Citation Nr: 1753310 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-10 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus (DM) type II, to include as a result of herbicide agent exposure. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to July 1966. The Veteran was awarded the Armed Forces Expeditionary Medal for participation in the Vietnam area of operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony before the undersigned Veterans Law Judge at a July 2017 videoconference hearing. A transcript of the hearing has been associated with the Veteran's electronic claims file. The Veteran submitted additional evidence in July 2017 after his Board hearing that has never been considered by the RO in the first instance. However, since the Veteran's substantive appeal was filed after February 2, 2013, it is presumed the Veteran has waived initial RO consideration of this evidence as he has not filed such an objection. See 38 U.S.C. § 7105(e). The Board may proceed with appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. Within the appeals period, the Veteran has been diagnosed with DM type II, a disease associated with herbicide agent exposure under VA regulations. 2. The evidence is at least in equipoise on the question of whether the Veteran had qualifying Vietnam service for presumptive service connection purposes while serving aboard the USS Pluck. CONCLUSION OF LAW The criteria for service connection for DM type II have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Given the favorable outcome of this award of service connection for DM type II, no prejudice to the Veteran could result. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The regulations pertinent to the Veteran's service connection claim (38 C.F.R. §§ 3.303, 3.307, 3.309) were initially provided to the Veteran in the March 2014 Statement of the Case. Since he has had adequate notice of the pertinent laws governing this appeal, they will not be repeated here. The Board initially notes that the Veteran's VA treatment records reflect a diagnosis of DM type II. See July 2011 Problem List. Therefore, the Veteran has a current disability. Moreover, the regulations provide that this condition is presumed to be attributable to certain herbicide agents. 38 C.F.R. § 3.309(e) (2017). Therefore, the pertinent question is whether an in-service incurrence, in this case through exposure to herbicide agents during service, has also been satisfied. In developing the Veteran's claim of herbicide agent exposure due to Republic of Vietnam service, the RO requested information from the Personnel Information Exchange System (PIES) and the Joint Services Records Research Center (JSRRC) regarding the nature of the Veteran's service. In July 2011, PIES confirmed to VA that the Veteran served aboard the USS Pluck from February 10, 1965 to February 22, 1965 and March 12, 1965 to April 2, 1965 in the official waters of the Republic of Vietnam; however, PIES was unable to provide conclusive proof that the Veteran had in-country service during this time period. In July 2011, the VA received the following response from the JSRRC pertaining to the deck log history for the USS Pluck: We have reviewed the 1965 command history for the USS PLUCK (MSO-464). The history documents that the ship departed Subic Bay; Republic of the Philippines, enroute to Vietnam, on February 8, 1965. During this period, her mission would be to conduct patrols off the coast near the mouth of the Mekong River. The USS PLUCK returned to Subic Bay on February 25 and on March 17, 1965, she departed for Vietnam where she would continue to conduct counter infiltration patrols off the coast. On April 4, 1965, the USS PLUCK returned to Subic Bay and began preparations for her voyage to Australia. The ship did not return to Vietnam for the remainder of the year. We have also reviewed the February 10 to April 2, 1965, deck logs for the USS PLUCK. The deck logs concur with the command history. However, the deck logs further document that the ship operated off the coast of Cape Saint Jacques in the Republic of Vietnam during the period February 10-22, 1965. The ship inspected civilian vessels off the coast of the Republic of Vietnam during the period March 20 to April 2, 1965. Neither the history nor the deck logs document that the ship docked, transited the inland waterways or that personnel stepped foot in the Republic of Vietnam. Despite this negative evidence, the Veteran has testified to his belief that his DM type II is the result of exposure to Agent Orange, while stationed on the USS Pluck in the shallow waters of the Republic of Vietnam. Record evidence confirms the USS Pluck conducted minesweeping operations off the coast of South Vietnam and was involved in Operation Market Time, a patrol up and down the coast of South Vietnam designed to intercept the North Vietnamese transport of munitions and arms by small fishing boats and junks to the South. See July 2011 Web Documents; see also July 2011 Statement in Support of Claim. At the July 2017 Board hearing, the Veteran provided detailed, highly credible testimony regarding his service aboard the USS Pluck. When questioned whether his ship ever docked in Vietnam or whether he ever personally had an occasion to be on the ground in Vietnam, the Veteran responded equivocally with a "yes and no." 7/7/17 Board Hearing, p. 4. The Veteran then testified regarding a specific incident that occurred on March 30, 1965, in which the crew of the USS Pluck was ordered to investigate a large fleet of fishing boats and junks in an inlet bay south of the Nghiem Kinh Chieu Islands. Id. at pp. 5-6; see also November 2011 lay statement. The Veteran explained that while turning the ship around in the bay, the rear of the ship struck land and bottomed out. Id. The Veteran used his feet to push off the bank and move the ship away from the shore. Id. The Veteran contends he was close enough to the shore of the Republic of Vietnam to constitute qualifying service for the purposes of presumptive service connection. In support of his contentions, the Veteran has submitted the deck log from March 30, 1965 for the USS Pluck. Independent evidence elsewhere in the record has already confirmed that the Veteran was aboard the USS Pluck on this date. See July 2011 PIES response; see also Service Personnel Records June 1965 notation. A review of this deck log confirms that the Veteran was located in the bay south of the Nghiem Kinh Chieu Islands Cluster on this date. The Board takes judicial notice of the fact that, geographically, these islands, the largest of which are now known as Hòn Seo, are in the shallow waters immediately off the coast of Qui Nhon, Vietnam. Such a conclusion is confirmed by the latitude and longitude coordinates contained within this deck log, which place the Veteran in close proximity to the coast of Qui Nhon and the Hòn Seo islands. The Board is cognizant that neither the evidence, nor the Veteran's claims, suggest that the USS Pluck ever navigated the inland waterways of Vietnam; however, the vessel was so close to the shore-close enough to bottom out in shallow waters-that affording reasonable doubt to the Veteran, the Board is compelled to conclude that the Veteran's Vietnam service included "brown water" presence. Pursuant to regulation, service in the Republic of Vietnam includes 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), 3.313(a) (2017). Generally, service aboard a ship that operated in the inland waterways of Vietnam ("brown water") would qualify, but service aboard a ship that only operated in offshore waters ("blue water") does not qualify. In 2012 the Secretary of VA specifically considered offshore service and determined, after review of a May 2011 Institute of Medicine (IOM) of the National Academy of Sciences report entitled "Blue Water Navy Vietnam Veterans and Agent Orange Exposure," that the evidence does not support establishing a presumption of exposure to herbicide agents for blue water Navy veterans. See Notice, 77 Fed. Reg. 247, 76170-76171 (December 26, 2012). The Veterans' Benefits Administration (VBA) Training Letter 10-06 provides detailed information concerning "blue water" vessels of the Navy and herbicide agent exposure. See VBA Training Letter 10-06 (September 9, 2010). Specifically, the letter explains that in order for the presumption of herbicide agent exposure to be extended to a blue water Navy veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. While the USS Pluck is not listed as a ship associated with exposure to herbicide agents, including by traveling in inland waterways, the Veteran's highly credible testimony, corroborated by geographic coordinates in the deck log, confirm that the Veteran's ship was so close to the shore that it is equivalent to serving in "brown water." Resolving all reasonable doubt in favor of the Veteran, and weighing the conflicting evidence set forth above, the Board finds that the evidence is at least in equipoise on the issue of whether the Veteran had "brown water" presence in the Republic of Vietnam during the Vietnam Era. Moreover, as noted, "brown water" Navy veterans receive the same presumption of herbicide agent exposure as veterans who served on the ground in the Republic of Vietnam. Because the Veteran is presumed to have herbicide agent exposure and DM type II is a disease associated with herbicide agent exposure under 38 C.F.R. § 3.309(e), service connection for DM type II is warranted. In light of the above, the Board declines to address the Veteran's contentions regarding secondhand herbicide agent exposure due to drinking and bathing in sea water. See 7/7/17 Hearing Testimony, p. 5; see also November 2011 lay statement. ORDER Entitlement to service connection for DM type II is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs