Citation Nr: 1744151 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 11-33 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for diabetes mellitus due to in-service herbicide exposure. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in September 2015. A transcript is of record. In February 2016, the Board remanded this issue for further development. That development having been addressed, the case has since returned to the Board. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during active duty service. 2. Diabetes mellitus was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110 , 1112, 1116 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The phrase "served in Vietnam" includes service on Vietnam's inland waterways (brown water) but not service in offshore waters (blue water). See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, 1.H.2.a ("Agent Orange aerial spraying occurred within the land boundaries and affected the inland waterways . . . [but] was not sprayed over RVN's offshore waters."). Inland waterways include "those rivers, canals, estuaries, delta areas, and interior or enclosed bays within the land boundaries of RVN itself." Id. Offshore waters are waters other than inland waterways and generally comprise of the waters off the coast of RVN. Thus, Veterans who served on Vietnam's inland waterways are entitled to the presumption of service connection for certain herbicide diseases. Veterans who served in offshore waters-and never went ashore or entered inland waterways-do not qualify for the herbicide presumption. Haas v. Peake, 525 F.3d at 1187-1190 (upholding VA's interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass ("foot-on-land") or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure); VAOPGCPREC 27-97 (July 1997) (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not, in and of itself, qualify as "service" in Vietnam); VAOPGCPREC 7-93 (August 1993) (noting a distinction between larger ocean-going vessels, referred to as "blue water" vessels, and smaller "brown water" vessels that patrolled near shore or along rivers). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including adult onset diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). In the present case, the Veteran has explicitly denied that he ever set foot on the landmass of Vietnam. What he maintains, in essence, is that his service aboard the U.S.S. Berkeley (DDG-15) included service near the shore Da Nang Harbor and Cam Ranh Bay, and that he was close enough to shore that he should be considered to have been in the country. See October 2009 Correspondence; September 2015 Board Hearing. The Veteran has stated while he was stationed aboard the ship, the U.S.S. Berkeley moored many times about 250 yards off shore in Da Nang Harbor and Cam Ranh Bay to provide gunfire support to the troops onshore. He stated that the ship also took on supplies from being docked as well. The Veteran explained that the ship was close enough to shore that he was instructed to remove his officer's rank insignia from his uniform and to wear a ball cap to prevent making himself a target for enemy snipers. In addition, the Veteran has provided a statement from a fellow service member, P.S., concerning his recollection that the U.S.S. Berkeley made several visits to Da Nang Harbor where the ship anchored and docked. The Veteran's spouse also submitted a statement asserting that she remembers calling the Veteran on the U.S.S Berkeley but could not talk to him for a prolonged amount of time, as he was in Da Nang and rockets were flying overhead. See October 2015 Lay Statement. The evidence of record confirms that the Veteran served aboard the U.S.S. Berkeley while the vessel was in the "official waters" of the Republic of Vietnam from March 25, 1970 to April 10, 1970, from April 28, 1970 to May 24, 1970; and from June 14, 1970 to July 22, 1970. The Veteran has provided excerpts from his cruise book showing that the U.S.S. Berkeley was in the Tonkin Gulf as an escort destroyer for the U.S.S. Constellation and the U.S.S. Coral Sea during the time period from March 25, 1970 to April 10, 1970; that it assumed the role of Naval Gunfire Support Unit off the coast of South Vietnam from May 10, 1970 to May 24, 1970; and that on June 16, 1970, for a 35 days, it was heavily involved in the task of providing gunfire support for allied forces along the cost of South Vietnam. In order to establish service in the Republic of Vietnam for the purpose of the presumption of herbicide exposure under § 3.307(a)(6), a service member generally must have set foot on the landmass of Vietnam, or served on a smaller "brown water" vessel navigating its inland waterways. Haas, 525 F.3d at 1197. Service in offshore waters, in high-altitude airspace above Vietnam, and service in other locations does not constitute service in Vietnam, unless the conditions of such service involved duty or visitation on the landmass or inland waterways of Vietnam. See id.; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a) (2014). With regard to inland waterways, qualifying service in the Republic of Vietnam 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). See Haas, 525 F.3d at 1187-1190. In Gray v. McDonald, No. 13-3339 (U.S. Vet. App. 23, 2015), however, the Court held that, with respect to Da Nang Harbor, the manner in which VA defined inland waterways was both inconsistent with the regulatory purpose and irrational. The Court found no meaningful difference in characteristics between Da Nang Harbor (designated as "blue water") and Quy Nhon and Ganh Rai Bay's (designated as "brown water"). The Court remanded the case for VA to re-evaluate its definition of inland waterways, particularly as it applies to Da Nang Harbor. Pursuant to the Gray decision, in February 2016, VA updated its procedural manual with respect to the distinction between inland waterways ('brown water') and offshore waters ('blue water'). As pertinent to this case, Da Nang Harbor was specifically identified as a geographic location determined to be "offshore waters." M21-1, pt. IV, subpt. ii, ch. 1, § H.2.b (Feb. 5, 2016). The rationale for excluding this harbor as inland waterways was that it was open to the sea with extensive entry distance for easy access; were not long or narrow; and had deep water channels contiguous with the South China Sea, for easy ship anchorages. In addition, Da Nang Harbor was not connected to a major inland river. Additionally, there was no historical evidence of extensive Agent Orange aerial spraying in the Da Nang area, so the potential for Agent Orange exposure was minimal. Review of the Veteran's claims file confirms that he served aboard the U.S.S. Berkeley. Additionally, U.S.S. Berkeley does appear on VA's list of "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," as updated May 5, 2016, showing that it sent small boats ashore at Da Nang and elsewhere for gunfire support missions during May 1970 to June 1970 - during the relevant timeframe associated with the Veteran's service aboard the vessel. See also September 2017 JSRRC Response (affirming that the U.S.S. Berkeley briefly anchored several times in the Da Nang Harbor). While the Board acknowledges that the U.S.S. Berkeley anchored at Da Nang Harbor, this does not qualify under the inland waterways presumption for herbicide exposure. Further, the Board finds it highly probative that the Veteran has asserted that he did not go ashore in the Republic of Vietnam, either on leave or on duty. See November 2009 Veteran Correspondence; September 2015 Board Hearing. As the Veteran served exclusively on a blue water ship and there is no indication that he ever visited the mainland of the Republic of Vietnam, the Board finds that the preponderance of the evidence is against the finding that the Veteran served in the Republic of Vietnam for purposes of the herbicide presumption. Therefore, the Board finds that the Veteran cannot be presumed to have been exposed to herbicides, to include Agent Orange, during his active duty service. 38 U.S.C.A. § 1116 (f). Thus, service connection on the basis of the presumptions afforded herbicide exposed veterans is not warranted. 38 U.S.C.A. § 1116 ; 38 C.F.R. § 3.307 (a)(6). Diabetes is also subject to presumptive service connection as a chronic disease. 38 U.S.C.A. § 1112 (a); 38 C.F.R. §§ 3.307 , 3.309(a). The record is clear, however, that the Veteran's diabetes was initially identified many years after service. The service treatment records are negative for evidence of diabetes. The Veteran was first diagnosed as having diabetes in 1996, more than 20 years after service. As there is no showing of diabetes in service or to a compensable degree in the year after service, presumptive service connection for diabetes mellitus as a chronic disease is not warranted. Service connection is still possible in this case if the record demonstrates the Veteran's direct exposure to herbicides and a link between that exposure and diabetes , i.e., exposure that is not based on the regulatory presumptions of 38 C.F.R. § 3.307. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (when the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation). Here, the Board finds that the evidence establishes that the Veteran was not exposed to herbicides during active duty service. As noted above, his assertion is that while aboard his ship, he was docked so close to shore that he should be considered to have been in the country, i.e., that he set foot on the landmass of Vietnam. There is no evidence of record showing that the Veteran was exposed to an herbicide agent during service. The Veteran has not reported any other in-service events or injuries to account for his diabetes, and service records are negative for any findings or symptoms of the disease. There is also no lay or medical evidence of diabetes until decades after the Veteran's separation from service. Finally, the record is negative for any competent medical evidence in support of the claim, to include any medical opinions relating the Veteran's diabetes to any incident of service. Thus, the Board must conclude that the preponderance of the evidence is against the claim and service connection for diabetes mellitus is not warranted. 38 U.S.C.A. § 5107 (b) (West 2014). ORDER Entitlement to service connection for diabetes mellitus due to in-service herbicide exposure is denied. _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals