Citation Nr: 1702330 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 15-13 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to June 1964. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam or Vietnam's inland waterways during the herbicide presumptive period and herbicide exposure may not be presumed. 2. Diabetes mellitus was not manifested in service, or within one year of separation. Diabetes mellitus is not attributable to service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all the duty to notify and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016). Duty to Notify VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must also notify the Veteran of the information regarding how an effective date and disability rating are determined. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify in this case was satisfied by a letter sent to the Veteran in February 2013. Duty to Assist VA also must make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claim being decided because his or her service treatment records, VA treatment records, service personnel records, and lay statements have been obtained and appear to be complete. In addition, VA obtained any outstanding and relevant post service treatment records referable to the Veteran's diabetes mellitus. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4) (2016). Under 38 U.S.C. § 5103A(d), VA must provide a medical examination or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; (2) evidence establishing that the an event, injury, or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has not provided the Veteran an examination or medical opinion with regard to the Veteran's claim of entitlement for service connection for diabetes mellitus. A VA examination under the standards of McLendon is not warranted in this case. As discussed below, the evidence does not establish an in-service event or presumptive exposure to herbicide and there is no indication that the Veteran's diabetes mellitus is related to service. No reasonable possibility exists that a VA examination would aid in substantiating the claims, therefore a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. Legal Criteria and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2014). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.307, 3.309 (2016). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See 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 that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Specific laws and VA regulations determine when a veteran may be presumed to have been exposed to herbicides, including Agent Orange, and when that presumed exposure may have caused specific diseases. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed to Agent Orange during such service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran who "served in the Republic of Vietnam," certain listed diseases, including diabetes mellitus, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). Service in the Republic of Vietnam includes service in the landmass of Vietnam or the inland waters of Vietnam. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The absence of service in Vietnam does not preclude a Veteran from alleging that he has diabetes mellitus that is related to Agent Orange exposure. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the Veteran seeks service connection for his diabetes mellitus based on exposure to Agent Orange while on the aircraft carrier USS Ticonderoga in Cam Ranh Bay. The Veteran states he was exposed to Agent Orange in two different ways. First, he states that during his time on the USS Ticonderoga, the ship entered the coastal waters of the Republic of Vietnam. See September 2013 statement in support of claim. The Veteran states during this period that the USS Ticonderoga was based in the Cam Ranh Bay and that wind carried herbicide from the mainland to the aircraft carrier, exposing him to Agent Orange. May 2014 notice of disagreement. Second, during the same period, the Veteran also claimed he was exposed to herbicide from planes that took off and returned from the aircraft carrier carrying Agent Orange. April 2015 VA 9: Appeal to the Board of Appeals; December 2015 correspondence. The Veteran's June 1964 separation examination does not show diabetes mellitus. The endocrine system was normal and urinalysis was negative for sugar. The Veteran's diabetes mellitus was identified in or about 2007. See August 2011 private treatment records (noting that, in 2011, the Veteran's diabetes mellitus had first been identified four years prior). The Veteran's service records and itinerary for the USS Ticonderoga, shows he was aboard the USS Ticonderoga from September 1960-May 1964, including tours in the Western Pacific. See September 1960-June 1964 service personnel records (noting dates the Veteran served on the USS Ticonderoga); May 2014 military personnel record (containing the USS Ticonderoga's 1964 "Cruise Chronology"); May 2014 military personnel record (containing the USS Ticonderoga's 1963 "Far East Cruise" tour). The Veteran likewise claimed during his service in the Western Pacific he repeatedly heard the USS Ticonderoga's captain announce that the ship was "cruising the coast" of Vietnam. See, e.g., December 2015 correspondence. The Veteran's service personnel records, DD-214, and statements regarding Agent Orange exposure reflect that there is no lay or other evidence that the Veteran set foot in the landmass of Vietnam. There is no indication that the Ticonderoga anchored, docked, or moored in Vietnam. A February 2013 response from the service department regarding the Veteran's Vietnam service indicates that there is not enough information regarding the Veteran's service to determine in-country service. In the December 2015 correspondence, in response to a question regarding service in the U.S. Navy, the Veteran indicated that he served in Vietnam's inland waterways at some point between January 9, 1962 and May 7, 1975. He provided no supporting evidence for this statement. The USS Ticonderoga had service off the shores of Vietnam during the period in which the Veteran was stationed aboard. See February 2013 response from the service department. However, service exclusively offshore on the open ocean is not considered service in the Republic of Vietnam for purposes of the presumptive provisions pertaining to exposure to herbicides. Haas v. Peake, 525 F.3d 1168, 1192 (Fed. Cir. 2008). Additionally, the USS Ticonderoga is not listed as a vessel associated with exposure to herbicide agents. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (June 15, 2016). According to the February 2013 response from the service department, the Veteran's only reported service in the waters of the Republic of Vietnam were in September and October 1961, before the relevant presumptive period for herbicide exposure. See 38 C.F.R. § 3.307(a)(6) (noting the presumptive period for herbicide exposure begins in January 1962). The Veteran's service personnel records, lay statements, and the two tour chronologies he submitted for 1963 and 1964 do not contradict the service department's determination regarding the Veteran's lack of service in the Republic of Vietnam for the timeframe between January 1962 and the Veteran's release from active service in June 1964. The Veteran's first contention, that Agent Orange drifted from the mainland to the USS Ticonderoga, which in turn caused his diabetes, cannot support a finding that his diabetes was caused by Agent Orange exposure. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). The Veteran's contention regarding Agent Orange drifting from the mainland is insufficient to establish service connection. Although it is "conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam coast . . . for purposes of the presumption of exposure, there is no apparent basis for concluding that any such risk was similar in kind or degree to the risk attending service within the land borders of the Republic of Vietnam." Haas v. Peake, 525 F.3d 1168, 1183 (Fed. Cir. 2008). Given that claims regarding Agent Orange drifting from the mainland have not been held to be adequate for establishing presumptive exposure, the Board finds that this contention is not adequate for establishing exposure to Agent Orange. More importantly, his statements do not establish that there was actual exposure. The Veteran's second contention is that he was exposed to Agent Orange carried by aircraft based on the USS Ticonderoga. The Joint Services Records Research Center (JSRRC) reviewed official documents, ship logs, and other sources and found that no evidence exists showing Navy ships, such as the USS Ticonderoga, operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. See April 2015 JSRRC Report. As a result, the JSRRC could not verify if the Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Again, the Veteran has not established a factual foundation that would have established actual exposure to herbicide agents. Therefore, the Board finds this contention is not adequate for establishing exposure to Agent Orange. The Board has also considered other theories. Here, diabetes mellitus was not manifested during service or within one year of separation. In addition, he did not have the characteristic manifestations sufficient to identify the disease entity. Rather, at separation, the endocrine system was normal and urinalysis was negative for sugar. In addition, there is no competent evidence of diabetes until many years post service. At this time, there is no acceptable evidence of diabetes mellitus during service or within one year of separation. There is no accepted proof of exposure to Agent Orange and no proof that the remote onset of diabetes mellitus is otherwise related to service. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus. ORDER Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs