Citation Nr: 1628650	
Decision Date: 07/19/16    Archive Date: 07/28/16

DOCKET NO.  14-18 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1967 to November 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision from the Regional Office (RO) of the Department of Veterans (VA), in Portland, Oregon.  


FINDINGS OF FACT

1.  The Veteran is not shown to have had duty or visitation in the Republic of Vietnam during the Vietnam era, and exposure to Agent Orange has not otherwise been demonstrated. 
 
2.  The Veteran is not shown to have manifested complaints or findings of diabetes mellitus, type II, in service or for many years thereafter. 
 
3.  Diabetes mellitus, type II, is not shown by competent clinical, or competent and credible lay evidence of record to be due to any event or incident of the Veteran's active service, including herbicide exposure.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, type II, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In this case, the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in September 2010 correspondence, prior to the adverse decision from which this appeal originates.

A VA medical opinion has not been obtained in this case.  38 U.S.C. § 5103A(a) (West 2014).  A VA medical opinion is not required as a matter of course in every case involving a nexus issue.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the appellant, in which case an examination may not be required); Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination; rather, under § 5103A(a), VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when an opinion is necessary to substantiate the claimant's claim for a benefits.  The Board finds that the medical evidence currently of record is sufficient to decide the claim and no VA medical opinion is warranted.

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 persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence.  38 C.F.R. § 3.159(c)(4) (2015).

With respect to the third factor above, the United States Court of Appeals for Veterans Claims (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). 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted.  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 (as in this case) would not suffice to meet the standards, 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 only evidence that the diabetes mellitus disability is related to his service, are the Veteran's own conclusory, generalized lay statements, which are unsupported by the medical evidence.  Although the Veteran believes that his diabetes mellitus should be service connected, the fact remains that none of his arguments have been bolstered by the opinion of any medical professional and the post-service treatment record provides highly probative evidence against the claim.  Accordingly, the Board finds that referral for VA medical examination or opinion is not warranted.

As such, the lay statements that are of record are simply insufficient to trigger VA's duty to provide an examination with an opinion.

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  Thus, the Board finds that VA has satisfied the duty to assist.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015).  To establish service connection for a current disability, a veteran must show: the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service -  the so-called nexus requirement.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Evidence of continuity of symptomatology of a disability from the time of service to the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2015). 

Certain chronic disabilities, including type II diabetes mellitus, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). 

A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents, such as Agent Orange, during that service, absent affirmative evidence to the contrary.  Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam.  38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015).  The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), 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).  VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted.  

"Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975.  38 U.S.C.A. § 1116(a)(3) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015).  In fact, the Federal Circuit issued a decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), where it 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.  A veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  See also VAOPGCPREC 7-93 [holding that service in Vietnam does not include service of a Vietnam era veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace]; and VAOPGCPREC 27-97 [holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam].  In addition, the Federal Circuit held that "service in Vietnam" will not be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM).  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 

With regard to inland waterways, again, in order 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 mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii).  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  "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, pt. IV, subpt. ii, ch. 2, § C.10.k.  Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang Harbor, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore.  

In essence, if the Veteran did not serve in the Republic of Vietnam or on its inland waterways 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 disease under 38 C.F.R. § 3.309(e) to be applicable. 

Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service connection basis.  When a disease is first diagnosed after service, but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran contends that he was exposed to herbicides during active service while he served on the U.S.S. Princeton from June 1967 to January 1970.  

The Board notes that VA has identified a number of Navy and Coast Guard ships which meet these requirements and are subject to the presumption of exposure to herbicides under 38 C.F.R. § 3.307 and 3.309.  The most recent list of such ships, updated on June 15, 2015, shows that the U.S.S. Princeton (LPH-5) operated on Vietnam's close coastal waters.  It functioned as a troop transport with helicopters and smaller vessels transporting troops on and off shore during April 1962 and from October 1964 to December 1968.  The Veteran's personnel records show that he served on the U.S.S. Princeton during the latter period.  

VA considers the U.S.S. Princeton in a category that includes large ocean-going ships of the Blue Water Navy that conducted supply missions to Vietnam or transported troops into and out of the country through use of smaller landing craft housed within the mother ship.  Examples of such vessels include attack cargo ships, amphibious attack transports, and landing ship docks.  The smaller landing vessels within these ships required a crew of from 3 to 14, depending on size, as they ferried supplies or troops to and from shore.  Although official documents show that some crewmembers went ashore with the landing craft, they do not generally provide the names of these crewmembers.  Additionally, many of these ships are listed for extended time frames because they routinely traveled back and forth between the United States and Vietnam, and between Vietnam and other Asian Pacific ports, as they delivered supplies and troops to Vietnam.  It is also noted that a veteran aboard the mother ship during the time frame of offshore Vietnam landing craft activity will be eligible for the presumption of exposure if that veteran provides a lay statement of personally going ashore with the landing craft.  See http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm

The Board finds that the Veteran's service personnel records show that he was aboard the U.S.S. Princeton during the required time period.  Therefore, in order to the Veteran to qualify for presumptive service connection due to exposure to herbicides, a lay statement by the Veteran reporting that he went ashore will be accepted as evidence that the Veteran meets the service in Vietnam requirement.  

In October 2010 the Veteran reported that he served on the U.S.S. Princeton (LPH-5) from 1967 to 1969.  The Veteran also reported that he served on the flight deck and that his ship was anchored in Da Nang Harbor as well as by the mouth of the Saigon River.  The Veteran reported being off the shore of Vietnam.

In June 2011, the Veteran telephoned the RO and reported that he served on the flight deck of the U.S.S. Princeton and provided his service dates.

A February 2012 notice of disagreement filed by the Veteran reads the following, "While I did not go ashore, I disagree on the basis that...."  The Veteran also reported that the U.S.S. Princeton had the same mission as some of the other vessels that VA had listed with herbicide exposure. 

In February 2014, the Veteran submitted a statement that he flew into Da Nang on a helicopter to assist a sailor on emergency leave.  He reported that he was on the ground for one to two hours.  

The Board notes that the Veteran is generally competent to report that he went ashore on a helicopter and was on the ground in the Republic of Vietnam for one to two hours.  However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  Competency is a legal concept determining whether testimony may be heard and considered, and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6 Vet. App. 465 (1994).

In weighing credibility, VA may consider interest, bias, inconsistent statements, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

Here, the Board finds that the Veteran's statements that he was flown in a helicopter and landed in Da Nang for one to two hours not credible.  Specifically, the Board notes that the Veteran's statements regarding whether he set foot in the Republic of Vietnam are inconsistent with the other evidence of record.  The Veteran himself reported that he only served aboard the U.S.S. Princeton on the flight deck in statements submitted in October 2010, June 2011, and February 2012.  In fact, the Veteran specifically reported that he did not go ashore in the statement submitted in February 2012.  Significantly, the Board notes that the Veteran only reported that he did indeed go ashore in a February 2014 statement only after the U.S.S. Princeton was added to an updated Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents Memorandum.  Because the Veteran's statements are not supported by the record and are, in fact, inconsistent with earlier statements of record, the Board finds that his statement that he was in Da Nang for one to two hours is not credible.  Thus the Board finds that there is no competent and credible evidence to show that the Veteran was exposed to herbicides while on active duty or set foot in the Republic of Vietnam; therefore presumptive service connection for the Veteran's diabetes mellitus, type II, is not warranted.  

The Board acknowledges that in Gray v. McDonald, 27 Vet. App. 313 (2015), the Court found that VA relied on insufficient evidence to designate Da Nang Harbor as an offshore, rather than an inland, waterway.  The Court vacated that decision to allow VA to reevaluate its definition of inland waterways, including how that definition applies to Da Nang Harbor.  Since that decision, however, VA has undertaken a review of the classification of Vietnam-area harbors. VBA Manual M21-1 has been revised, and clearly states that Da Nang Harbor is not an inland waterway for VA purposes. 

Notwithstanding the foregoing, service connection may still be established with proof of actual direct causation.  To that end, the Board has considered whether there is a direct link between the Veteran's diabetes mellitus and his active service.  However, there is no record of relevant treatment during service, or within one year of separation from service.  The post-service medical evidence shows that the earliest medical evidence of diabetes mellitus is dated in October 2008.  The Veteran also reported in VA treatment records that while the exact date of his diagnosis of diabetes mellitus was not known, he reported that the year 2006 was the onset date.  This is over 30 years after his separation from service.  There is no competent opinion in support of the claim on any basis.  Thus, the Board concludes that service connection for diabetes mellitus, type II, under theories of direct and presumptive service connection is not warranted.

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs