Citation Nr: 1741887	
Decision Date: 09/25/17    Archive Date: 10/04/17

DOCKET NO.  11-07 933	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure.  


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. D. Regan, Counsel

INTRODUCTION

The Veteran served on active duty in the Navy from October 1965 to October 1969.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure.  

The Board notes that although service connection for diabetes mellitus, to include as due to Agent Orange exposure, was previously denied in a final June 2005 Board decision, relevant service department records, specifically deck logs for the USS America dated in September 1968 and October 1968, that existed, but that had not previously been associated with the claims folder, were obtained in April 2014.  As such, VA must reconsider the Veteran's claim for entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure, without regard to the finality of the June 2005 Board decision, and thus has identified the issue on appeal as set forth on the title page.  38 C.F.R. § 3.156 (c) (2016).  

In May 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge.  


FINDINGS OF FACT

1.  The Veteran did not set foot in the Republic of Vietnam and did not serve on a ship that operated in the inland waterways of the Republic of Vietnam during service. 

2.  The evidence does not establish that that the Veteran was exposed to Agent Orange during his period of service.  

3.  The Veteran's diabetes mellitus was not present during service or for many years thereafter, and was not caused by any incident of service.  


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, to include as due to Agent Orange exposure, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  

A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange).  In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e).  Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e).  (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  38 C.F.R. § 3.309 (e) (Note 3.).  

"Service in the Republic of Vietnam" includes service in the inland waterways of Vietnam and excludes veterans who served aboard ships operating in Vietnam's offshore waters unless the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii).  Service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A).  Service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  "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 has also compiled a list of Navy and Coast Guard ships, including "blue water" ships that were associated with service in Vietnam and exposure to herbicide agents.  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The Veteran contends that he has diabetes mellitus that is related to service, to include as due to Agent Orange exposure.  He specifically maintains that he was exposed to Agent Orange while serving aboard the USS America.  He reports that he served aboard the USS America when it was in the offshore waters of the Republic of Vietnam, and that he was exposed to Agent Orange on the flight deck from spray and mist from the water, as well as from wind blowing from the Coast of the Republic of Vietnam.  He also indicates that the water he drank and showered in may have been contaminated by Agent Orange.  The Veteran further reports that he was exposed to Agent Orange while deployed at "Yankee Station" aboard the USS America three to four miles off the Coast.  He also maintains that he was exposed to debris that had been exposed to Agent Orange.  The Veteran does not contend that he ever set foot in the Republic of Vietnam.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The Veteran served on active duty in the Navy from October 1965 to October 1969.  His DD Form 214N indicates that he received the Vietnam Service Medal (with one bronze star) and the Republic of Vietnam Campaign Medal, but does not show that he had actual service in the Republic of Vietnam.  The Veteran's service personnel records indicate that he served aboard the USS America and that he served during a period in which the ship was present off the Coast of the Republic of Vietnam.  

An April 2002 response from the National Personnel Records Center (NPRC) indicates that the Veteran's dates of service off the coast of Vietnam were from July 10, 1967, to August 2, 1968; August 18, 1968, to September 11, 1968; and from September 28, 1968, to October 30, 1968.  The NPRC did not report if the Veteran actually set foot in the Republic of Vietnam.  

In April 2014, deck logs for the USS America, dated in September 1968 and October 1968, were associated with the claims file.  The deck logs show that the USS America performed operations, but do not indicate that it was deployed in the inland waterways of the Republic of Vietnam.  

Additionally, the Board notes that it is also VA policy that "service in Vietnam" does not include service of a veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace.  See VAOPGCPREC 7-93.  It logically follows that "service in Vietnam" would also not include the service of a veteran whose only contact with Vietnam was fueling and maintaining aircraft which overflew Vietnam.  

Further, VA has considered the issue of whether Vietnam veterans of the Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels in its 2008 rulemaking and has based its definition of "service in Vietnam" accordingly.  The United States Court of Appeals for the Federal Circuit has addressed this issue and upheld VA's interpretation of section 3.307(a)(6)(iii).  See Haas, 525 F.3d at 1168, 1193-1195.

The Board also observes that the VA Adjudication Procedure Manual includes a compiled list of "blue water" naval ships that operated in "brown water" sufficient to allow for a finding of a presumption of exposure to herbicide agents.  The updated list as of December 2014 includes multiple ships, but the USS America is not among them.  Thus, current research does not show that the USS America and had "brown water" service in Vietnam.  

In light of the above, the Board finds that the evidence in the claims file is insufficient to establish the requisite service in the Republic of Vietnam to allow for a presumption of exposure to herbicide agents such as Agent Orange.  See 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d at 1168.  Nor does the evidence show actual exposure to Agent Orange.  

The Veteran's service treatment records do not show treatment for diabetes mellitus.  

Post-service private and VA treatment records show that the Veteran was treated for diabetes mellitus on multiple occasions.  

The Board observes that the Veteran does not contend, and the probative evidence does not show, that he was diagnosed with diabetes mellitus during service, or within one year of service separation.  The probative evidence of record also does not suggest that the Veteran's diabetes mellitus is related to his period of service.  In fact, the probative evidence of record is against this finding, indicating that the Veteran's current diabetes mellitus began many years after service, without relationship to service.  

The Veteran has asserted in statements and testimony that his diabetes mellitus had its onset during his period of service.  While the Veteran is competent to report symptoms that he thought were related to diabetes mellitus during service or since service, he is not competent to diagnose his currently claimed diabetes mellitus as related to service, to include as due to exposure to Agent Orange.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself).  Moreover, he is not competent to establish that he was exposed to Agent Orange during service.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service).  In the Veteran's case, such evidence requires a certain level of expertise given the medically complex question.  A Lay opinion is not sufficient in this case to establish exposure.  

The preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure; there is no doubt to be resolved; and service connection for diabetes mellitus, to include as due to Agent Orange exposure, is not warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs