Citation Nr: 1703734	
Decision Date: 02/08/17    Archive Date: 02/23/17

DOCKET NO.  11-19 737	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for type II diabetes mellitus, including as due to exposure to herbicides.

2.  Entitlement to service connection anxiety disorder with panic attacks and depression, secondary to service connected hiatal hernia and gastroesophageal reflux disease (GERD). 

3.  Entitlement to service connection for lung disability, including scarring left lung and chronic obstructive pulmonary disease (COPD), including as due to exposure to harmful chemicals.


REPRESENTATION

Appellant represented by:	Douglas I. Friedman, Attorney



ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1971 to June 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In a June 2016 letter, the Veteran, through his representative, requested to withdraw his request for a Board hearing. Therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e) (2016).

The Board notes that the AOJ has adjudicated the Veteran's claim for dental trauma for treatment purposes. "When a veteran submits a claim for dental treatment directly to a VBA regional office, VBA will not provide a rating, but instead VBA will refer the claim to the VHA outpatient clinic, which is responsible for such claims." See 76 Fed. Reg. 14600, 14601 (Mar. 17, 2011), finalized by 77 Fed. Reg. 4469 (Jan. 30, 2012) (adopting the proposed rule as a final rule without changes). It does not appear that the AOJ has referred this matter to a VHA outpatient clinic.  Consequently, the AOJ must refer this matter to the VHA for appropriate action.


FINDINGS OF FACT

1. VA's February 2016 guidance that Da Nang Harbor is not located within the inland waterways of the Republic of Vietnam is consistent with the purpose and construction of the applicable regulation.

2.  The Veteran did not enter the inland waterways or otherwise set foot in the Republic of Vietnam during service.

3.  The preponderance of the evidence shows that the Veteran's type II diabetes mellitus was not present in service or until many years thereafter and is not related to service or to an incident of service origin.

4.  The evidence is at least evenly balanced as to whether the Veteran's COPD is a result of service.

5.  The Veteran's anxiety disorder with panic attacks and depression is caused by service-connected hiatal hernia with GERD.


CONCLUSIONS OF LAW

1. The criteria for service connection for type II diabetes mellitus, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 101(29), 1110, 1116, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2.  With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2016).

3.  The criteria for service connection for anxiety disorder with panic attacks and depression, secondary to service connected disease, have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2016).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2015), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Regarding the Veteran's claims for acquired psychiatric disability and lung disability, the Board is granting the claims in the below decision. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of such claims.

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187.

The record reflects that the RO provided the Veteran with the requisite notice in August 2009, prior to the initial October 2009 rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied.

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).

Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRS) have been associated with the claims file. All identified and available post-service treatment records have been obtained.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A VA examination was not obtained in connection with the claimed type II diabetes mellitus decided herein. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection for type II diabetes mellitus.   As indicated in the discussion below, although the Veteran has been diagnosed with diabetes, there is no evidence indicating that this disability may be associated with service.  To the extent that the Veteran has asserted that his diabetes is related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination.  Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Service Connection Laws & Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 

Establishing service connection generally requires 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. 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

In relevant part, 38 U.S.C.A. 1154 (a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Additionally, secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. See 38 U.S.C.A. § 3.310 (a),(b).

"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). A claimant need demonstrate only an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

III.  Type II Diabetes Mellitus

The Veteran contends that his type II diabetes mellitus is secondary to herbicide exposure when his ship, the USS Piedmont AD-17, anchored at Da Nang Harbor. Specifically, he believes that he was exposed to herbicides in drinking water and food.

Veterans exposed to Agent Orange or other listed herbicides are presumed service-connected for certain conditions, including diabetes mellitus, even if there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). To qualify for entitlement to service connection on a presumptive basis under 38 C.F.R. § 3.307, the disability must generally become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii).

A veteran who, during active military service, served in the Republic of Vietnam between January 6, 1962, and May 7, 1975 shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C.A. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. "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).

VA has determined that the presumption of Agent Orange 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 exposure).

The Veteran's DD Form 214 and personnel records reflect that he served aboard the USS Piedmont (AD-17) between December 1971 and October 1974. While the Veteran's awards include the National Defense Service Medal and Vietnam Service Medal with Meritorious Unit Citation, there is no indication in the service records that the Veteran served in the Republic of Vietnam. 

In support of his contention that he ingested Agent Orange and other dioxins while anchored at Da Nang Harbor, the Veteran submitted a December 2002 Media Release from the President of the Vietnam Veterans Association of Australia, which stated that Vietnam Veterans who served in the Australian Navy in Vietnam waters were more likely than not ingesting a lethal cocktail comprising of herbicides via drinking water. The President cited a study by the National Research Centre for Environmental Toxicology, Queensland Health Scientific Services, which demonstrated that evaporation distillation equipment used onboard Australian Navy ships did not remove, but in fact enriched certain contaminants such as dioxins in drinking water.

In May 2009, the National Personnel Records Center (NPRC) indicated that it could not determine whether the Veteran served in the Republic of Vietnam. The NPRC confirmed that the Veteran served aboard the USS Piedmont (AD-17) which was in the official waters of the Republic of Vietnam from June 29, 1972 to July 8, 1972. However, the record provides no conclusive proof of in-country service. 

A May 2009 U.S. Army and Joint Services Records Research Center (JSRRC) memorandum for record states that there is no evidence to show that Navy 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. Therefore, the JSRRC could provide no evidence to support a claim of exposure to tactical herbicides while aboard a Navy ship during the Vietnam War.

In September 2009, the VA issued a Formal Finding of a lack of information required to corroborate service in Vietnam. The memorandum noted review of the May 2009 responses, as well as the Veteran's contentions regarding drinking water distilled from the waters in Da Nang Harbor. The memorandum noted that the Veteran did not indicate that he disembarked in Vietnam, and a review of the Veteran's service treatment records does not show any treatment in Vietnam.

In July 2010, the RO issued a Nehmer Memorandum in accordance with Nehmer v. U.S. Department of Veterans Affairs. See 38 C.F.R. § 3.816. The memorandum stated that VA has confirmed that the Veteran did not have service in the Republic of Vietnam as defined by law. In the absence of any conclusive evidence that the Veteran served in the Republic of Vietnam, or was otherwise exposed to herbicides used in the Republic of Vietnam during military service, further review under Nehmer is not required.

In July 2010, the Veteran submitted a buddy statement which indicated that the USS Piedmont was in Da Nang Harbor in 1972. However, he stated that the only people that left the USS Piedmont were 3 or 4 postal clerks. The Veteran also submitted photographs of himself onboard a ship, as well as a photo of a ship near a landmass. He submitted an internet article which notes the USS Piedmont was at Da Nang Harbor between June and July of 1972. He additionally submitted a November 2009 Board decision which granted service connection for type II diabetes mellitus. This decision noted that "the Veteran's service was conducted on a ship that frequently anchored in a harbor within the territorial borders of Vietnam. Given the location of the [Da Nang] harbor and being surrounded by land on three sides, and the evidence that the harbor is within the territory of Vietnam, and resolving all doubt in the Veteran's favor, the Board [found] that Da Nang Harbor is an inland waterway for purposes of the regulation."

For the following reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for type II diabetes mellitus.

Preliminarily, the Board notes that any of its prior decisions purporting to concede Agent Orange exposure based on shipboard service in Da Nang Harbor, are inconsistent with the Secretary's current position (set out below), and not recognized as establishing precedent. See 38 C.F.R. § 20.1303 regarding nonprecedential nature of Board decisions.

Next, the Board notes that the USS Piedmont (AD-17) is not among VA's list of Navy and Coast Guard Ships associated with service in Vietnam and exposure to herbicide agents. See "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents;" see also http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (this is a highly detailed list of ships the VA has painstakingly found, based on decades of research from many other Veterans cases that the VA has researched over decades, were exposed to herbicides or entitled to the presumption, that have led to the grants of many claims).

With regard to whether the Veteran was exposed to herbicides at Da Nang Harbor, the Court in April 2015 held that VA's interpretation of 38 U.S.C. § 1116 (a) and 38 C.F.R. § 3.307 (a)(6)(iii) is inconsistent with the purpose of the statute and regulation and does not reflect the VA's fair and considered judgment. Specifically, the Court found that, with respect to Da Nang Harbor, the manner in which VA defines "inland waterways" was both "inconsistent with the regulatory purpose and irrational," and that it was therefore neither reasonable nor worthy of deference. See Gray v. McDonald, 27 Vet. App. 313 (2015).

In light of the Court's decision, VA reconsidered the definition of inland and offshore waterways, and on February 5, 2016, the Director of Compensation Service issued additional guidance on this issue. The applicable provisions of the M21-1 Manual were modified, specifically those provisions defining inland waterways and offshore waters and designating some of the specific locations determined to be within those categories. The manual reaffirmed that the presumption of exposure to Agent Orange requires evidence establishing duty or visitation within the Republic of Vietnam and that service on offshore waters does not establish a presumption of exposure to Agent Orange. The current manual specifically provides that:

Inland waterways are fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the RVN. VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below.

For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. VBA Manual M21-1, IV.ii.1.H.2.a. 

Inland waterway service is also referred to as "brown-water" Navy service. Id. By contrast, "off shore waters" are defined as the 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. 

Service in offshore waters is also referred to as "blue-water" Navy service. Da Nang Harbor is specifically identified as a location considered being within the offshore waters of the Republic of Vietnam. VBA Manual M21-1, IV.ii.1.H.2.c.

While the M21-1 Manual is generally not binding on the Board, it is instructive on the definition of inland waterways and offshore waters for the purposes of entitlement to presumptive service connection. 38 C.F.R. § 19.5; VBA Manual M21-1, IV.ii.1.H.2.

The question before the Board then is whether the Veteran served on inland waterways during service, or more specifically whether anchoring in Da Nang Harbor is appropriately characterized as service on an inland waterway rather than service in waters offshore of the Republic of Vietnam for purposes of 38 C.F.R. § 3.307 (a)(6)(iii). The Board finds that the VA guidance contained within the VBA M21-1 Manual is the most probative evidence of record on the question and that therefore the Veteran's service aboard the USS Piedmont AD-17 while it was anchored in Da Nang Harbor does not constitute service on the inland waterways of the Republic of Vietnam.

The Board initially finds that the determination of where to draw the line between offshore and inland waterways as delineated in the M21-1 Manual is neither arbitrary nor inconsistent. The Court noted in its memorandum decision the disparate treatment of some bays under previous VA guidance, specifically that while Da Nang Harbor was designated to be in offshore waters, both Quy Nhon Bay and Ganh Rai Bay were noted to be part of inland waterways. The new guidance is based in part on consideration of the Court's April 2015 holding and the evidence and arguments addressed therein. Thus, this issue has been addressed by the M21-1 Manual alterations as the VA will henceforth consider all harbors and bays to be offshore waters without exception.

Furthermore, the location of the line separating offshore waters from inland waterways is based, to the degree practically ascertainable, on the risk of actual exposure to herbicides. As noted by the U.S. Court of Appeals for the Federal Circuit, "it has proved difficult to determine which groups of veterans were exposed to herbicides and to what extent. Congress and the DVA have therefore resorted to a line-drawing process that concededly does not closely track levels of actual exposure." Haas v. Peake, 525 F.3d 1168, 1192 (Fed. Cir. 2008). However, 

Although exposure data is largely absent, review of military records demonstrate[s] that virtually all herbicide spraying in Vietnam, which was for the purpose of eliminating plant cover for the enemy, took place overland.... Regarding inland waterways, Navy riverine patrols reported to have routinely used herbicides for clearance of inland waterways.... Blue water Navy service members and other personnel who operated off shore were away from herbicide spray flight paths, and therefore were not likely to have incurred a risk of exposure to herbicide agents comparable to those who served in foliated areas where herbicides were applied. 

73 Fed.Reg. 20,566, 20,568  (Apr. 16, 2008). By contrast, evidence indicates that spraying took place over freshwater streams and rivers within the land borders of Vietnam. Inst. of Med. of the Natl Acads., BLUE WATER NAVY VIETNAM VETERANS AND AGENT ORANGE EXPOSURE, p.98 (2011) (information provided to the committee indicated that flight paths often included the spraying of surfaces of streams and rivers and that Brown Water Navy Personnel sprayed riverbanks.) 

On this basis, VA has previously explained that "it is reasonable to presume that any veteran who served within the land borders of Vietnam was potentially exposed to herbicides, unless affirmative evidence establishes otherwise. There is no similar reason to presume that veterans who served solely in the waters offshore incurred a significant risk of herbicide exposure." 73 Fed. Reg. 20,566, 20,571 (Apr. 16, 2008); see also 69 Fed.Reg. 44,614, 44,620 (July 27, 2004) (individuals who served in the waters offshore of the Republic of Vietnam were not subject to the same risk of herbicide exposure as those who served within the geographic land boundaries.)

Based on this line of reasoning and noting that "spraying was done on land, not over the water," the Federal Circuit has held that "[VA's] interpretation of section 3.307(a)(6)(iii) as excluding servicemembers who never set foot within the land borders of Vietnam thus was not unreasonable, and it certainly did not rise to the level of being 'plainly erroneous or inconsistent with the regulation.'"). Haas v. Peake, 525 F.3d 1168, 1193, 1195 (Fed. Cir. 2008) citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). More specifically, the Federal Circuit held that "[VA's] requirement that a claimant have been present within the land borders of Vietnam at some point in the course of his duty constitutes a permissible interpretation of the statute and its implementing regulation." Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008).

The Board's determination herein and the guidance contained in the VBA Manual M21-1, is consistent with prior Federal Circuit precedent and previous VA guidance. In addressing 38 C.F.R. § 3.307 (a)(6)(iii) in Haas, the Federal Circuit acknowledged the assertion by the appellant "that his ship was within 100 feet of the coast of Vietnam," but found that the "regulation, as interpreted by the DVA, made the statutory presumption of service connection unavailable to veterans such as [the appellant], who served on a naval vessel that traveled in the waters near Vietnam but who never went ashore." Haas v. Peake, 525 F.3d 1168, 1172, 1194   (Fed. Cir. 2008). Here, like Mr. Haas, the Veteran served aboard a deep-water vessel that traveled near to, but offshore the coast of Vietnam. Moreover, the Veteran does not contend that he left the ship and set foot in Vietnam.

Furthermore, the guidance as issued and the Board's application thereof are not contradicted by the facts of the case. The evidence of record does not show that herbicides were specifically sprayed over Da Nang Harbor or over the Veteran's ship while he was anchored therein or that that herbicides were otherwise used or sprayed in Da Nang Harbor. Indeed there is no logical reason to suppose or evidence of record to suggest that US military forces would intentionally spray defoliants over any bay or harbor. While the Board acknowledges that such an occurrence would be possible, the evidence does not suggest that this would happen with enough frequency to be the basis of a regulatory presumption. See 73 Fed. Reg. 20,566 (Apr. 16, 2008).

Moreover, the new guidance does not prohibit veterans who served aboard ships traveling through Vietnamese bays and harbors from obtaining service connection based on direct exposure to herbicides. Indeed the Veteran is still entitled to the presumption of service connection if the evidence shows that he was otherwise exposed to an herbicide agent during service. 38 C.F.R. § 3.309 (e). As noted above, the Veteran argues that he was exposed to herbicides through drinking water aboard the USS Piedmont. The Board has considered the Australian study discussed above, but finds that the article, and the submissions by the Veteran, are too general in nature to provide, alone, the necessary evidence to show that the Veteran was exposed to Agent Orange while onboard the USS Piedmont. See Sacks v. West, 11 Vet. App. 314, 316-17. The article does not provide statements for the facts of the Veteran's specific case, including the specific ship upon which he served.

In Haas, supra, the Federal Circuit highlighted the VA's rulemaking with respect to a similar Australian scientific study:

VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. . . . Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. . . . Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy.

Based on this analysis, VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'" See Haas, 525 F.3d at 1194 [citing 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)]. As such, the Board places little weight on these submissions, and they are outweighed by other evidence of record outlined above.

In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim that he was exposed to herbicides while in service and therefore that he cannot be presumed to be service-connected for diabetes mellitus. 38 C.F.R. §§ 3.307, 3.309(e).

The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation.  See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis).  However, the Veteran does not contend, and the evidence of record does not show, complaints, diagnosis, or treatment of diabetes mellitus during service or within one year of separation. Indeed, the first evidence of elevated blood sugar levels is noted in a March 1999 treatment record, which is nearly 20 years after separation from active duty.  As diabetes, a chronic disease, did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, entitlement to service connection is not warranted on a direct or presumptive basis.  38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1110, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a).
 
Thus, the Board finds that the weight of the evidence is against a finding of service connection for type II diabetes mellitus, including as due to herbicide exposure.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against his claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

IV.  COPD

The Veteran claims he has a current lung disability which is due to exposure to asbestos, silica, lead, mercury, and a "long list of other toxic compounds" while he worked in a foundry during his Naval service.  The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was "molder." Personnel records show that the Veteran was assigned to the foundry, making molds for metals and alloys. He assisted in the pouring of the molds. His STRs reflect one notation of upper respiratory infection (URI) in April 1980. On his June 1980 Report of Medical History, the Veteran endorsed ear, nose or throat trouble. 

Following service, a November 2001 VA treatment note indicated mild URI/pharyngitis. Treatment records dated February 2002, March 2003, January 2004, and January 2005 reflected complaints of ongoing cough. A June 2008 chest x-ray showed minor scarring/subsegmental atelectasis at the left lung base.

In September 2008, the Veteran submitted a claim for upper respiratory dry cough and pain in upper back and chest. In an accompanying statement, the Veteran stated that he worked in the foundries of various ships over 7 years. He was exposed to several toxic chemicals without ventilation. They only had protective safety glasses, so they breathed in everything that was in the air on a daily basis.

In a September 2009 statement, the Veteran also stated that, as a molder, he used asbestos in a dry powder to mix with water and gunnite to re-line furnaces. He also alloyed ferrous and non-ferrous metals which exposed him to toxic compounds. 

On October 2015 VA examination, the examiner noted that the Veteran was service-connected for scarring of the left lung base related to asbestos. The Veteran reported some mild shortness of breath which has not been treated. He reported inhalation of a variety of things during military service when he worked in a foundry. The Veteran's respiratory condition required the use of inhaled medications. Pulmonary function testing showed mild obstruction. X-rays did not show scarring of the left lung base. The examiner diagnosed COPD and opined that the Veteran's lung disability is at least as likely as not related to inhalation during military service. The examiner noted that the Veteran's pulmonary function tests showed mild obstruction, consistent with COPD, that he had not been a smoker, and he had inhalation of a variety of substances in his service work in a foundry, which may have led to his mild obstruction on pulmonary function tests.

Based on the foregoing, the Board finds that the evidence establishes that it is at least as likely as not that the Veteran's COPD is related to service, specifically, the inhalation of various toxic chemicals while working in a foundry for 7 years during service.

As noted on October 2015 VA examination, the Veteran has a current diagnosis of COPD. The Veteran has also credibly stated that he was exposed to asbestos and other toxic chemicals during his service in the Navy. The Board finds that this is consistent with the circumstances of his service, and serves to establish the likelihood of exposure. With regard to nexus, the Board finds the October 2015 VA medical opinion to be probative as to whether the Veteran's COPD is etiologically related to service, to include exposure to asbestos and other toxic chemicals. The examiner interviewed and examined the Veteran, reviewed the evidence of record, and explained the reasons for his conclusions based on an accurate characterization of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The Board acknowledges that the October 2015 VA examiner incorrectly stated that the Veteran was service-connected for scarring of the left lung base related to asbestos. However, this statement was not relevant to his conclusion and any error in this regard was therefore harmless.  Under 38 C.F.R. § 3.304(c), "The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination." Here, the Board finds the October 2015 VA opinion regarding the etiology of the Veteran's COPD to be sufficient to make a determination on the claim.  A remand in these circumstances is therefore not warranted.

The evidence is thus at least evenly balanced as to whether the Veteran's COPD is related to his in-service exposure to various hazardous substances.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for COPD is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

IV.  Psychiatric Disability

The Veteran contends that he has a psychiatric disability, to include depression, anxiety, and panic attacks, for which he should be service-connected on a direct basis or as secondary to service-connected disabilities.

The Veteran's service treatment records reflect that the Veteran endorsed depression and/or excessive worry on a June 1980 Report of Medical History.

Post-service VA and private treatment records since December 1996 reflect treatment for panic attacks, bipolar disorder, depression, and anxiety disorder. During a June 2001 mental health medication note, the Veteran reported that his panic attacks began in 1990. An August 2008 mental health consultation indicated that the Veteran had a history of bipolar disorder and anxiety disorder. He reported feeling depressed lately because of his health problems, financial problems, anger problems, and two family members' recent passings.

In September 2009, the Veteran submitted a claim for service connection for "mental health." In an accompanying statement, the Veteran reported that he started having problems with depression, bad mood swings, and concentration in 1974. He stated that, in 1985, things got worse and doctors would tell him that he was "just stressed out." In the 1990's he got out of control and started having fits of anger for no reason. In 1995, a doctor told him he had a chemical imbalance of the brain and prescribed medication that helped.

A September 2010 Report of Contact indicated that the Veteran wanted to submit a claim for anxiety disorder secondary to his service-connected stomach condition.

On January 2011 VA mental disorders examination, the Veteran reported that, around 1983, he was working for a shipyard and had difficulty breathing. He was told he had bronchitis, but he felt now that it was a panic attack. In 1985, he began to have sleep disruption, which he associated partially with breathing problems and chest pain. He had testing on his heart that was reportedly normal, and was told that his chest pain "might be stress." Attacks occurred more often. Later a hiatal hernia was found, but problems did not remit. He stated he began having difficulty being around others. Stomach problems exacerbated. He reported a number of somatic symptoms occurring over the years. He eventually saw a doctor who put him on psychiatric medication. Medication helped but symptoms continued. By around 1995, he reported his weight had increased to 450 pounds. He is now at 360 to 375 pounds. The Veteran currently reported chronic moderate depressed mood. He stated he gets anxious, sweaty, and nauseous in social situations.

Following psychiatric examination, the examiner provided an Axis I diagnosis of anxiety disorder NOS (not otherwise specified) with panic attacks. The examiner opined that it is likely that his anxiety disorder symptoms are at least partially related to his service-connected stomach condition. The examiner reasoned that the Veteran reported a long history of anxiety symptoms which he reported in relation to his stomach condition. However, it should be noted that he has multiple medical problems which also are likely to be contributing to his current anxiety/depressive symptoms.

Based on the foregoing, the Board finds that the weight of the evidence reflects that the Veteran anxiety disorder with panic attacks and depression, that has been found to be caused by service-connected hiatal hernia with GERD.  As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence, his opinion is entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.  Although the examiner indicated there could be other factors contributing to the Veteran's current psychiatric disorder, the applicable regulation does not require that the service connected disease be the sole cause of the current disability.  38 C.F.R. § 3.310(a).  Moreover, there is no contrary opinion in the evidence of record.

For the foregoing reasons, the weight of the evidence is in favor of the claim, and entitlement to service connection for anxiety disorder with panic attacks and depression is warranted. 


ORDER

Service connection for type II diabetes mellitus is denied.

Service connection for COPD is granted.

Service connection for anxiety disorder with panic attacks and depression is granted.



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs