Citation Nr: 1757069 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-17 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for left lower extremity peripheral neuropathy. 3. Entitlement to service connection for right lower extremity peripheral neuropathy. 4. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1968 to May 1972 and from August 1974 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in January 2017. The hearing transcript is associated with the record. The issues of entitlement to service connection for right and left lower extremity peripheral neuropathy and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's diabetes mellitus did not manifest until many years after service and is not related to an incident or event of service origin. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 decision). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a), such as diabetes mellitus, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1133, 1137; 38 C.F.R. § 3.309. Under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), as to Veterans who served in Vietnam during a certain time period, certain diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. Regulations provide that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though 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. The list of diseases subject to the regulatory presumption of service connection due to exposure to herbicides while serving in the Republic of Vietnam includes diabetes mellitus, if manifest to a degree of 10 percent or more. A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide agent commonly referred to as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. However, VA has determined that the presumption of herbicide agent exposure for veterans who 'served in the Republic of Vietnam' is limited to veterans who served on or visited the Vietnamese landmass or its inland waterways, and does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the 'blue water' Navy. See 38 C.F.R. § 3.313(a) ; VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute 'Service in the Republic of Vietnam' for purposes of 38 U.S.C.A. § 101 (29)(A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's statutory interpretation excluding the 'blue water' Navy from presumptive herbicide agent exposure). Recently, in Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims held that VA's interpretation excluding certain bays and harbors, including Da Nang Harbor, from the regulatory definition of inland waterway was arbitrary and capricious. VA has since revised its policy to clarify that certain bays and harbors identified by VA may qualify as inland waterways. VA's policy states that inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam, but do not include open deep-water harbors, such as those at Da Nang, Nha Trang, Qui Nhon, Cam Ranh, Vung Tau, and Ganh Rai. VA has determined that these harbors are not inland waterways because they are open to the sea with extensive entry distance for easy access; they are not connected to a major inland river; they are not long or narrow; they have a deep water channel for easy ship anchorages, and they have no historical evidence of extensive Agent Orange aerial spraying. M21-1, Part IV, ii.1.H.2. VA has also established a list of ships that traveled on inland waterways, docked to a pier or the shore of Vietnam, or operated on close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller craft from the ship regularly delivered supplies or troops ashore. The availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Facts and Analysis - Diabetes Mellitus The Veteran has a current diagnosis of diabetes mellitus, satisfying the first element of service connection. In regard to the second element, the Veteran does not assert, and the evidence does not otherwise reflect, in-service manifestation of diabetes mellitus. Instead, he asserts an injury via exposure to tactical herbicide agents through contact with fruit, vegetables, offshore water and supplies; he also states that one of his ships, the U.S.S. Bugara, "took on fresh water" while it was anchored in Da Nang Harbor. See, e.g., January 2011 Correspondence; January 2017 Board Hearing at pp. 3, 10. The Veteran has not provided further commentary on what is meant by "fresh water" in this context. To the extent the Veteran's submarine may have acquired fruits, vegetables, and supplies from other naval vessels, there is no indication from where these supplies originated or whether they were contaminated with tactical herbicide agents, and the Veteran is not competent to make this determination. In addition, as noted above, Da Nang Harbor is not considered to be an inland waterway, and the U.S.S. Bugara is not on the list of ships that traveled on inland waterways, docked to a pier or the shore of Vietnam, or operated on close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller craft from the ship regularly delivered supplies or troops ashore, and the Veteran does not contend otherwise, meaning that any water that it "took on" would not have been water from the inland waterways of Vietnam. As such, the Board finds that the Veteran was not exposed to tactical herbicide agents while on active duty. In reaching this conclusion, the Board acknowledges that the Veteran was authorized to wear the Vietnam Service Medal with one bronze star by virtue of service aboard the U.S.S. Bugara for several date ranges in late spring and summer 1969. The Board also acknowledges the Veteran was awarded the Republic of Vietnam Gallantry Cross with Palm for service related to the Vietnam conflict while aboard the U.S.S. Sculpin. Nevertheless, neither of these awards is reflective of service on the Vietnamese landmass or its inland waterways to allow for a presumptive disability award related to tactical herbicide agent exposure. As noted above, tactical herbicide agent exposure has not been established. Thus, the presumptive service connection for diabetes mellitus based on herbicide agent exposure must be denied. The Veteran did submit a VA Disability Benefit Questionnaire (DBQ) prepared by his private physician Dr. K.N. in January 2017. The resultant report reflects a current diagnosis of diabetes mellitus as of 2011, some 20 years after separation from active duty and well past the presumptive period for chronic disease, and provides no etiological opinion. There is no evidence, and the Veteran has not otherwise alleged, that diabetes mellitus first manifested in service or that he experienced continuity of symptomatology of diabetes mellitus since service. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker, 708 F.3d at 1339. The Board accordingly finds that the preponderance of the evidence reflects the Veteran's diabetes mellitus did not have onset in service and is not related to any incident of service origin. Accordingly, service connection is not warranted for this condition. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus is denied. REMAND The Veteran has a current diagnosis of obstructive sleep apnea. Both he and his spouse testified in his January 2017 Board hearing that his snoring began while he was still on active duty. He has never been afforded a VA examination with regard to his sleep apnea claim. In these circumstances, an examination is required to satisfy VA's duty to assist. The Veteran has a current diagnosis of peripheral neuropathy. In February 2017, he submitted a medical nexus statement from his physician Dr. K.N., which related this condition to hydraulic oil and diesel absorption. Insufficient rationale was provided and no medical treatise literature was cited in support of this conclusion. As such, a more comprehensive medical opinion is necessary to satisfy the VA's duties. Updated medical records should be obtained on remand, with the Veteran's assistance if appropriate. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment notes and associate them with the claims file. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. After updated records are obtained, schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. The complete claims file and a copy of this REMAND should be made available to and reviewed by the examiner. The examiner is asked to document the Veteran's medical history and complete the appropriate DBQ. Thereafter the examiner is asked to respond to the following inquiries: (a) Is it at least as likely as not (50 percent likelihood or greater) that the Veteran's sleep apnea had its onset during active duty? In answering this question, please consider the lay testimony from the Veteran and his spouse regarding in-service snoring. See January 2017 Board hearing transcript. (b) Is it at least as likely as not the Veteran's sleep apnea is otherwise related to active duty, to include conceded exposure to asbestos and/or ionizing radiation therein? Robust rationale should be provided for the opinions offered. Citation to appropriate medical treatise literature is encouraged but not required. If an opinion cannot be rendered without resort to speculation, it is essential that the examiner provide a rationale for the conclusion that speculation is necessary, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After updated records are obtained, schedule the Veteran for a VA examination to determine the nature and etiology of his peripheral neuropathy of the lower extermities. The complete claims file and a copy of this REMAND should be made available to and reviewed by the examiner. The examiner is asked to document the Veteran's medical history and complete the appropriate DBQ. Thereafter the examiner is asked to respond to the following inquiries: (a) Is it at least as likely as not (50 percent likelihood or greater) that the Veteran's peripheral neuropathy of the lower extremities had its onset during active duty? (b) Is it at least as likely as not the Veteran's peripheral neuropathy of the lower extremities is due to absorption of hydraulic oil and/or diesel while on active duty? In answering this question, please discuss the February 2017 letter of Dr. K.N. (c) Is it at least as likely as not the Veteran's peripheral neuropathy of the lower extremities is otherwise related to active duty, to include as a result of conceded exposure to asbestos and/or ionizing radiation? Robust rationale should be provided for the opinions offered. Citation to appropriate medical treatise literature is encouraged but not required. If an opinion cannot be rendered without resort to speculation, it is essential that the examiner provide a rationale for the conclusion that speculation is necessary, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. After completing the above development and any other additional development deemed appropriate, readjudicate the issues on appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs