Citation Nr: 1635277 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 05-19 083 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange (herbicide) exposure. (The issue of entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is the subject of a separate decision.) REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1968 to May 1970. His primary military occupational specialty was as a longshoreman. From October 1968 to May 1970, he was assigned to the 412th Transportation Company, United States Army Riyuku Islands (Okinawa). This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the RO in Winston-Salem, North Carolina, which denied service connection for diabetes. This matter has had a significant procedural history, including multiple remands and appeals to the U.S. Court of Appeals for Veterans Claims (Court). After the Board again denied service connection for diabetes in a January 2012 decision, the Veteran appealed the decision to the Court. In a June 2013 memorandum decision, the Court vacated and remanded the denial, finding the Board erred in failing to assist in the development of evidence that may have shown exposure to the herbicide Agent Orange during service. In a subsequent June 2014 Remand, the Board remanded the instant matter in an attempt to obtain any outstanding records. While cognizant of its responsibilities under Forcier v. Nicholson, 19 Vet. App. 414 (2006), and Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for diabetes mellitus, type II, which is a total grant of benefits as to the issue on appeal, the Board need not address Forcier or Stegall at this time. Significantly, the Veteran previously argued to the Court that the Board failed to provide adequate reasons and bases to support its findings that certain lay statements concerning Agent Orange exposure in Okinawa were not credible. While the Court did not address this argument as the issue was remanded due to the Board's failure to ensure VA satisfied its duty to assist, the Court did offer the following guidance: Here, the Board may wish to reconsider the credibility of the statements of the appellant and his fellow veterans in light of the unusual facts of this case. VA admits that unit records submitted for the 412th Transportation Company from 1968 to 1970 have been lost. To the extent that VA inferred a lack of herbicides on Okinawa from the lack of documentation, the knowledge that relevant documents have been lost should counsel caution in granting probative weight to that inference. In the instant decision the Board grants service connection for diabetes mellitus, type II, based upon exposure to the herbicide Agent Orange while the Veteran was working at the docks of Okinawa, Japan during service. The Board, in granting service connection, is not making any statement and/or finding as to whether Agent Orange was ever present in Okinawa, Japan during the relevant time period on appeal. Rather, based upon the "unusual facts of this case" (and only this case) as expressly noted by the Court, the Board finds that the evidence that Agent Orange was present in Okinawa is at least in relative equipoise to the evidence that Agent orange was not present in Okinawa during the relevant time period on appeal. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. Credible evidence sustains a reasonable probability that during service, while performing regular duties at the Naha Naval Port in Okinawa, Japan, the Veteran was exposed to Agent Orange from leaking barrels. 2. The Veteran is currently diagnosed with diabetes mellitus type II. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). As the instant decision grants service connection for diabetes mellitus, type II, which is a complete grant as to the issue on appeal, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for Diabetes Mellitus Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Diabetes mellitus type II is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including Type II diabetes mellitus, though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran has advanced that service connection for diabetes mellitus, type II, is warranted due to exposure to herbicides during service while working at the Naha Naval Port in Okinawa, Japan. Initially, the Board finds that the Veteran is currently diagnosed with diabetes mellitus, type II. VA and private treatment (medical) records reflect that the Veteran has been diagnosed with and receives treatment for this disability. Next, explicitly considering the "unusual facts of this case" (and only this case), the Board finds that the evidence of record is at least in equipoise as to the question of whether the Veteran was exposed to herbicides during service. A July 2011 Joint Services Records Research Center (JSRRC) Agent Orange Request memorandum reflects that the Veteran was stationed at Naha Naval Port in Okinawa, Japan from October 1968 to May 1970. Numerous lay statements from both the Veteran and fellow service members over the past decade reflect that the Veteran's duties included hauling items and equipment from ships bringing supplies to and from the Republic of Vietnam. A December 2010 VA email discusses the use of Agent Orange and noted that Department of Defense documentation does not show the use, testing, or storage of tactical herbicides, such as Agent Orange, at any location in Japan. Further, a June 2011 Defense Personnel Records Information Retrieval System (DPRIS) report stated that available Army historical records did not document the spraying, testing, transporting, storage, or use of Agent Orange in Okinawa, Japan during the relevant period on appeal. As such, DPRIS was unable to document that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed in Okinawa, Japan. The DPRIS report also noted that the National Archives and Records Administration (NARA) was unable to locate the 1968 to 1970 unit records for the 412th Transportation Company. In multiple lay statements over the years, including in a June 2004 statement, the Veteran advanced loading and unloading barrels of Agent Orange from cargo ships while stationed and working at Naha Naval Port in Okinawa, Japan. The Veteran advanced that on multiple occasions the contents of the barrels would spill out onto the Veteran. Other lay statements, including one from January 2005, convey that the Veteran was able to identify these barrels as containing Agent Orange from the orange bands around the barrels. In January 2005, VA received a lay statement from S.P., a fellow service member who was stationed with the Veteran. S.P. advanced that multiple drums of Agent Orange were among the many items offloaded as part of their duties, and that these drums often leaked. S.P. also noted having a current diagnosis of diabetes mellitus, type II. Per a February 2005 statement, another service member, R.S., advanced handling leaky drums of Agent Orange alongside the Veteran. R.S. stated that these drums were shipped to Okinawa, where they were then loaded onto other boats headed to the Republic of Vietnam. An email was received in January 2009 from an individual by the name of R.G. who was a transportation specialist in the United States Army. R.G. conveyed seeing what he believed to be drums of Agent Orange being shipped from the Republic of Vietnam to Okinawa, Japan. Another fellow service member by the name of M.F. submitted a statement in February 2009. Per the statement, M.F. advanced shipping full barrels of Agent Orange from Okinawa to the Republic of Vietnam and receiving used barrels back while working alongside the Veteran. Further, M.F. also noted being diagnosed with diabetes mellitus, type II. In April 2010, VA received a lay statement from G.H., who conveyed working in Naha Naval Port in 1972. G.H. stated that drums of Agent Orange were moved through the port. VA received a letter from an individual named M.J. in June 2014. Per the letter, M.J. advanced being stationed in Okinawa from August 1968 to March 1970 and observing multiple leaking barrels that emanated a pungent herbicide odor. M.J. stated that when he asked about the contents of the barrels, he was told that they contained Agent Orange. The evidence reflects that military records do not convey that Agent Orange was ever stored, tested, or used in Okinawa, Japan; however, as addressed by the Court in its June 2013 memorandum decision, the unit records of the 412th Transportation Company from 1968 to 1970 have been lost. Per the Court, the Board has considered the unusual facts of this case in finding that the numerous lay statements from fellow service members that leaky drums of Agent Orange were transported between Naha Naval Port in Okinawa, Japan, and the Republic of Vietnam during the relevant period on appeal to be credible. As the Board finds these statements, under the unusual facts of this case, to be credible, the Board finds the evidence to at least be in relative equipoise on the question of whether the Veteran was exposed to Agent Orange from leaking barrels while performing regular duties at the Naha Naval Port in Okinawa, Japan. Again, under the specific facts of this case, and only this case, the Board merely finds that there is an approximation of positive and negative evidence as to whether the Veteran may have been exposed to Agent Orange while stationed in Okinawa, Japan. In rendering this decision, the Board in no way comments as to whether Agent Orange was ever actually stored, used, tested, and/or transported in Okinawa, Japan. Because diabetes mellitus, type II, is presumptively associated with herbicide exposure, service connection for diabetes mellitus, type II, as a result of herbicide exposure is warranted on a presumptive basis. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER Service connection for diabetes mellitus, type II, is granted. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs