mellitus. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may also 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). Additionally, service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d). The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). As discussed, the Veteran has been diagnosed with diabetes mellitus. However, the evidence does not support a finding that he experienced an in-service injury, disease or event to which the diabetes mellitus could plausibly be related. Service treatment records do not reflect any instance of diabetes mellitus or diabetes symptoms and the evidence of record shows that the Veteran was first diagnosed in the 1990s, more than two decades after his November 1970 service separation. Moreover, the record is negative for any evidence even suggesting that the Veteran's diabetes mellitus is linked to his service by any means other than through herbicide exposure. The relationship between diabetes mellitus and herbicide exposure is not at issue here. As evidenced by 38 C.F.R. § 3.309(e) this relationship is presumed. Rather, the Veteran must demonstrate actual exposure in service. Since the Board has concluded that the evidence does not establish that it is at least as likely as not that the Veteran was exposed to herbicides in service, the evidence simply does not support a finding that the Veteran's diabetes mellitus was caused by or otherwise began during service as the in-service injury requirement is not met. Furthermore, while diabetes mellitus is considered a chronic disease under 38 C.F.R. § 3.309, there has been no indication that continuity of symptomatology has been established in this case. Service treatment records do not indicate any in-service treatment for diabetes, and the medical examination conducted in November 1970 at separation is negative for reports or findings of diabetes. Service treatment records are negative for any indication that the Veteran was treated for diabetes in service. Additionally, post-service medical records reflect that he was first diagnosed in the 1990s, over two decades after separation. As such, the Board finds that neither continuity of symptomatology nor that the Veteran's diabetes was diagnosed within one year of separation has been established. In sum, the evidence weighs against a finding that the Veteran was exposed to herbicides in service. The evidence also weighs against a finding that the Veteran's diabetes mellitus was caused by or otherwise began during service. As such, the Veteran's claim for service connection for diabetes mellitus must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs