Citation Nr: 1749698 Decision Date: 11/02/17 Archive Date: 11/13/17 DOCKET NO. 11-25 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1966 to September 1970. The matter on appeal comes before the Board of Veterans Appeals (Board) from a May 2009 rating decision by the Department of Veteran's Affairs, Regional Office located in Nashville, Tennessee (RO), which reopened the previously denied claim for entitlement to service connection for diabetes mellitus, but confirmed and continued the denial of the underlying claim. In November 2012, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. In pertinent part of a March 2015 decision, the Board reopened the previously denied claim for entitlement to service connection for diabetes mellitus, and remanded the underlying matter to the RO (via the Appeals Management Center (AMC)) for additional development. The Veteran recently submitted additional evidence, which included deck log and ship commendation for the USS Yorktowne during the period while the Veteran served aboard. A waiver of initial consideration has been obtained and associated with the claims folder. FINDINGS OF FACT 1. The Veteran did not set foot on land in the Republic of Vietnam, he did not serve on the inland waterways of the Republic of Vietnam, and he has not been shown to have been exposed to an herbicide agent, to include Agent Orange, during service. 2. The competent evidence of record shows that the Veteran's diabetes mellitus first manifest decades after his separation from service, and the preponderance of the evidence fails to establish that it is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a March 2010 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2016). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Board has considered the Veteran's representative's argument that another VA medical opinion should be sought that specifically considers the Veteran's report that eight out of ten of his former crewmates have been diagnosed with diabetes mellitus and that he does not have a familial history for diabetes mellitus. The Board has reviewed the report of a June 2015 VA medical opinion and notes that while the VA examiner did not discuss these specific assertions in the supporting rational statement, the Veteran's assertions were specifically brought to the VA examiner's attention in the Board's remand and the RO's medical opinion instructions. Notably, the Court of Appeals for Veterans Claims (CAVC) has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert's judgment on a medical question and the "essential rationale" for the opinion. The report must be "read as a whole" and a medical examiner is not required to provide a detailed review of medical history or comment on every piece of favorable evidence in the record. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where the opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. Here, the 2015 VA examiner noted that the medical conclusion was based on a review of the entire claims folder, which would include the Veteran's reports, and the VA examiner's rational statement sufficiently informs the Board that the medical conclusion reached based on medical expertise and judgement. The Board finds that the 2015 VA medical opinion is adequate, and another VA medical opinion is not necessary. The Veteran was also provided a hearing before the undersigned Veterans Law Judge in January 2013. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The record shows compliance with the Board's April 2015 remand directives. The records show that the Veteran's VA treatment records were updated. An October 2015 letter was sent that asked for the Veteran's assistance in identifying and obtaining outstanding records of pertinent treatment. The Veteran did not reply. The 2016 VA medical opinion report is adequate. No further action is required and the Board may proceed with adjudication of the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 2. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303 (a) (2016). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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 cardiovascular-renal disease, 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, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 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). There is a presumption of service connection for certain diseases associated with herbicide agent exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iv), 3.309(e) (2016). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran seeks entitlement to service connection for diabetes mellitus. The Veteran contends that he developed diabetes mellitus as a result of his exposure to Agent Orange. In the alternative, the Veteran contends that he developed diabetes mellitus as a result of his exposure to jet fuel (JP5) while maintaining aircrafts during his period of service. The Board will first address the Veteran's claim for service connection on a presumptive basis, and will then consider his claim for service connection on a direct basis. Presumptive Service Connection The Veteran contends that his diabetes mellitus was caused by herbicide agent exposure during service. Diabetes mellitus is listed as a disease associated with herbicide agent exposure. 38 C.F.R. § 3.309 (e) (2016). Post-service VA treatment records show that the Veteran has had diabetes mellitus since 1997. See May 2001 VA treatment record. A veteran who had active service in the Republic of Vietnam, from January 9, 1962 to May 7, 1975, will be presumed to have been exposed to an herbicide agent. In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii) (2016); VAOPGCPREC 27-97. The presumption of herbicide agent exposure is warranted for service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" Navy because they operated on the blue-colored waters of the open ocean. In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy veteran, development must provide evidence that a veteran's ship operated temporarily on the inland waterways of Vietnam or that a veteran's ship docked to the shore or a pier. Evidence that a veteran's ship docked and a statement of going ashore is sufficient for the presumption of herbicide agent exposure but, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. In light of the Gray v. McDonald, 27 Vet. App. 313 (2015), VA amended its VA's Adjudication Procedure Manual with clear guidance as to how VA defines offshore waters as 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. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b. Claims based on statements that exposure occurred because herbicide agents were stored or transported on a veteran's ship, or that a veteran was exposed by being near aircraft that flew over Vietnam or equipment used in Vietnam; do not qualify for the presumption of exposure. See Veterans Benefits Administration (VBA) Fast Letter 10-37 (September 10, 2010). The Veteran believes that he was exposed to Agent Orange while he served aboard the USS Yorktowne in Gulf of Tonkin off the coast of the Republic of Vietnam. The Veteran asserts that his exposure to Agent Orange was secondary to working on helicopters that had returned from Vietnam. The Veteran contends that he helped to maintain aircrafts that flew into Vietnam, which included cleaning these aircrafts with waterless cleaners that required to be rubbed on and wiped off. The Veteran believed that he was exposed to Agent Orange while cleaning the aircrafts that that had returned from Vietnam. See January 2005 statement in support of the case, and the November 2012 Board hearing transcript. The Veteran's service records show he was assigned Helicopter Anti-Submarine Squadron 4 and he served aboard CVS-10 (USS Yorktowne) in 1968. The Veteran's DD 214 shows that he is in receipt of the Vietnam Service Medal and Vietnam Campaign Medal. Initially, the Board notes that the Veteran's receipt of Vietnam Service Medal and Vietnam Campaign Medal is not sufficient evidence of exposure to an herbicide agent under the applicable laws and regulations. According to Department of Defense regulations, a Vietnam Service Medal was presented to any service member who served on temporary duty for more than 30 consecutive days while attached to, or regularly serving for at least one day with an organization participating in, or directly supporting ground (military) operations, or attached directly supporting military operations in the Republic of Vietnam, Thailand, Cambodia, Laos within the defined combat zone during the Vietnam era. See Department of Defense, 1348 C6.6.1.1.5 (revised September 1996). Similarly, the Vietnam Campaign Medal was awarded by the Republic of Vietnam to members of United States military forces serving six months or more in support of Republic of Vietnam military operations, to include service members serving outside the geographical limits of the Republic of Vietnam but providing direct combat support to the Republic of Vietnam armed forces. Thus, as the Vietnam Service and Vietnam Campaign medals were awarded to service members serving outside of the Republic of Vietnam, they are insufficient to establish in-country service. See also Department of the Navy SECNAV Instruction 1650.1H (August 22, 2008). A February 2005 PIES response noted that a Joint Service Records and Research Center (JSRRC) search revealed that the Veteran was attached to a naval unit that could have been assigned to ship or to shore, and for Department of Defense purposes the unit was credited with Vietnam service from March 1968 to April 1968. The February 2005 PIES response also shows there is no proof of the Veteran physically being in country of the Republic of Vietnam. The Veteran submitted a Meritorious Citation from the Commander of the Seventh Fleet that shows the USS Yorktowne provided support, including search and research, in the waters outside North Vietnam from January 1968 to June 1968. According to the dictionary entry on the Naval History and Heritage Command site, the USS Yorktown sailed in the Gulf of Tonkin from January 1968 to June 1968. Thus, the USS Yorktowne is considered a blue water ship. VBA Manual M21-1, IV.ii.1.H.2.b. Here, the Veteran's service records do not provide conclusive proof of his physical presence in Vietnam. In fact, the Veteran is not alleging that he was exposed to herbicides as a result of physical presence in Vietnam. Moreover, the Veteran has not alleged was exposed to herbicides as a result of his ship being docked in Vietnam and he went ashore or that his ship temporarily operated in the inland waterways of Vietnam. As such, in-service exposure to herbicides cannot be presumed. 38 C.F.R. § 3.309 (e). The records also contains a May 2009 memorandum from the JSRRC, in which it was noted an extensive search was conducted regarding information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam Era. To date, JSRRC has not found any evidence that indicates Navy or Coast Guard ships transported Tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, the JSRRC cannot document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircrafts that flew over Vietnam or equipment that was used in Vietnam. The memorandum further shows that JSSRC could not provide any evidence to support the Veteran's assertion of his exposure to Agent Orange while servicing aboard a naval ship during the Vietnam era. The Board has considered the Veteran's assertion that he was directly exposed to Agent Orange by contact with aircrafts that flew through areas in Vietnam where Agent Orange was sprayed. The Veteran cleaned these aircrafts and believed Agent Orange was present on the aircrafts during the cleaning process. The Board is aware that during the pendency of this appeal VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (Agent Orange) during the Vietnam era. See 38 C.F.R. § 3.307 (a)(6)(v). The Veteran's Form DD 214 reflects that he served in the Navy, and he was assigned to a helicopter anti-submarine squadron and not assigned to work on C-123 aircraft. The Veteran has not asserted that he helped maintain C-123 aircrafts. Accordingly, the revised provisions, 38 C.F.R. § 3.307 (a)(6)(v), do not apply. With respect to the Veteran's assertion that he worked on aircrafts that flew into the Republic of Vietnam, any herbicide contamination of the aircraft would have been minimal. Further, there is no evidence of record that such minimal herbicide contamination to an aircraft could have resulted in herbicide exposure to the Veteran while cleaning or otherwise working on the aircrafts. The Veteran neither advanced working on the aircrafts without proper protective gear, nor did he convey actual knowledge of breathing in any herbicides while working on the aircrafts. Again, the May 2009 JSRRC memorandum shows there is no record of the Veteran's exposure to herbicides while aboard a naval ship. The Veteran has not indicated that he possesses any specialized knowledge in the scientific field such that he could determine without testing that Agent Orange was present on any of the aircrafts that he serviced while stationed aboard USS Yorktowne in 1968. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. There is no objective evidence that the aircrafts carried by the USS Yorktowne were exposed to Agent Orange. Further, as noted above, claims based on statements that exposure occurred because the Veteran was in contact with aircrafts that flew to Vietnam do not qualify for the presumption of exposure. The Board acknowledges that the Veteran submitted a Board decision from 2016 for another veteran which found that the revised provisions of 38 C.F.R. § 3.307 (a)(6)(v) applied, even though that veteran maintained helicopters, and not C-123, that returned to naval ships after having landed in Vietnam. However, Board decisions are not precedential and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another veteran, even if the other claimants are similarly placed. 38 C.F.R. § 20.1303 (2016). As such, the prior Board decision is entitled to no probative weight in determining whether the Veteran in this case had herbicide agent exposure while cleaning and maintaining helicopters that had returned from Vietnam. The Board notes that the Veteran reported that his treating VA physician's informed him that diabetes mellitus has been associated with Agent Orange exposure. The VA physician stated that there was a connection between diabetes mellitus and Agent Orange exposure. See May 2010 notice of disagreement. In addition, the Veteran submitted an October 2011 private medical statement in which his medical provider stated that his diabetes mellitus was related to his exposure to agent orange during his period of service. These opinions were based on information from the Veteran about his exposure to an herbicide agent, and therefore, based on an inaccurate factual predicate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value). As noted, the evidence does not support presumptive or actual exposure to an herbicide agent. As detailed above, the Board finds that the preponderance of the competent evidence does not show that the Veteran was exposed to herbicides, to include Agent Orange, during his period of service. As such, presumptive service connection is not warranted. However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Direct Service Connection The Veteran contends that he developed diabetes mellitus as a result of his period of service. As noted in detail above, the record does not support his contention of exposure to herbicides. The Veteran has alternatively asserted that his diabetes mellitus is a result of his exposure to jet fuel (JP5) while maintaining aircrafts during his period of service. The Veteran reported that he was exposed to jet fuel on a daily basis. The Veteran reported that he worked on a line crew, and he was responsible for performing minor maintenance on aircrafts. His daily duties included greasing, oiling, checking fluid levels, and taking fuel samples. While taking fuel samples, the Veteran reported that jet fuel (JP5) would run down his arms and he would be soaked in JP5. He reports that jet fuel (JP5) contains Benzene which has been associated with the development of diabetes mellitus. See October 2011 statement in support of the case and the November 2012 Board hearing transcript. In addition, the Veteran reported that he has contacted 10 of his former unit members, who performed similar duties of aircraft maintenance as the Veteran during service. The Veteran learned that out of those 10 men, 8 of them have been diagnosed with diabetes mellitus. A review of the Veteran's service treatment records does not show any indication of diabetes mellitus. The report of an April 1970 examination prior to separation shows that the Veteran's endocrine system was evaluated as normal and that urinalysis was negative for sugar and albumin. Post-service medical records show that his diabetes mellitus had an onset in 1997. Based on a review of the claims folder, the Board finds that the competent evidence of record fails to demonstrate that the Veteran's diabetes mellitus was incurred during service or manifested within the first after separation from service. See 38 C.F.R. §§3.303, 3.307, 3.309. Rather, the Veteran's diabetes mellitus was diagnosed more than two decades after his separation from service. The Board finds the lapse in time after discharge from service to the showing of the current disorder to be highly probative evidence against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record fails to show that the Veteran's diabetes mellitus manifested to a degree of 10 percent within the one year following his active duty service discharge. Service connection based on presumption for chronic disease is not warranted. See 38 C.F.R. §§ 3.307 and 3.309. Moreover, there is no evidence to suggest continuity of diabetes mellitus symptoms since his period of service. See Walker, supra. The Veteran does not argue the contrary. Rather, the Veteran believes that he developed diabetes mellitus as result of his in-service exposure to jet fuel. However, the Board finds that the preponderance of the competent medical evidence is against such a finding. Here, the record contains medical opinions of record that consider whether the Veteran's diabetes mellitus is etiologically related to his period of service. The Board finds that the VA medical opinion weighs heavily against the Veteran's claims, and outweighs the private medical opinion that links his diabetes mellitus to his period of service. The Veteran has submitted an October 2011 private medical statement from Dr. R.J.J. which provides a medical link between the Veteran's diabetes mellitus and his exposure to jet fuel. This medical opinion was based on the Veteran's reported military service, as well as his lack of familial history of diabetes mellitus and his report that 8 out of 10 of his former crewmates have developed diabetes mellitus. A VA medical opinion was obtained in June 2015 that addressed the etiology of the Veteran's diabetes mellitus. Based on a review of the claims folder, including the Veteran's reported history, the VA examiner concluded that it was less likely than not that the Veteran's diabetes mellitus was etiologically related to his period of service, to include exposure to jet fuel. The VA examiner stated that an extensive medical research revealed no definitive causal connection between jet fuel exposure and diabetes mellitus. Rather, the medical literature noted that the risk factors for the development of diabetes mellitus included weight, fat distribution, inactivity, family history, race, and age. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). A review of the private medical opinion shows that it was solely based upon the Veteran's reported history and it does not include a review of the claims folder or cite to any medical literature in support of the medical conclusion rendered. More persuasive, in the opinion of the Board, is the opinion from the VA examiner who reviewed the Veteran's claims folder as well as conducted a review of the medical literature, and concluded that the Veteran's diabetes mellitus was less likely than not a result of his military service, to include exposure to jet fuel. The opinion is deemed more probative than the private opinion which is solely based on the Veteran's reported history, which in part, included an inaccurate history on exposure to herbicides. The private opinion is not based on a comprehensive review of the claims folder or supported by a review of the medical literature. On the other hand, the Board finds that the VA opinion contains a clear conclusion and a supporting reasoned medical explanation, which was based on a review of the claims folder and medical literature. The Board has considered the Veteran's own statements which suggest that his current diabetes mellitus is a result of his period of service. The record does not show that the Veteran has the medical training to determine the cause of diabetes mellitus. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Whereas, the record already contains statements from medical providers on the etiology of his diabetes mellitus, and the Board finds that the VA examiner's opinion is more probative in this matter. In sum, the Veteran is found not to be entitled to a regulatory presumption of service connection for diabetes mellitus. In addition, the preponderance of the evidence of record is against a finding that the Veteran's diabetes mellitus is etiologically related to his period of service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs