Citation Nr: 1712697 Decision Date: 04/19/17 Archive Date: 04/26/17 DOCKET NO. 12-30 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Michele L. Zimbler, Agent ATTORNEY FOR THE BOARD L. Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in August 2015 when it was remanded for additional development. It has returned for adjudication. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran served within the Republic of Vietnam during the Vietnam Era or that he was otherwise exposed to herbicide agents in service. 2. Diabetes mellitus, type II was not present during active service or within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty 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, 3.326(a) (2016). The duty to notify has been met. See October 2010 VCAA Correspondence. Further, neither the Veteran, nor his agent, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Court of Appeals) has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. As for the duty to assist, all identified and authorized records relevant to the appeal have been requested or obtained. The available record includes service treatment records, personnel records, VA treatment records, and statements in support of the claims. It appears that all obtainable evidence identified by the Veteran relative to the claim adjudicated herein has been obtained and associated with the claims folder, and that neither he nor his agent has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board realizes the Veteran has not been provided a VA examination in response to his claim for diabetes mellitus, type II, nor has a medical nexus opinion been obtained. VA is obliged to obtain a VA examination or medical opinion under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), sets out that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim. As discussed in greater detail below, there is no competent and credible evidence suggesting that the Veteran's diabetes mellitus, type II is related or attributable to his active military service. The evidence does not support his contention that he was exposed to herbicides during service; his service treatment records are negative for any complaints or findings of diabetes mellitus; he has not asserted experiencing any symptoms of diabetes mellitus during and continuing since service; and there is no competent and credible evidence of record indicating an association between the claimed condition and the Veteran's military service. Therefore, the absence of a medical examination addressing this claim does not constitute a breach of VA's duty to assist. As noted above, the Board previously remanded this issue in August 2015 for further development. That development included obtaining deck logs for the USS Cochrane. Such were obtained from the National Archives and Records Administration in September 2015. There has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Accordingly, the Board finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection-Diabetes Mellitus, Type II Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases, such as diabetes mellitus, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations further provide for presumptive service connection for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). These diseases include type II diabetes mellitus. 38 C.F.R. § 3.309(e). For the purposes of presumptive herbicide exposure, service in Vietnam requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). Instead, it requires service on the landmass and includes service on the inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). The Veteran states that his exposure to herbicides, to include Agent Orange, is not based on actually setting foot in Vietnam or being in the "brown" waters of Vietnam. See VA Form 21-0820 Report of General Information. Instead, he believes he was exposed to Agent Orange based on his service on the USS Cochrane. Specifically, he claims that that while aboard the USS Cochrane during the Vietnam War Era, he conducted operations in DaNang Harbor and was required to help unload riverboats that dropped off supplies. See Correspondence received June 21, 2010. He also noted that the wind would blow "clouds of Agent Orange" onto the USS Cochrane. Despite the Veteran's belief, there is no probative evidence that he was exposed to herbicides, including Agent Orange. Recognition is given to the fact that the USS Cochrane was in the official waters of the Republic of Vietnam on several occasions in 1968. See National Archives and Records Administration memo dated September 23, 2015. Deck logs from the USS Cochrane show that it operated off of the cost of South Vietnam in March 1968 and later anchored in DaNang Harbor during the Veteran's service. The records do not show that the vessel was in the in-land waterways of Vietnam during this period. The Board is aware the Court has held that VA's interpretation of the regulations designating certain bodies of water offshore as "blue water," rather than inland, "brown water" waterway, was inconsistent with the purpose of VA regulations pertaining to inland waterways and the presumption of herbicide exposure in the Republic of Vietnam. Gray v. McDonald, 27 Vet. App. 313 (2015). The Court held that a fact-based assessment must be made regarding the probability of herbicide exposure even with regard to offshore areas not traditionally considered inland waterways. Such triggered a Remand by the Court to allow VA to reevaluate its definition of inland waterways. The Court also pointed out that although the herbicide agent exposure presumption is purportedly applied where there is evidence of spraying, the documents the Secretary relied upon were devoid of any indication that VA made a fact-based assessment of the probability of exposure in the offshore water location from aerial spraying. In response to the Gray decision, VA revised its adjudication procedures manual, to include a revised definition for inland waterways and offshore waters. See VBA Manual M21-1, IV.ii.1.H.2.c.; see also VBA Manual M21-1, IV.ii.2.C.3.m. Inland waterways are defined as fresh water rivers, streams, and canals, and similar waterways. Because those waterways are distinct from ocean waters and related coastal features, service on those waterways is considered 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. VBA Manual M21-1, IV.ii.1.H.2.c.; VBA Manual M21-1, IV.ii.2.C.3.m. 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. That includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. Under the amended criteria, consistent with the pre-amended criteria, DaNang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. VBA Manual M21-1, IV.ii.1.H.2.c. DaNang Harbor is open to the sea, is not connected to any major inland river, and has deep channels for the anchorage of large ships. Significantly, there is no historical evidence or evidence of record of extensive herbicide aerial spraying over the DaNang Harbor. Further, a listing of ships associated with service in Vietnam and exposure to herbicide agents was recently updated and, while not complete, it does provides some information in determining which vessels may be subject to the presumption. VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. The Veteran served aboard the USS Cochrane which is shown to have been in the "blue" waters of Vietnam and is not listed among the vessels presumed to have had herbicide exposure due to its presence in the "brown" waters. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, updated March 23, 2017. The Veteran has repeatedly denied any service on the ground in Vietnam, most recently in September 2016. Accordingly, the presumption of exposure under these circumstances does not apply. The Board is sympathetic to the Veteran's complaints of exposure to the river boats and the wind coming from Vietnam. However, the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange in service. Accordingly, the Board finds no competent evidence to support the Veteran's claims of entitlement to service connection for diabetes mellitus based on presumptive exposure to herbicides. Notwithstanding the foregoing, the Veteran is not precluded from seeking service connection on a separate theory of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's post service treatment records indicate that he has a current diagnosis of diabetes mellitus, type II. Regarding the presumptions based on diabetes mellitus, type II as a chronic disease or based on continuity of symptomatology, there is no evidence, lay or medical, that the disease began in service and continued or that it was diagnosed within the first year following his separation from service. See 38 C.F.R. §§ 3.303(b), 3.309. Indeed, the Veteran's claim notes that he was not diagnosed with diabetes mellitus until May 2008, nearly 40 years after service discharge. The Veteran's service treatment records do not indicate (and the Appellant does not allege) diabetes symptoms during service. Rather, at the time of his December 1968 separation examination, his endocrine system was noted to be normal. There is no evidence of treatment for diabetes mellitus until June 2008. There is also no medical evidence of record suggesting a nexus between the Veteran's military service and the development of diabetes mellitus, type II. Based upon the evidence of record, the Board finds that diabetes mellitus, type II was not manifest during active service and that the preponderance of the evidence fails to establish that diabetes mellitus, type II is etiologically related to service. Consideration has been given to the Veteran's personal assertion that his diabetes mellitus, type II is related to service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to probative lay comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Based on the above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is denied. ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs