Citation Nr: 1720544	
Decision Date: 06/08/17    Archive Date: 06/21/17

DOCKET NO.  13-01 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Roya Bahrami, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1971 to December 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The record indicates that the Veteran requested a hearing with a Decision Review Officer (DRO). A November 2016 letter indicates that a DRO hearing was scheduled for December 2016. However, in a December 2016 Informal Hearing Presentation (VA Form 646), the Veteran clarified that he no longer desired a hearing. Therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e) (2016).

This appeal is being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems.

As a final preliminary matter, the Board notes that the Veteran submitted June 2013 disability benefits questionnaires pertaining to diagnosed sleep apnea and hypertension disabilities. As such, the issues of entitlement to service connection for sleep apnea and hypertension have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms.  See 38 C.F.R. § 3.150(a) (2016) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2016) (continuing to provide for Board referral of unadjudicated claims).


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.


CONCLUSION OF LAW

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).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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).

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 June 2010, prior to the initial February 2011 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.  Analysis

The Veteran contends that his type II diabetes mellitus is secondary to herbicide exposure when his ship, the USS Rupertus (DD-851), anchored at Da Nang Harbor.

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; 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.

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 Rupertus (DD-851) between September 1972 and January 1973. While the Veteran's awards include the National Defense Service Medal and Vietnam Service Medal, there is no indication in the service records that the Veteran served in the Republic of Vietnam. 

In support of his contention that he was exposed to Agent Orange while anchored at Da Nang Harbor, the Veteran asserted that the USS Rupertus DD-851 was "well within 5 miles of the coast line[, and w]e spent 3 days floating around in the ship[']s small boat just off the coast using knives and bayonets to stick holes into the rice bags that were floating on the water." See April 2010 statement in support of claim (VA form 21-4138).

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 June 2010, 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 Rupertus (DD-851) which was in the official waters of the Republic of Vietnam from September 26, 1972 through October 13, 1972, October 19, 1972 through November 13, 1972, November 24, 1972 through December 18, 1972, December 28, 1972 through December 31, 1972, and January 1, 1973 through January 10, 1973. However, the record provides no conclusive proof of in-country service.

In September 2010, a Report of General Information (VA Form 21-0820) indicates that the RO contacted the Veteran to ask whether he had ever set foot in the Republic of Vietnam while stationed aboard the USS Rupertus. The Veteran responded that he had not, and that his ship had not docked in Vietnam. He stated that his ship was "2 to 5 miles" off the coast of Vietnam and that he had been in boats poking holes in bags of rice that the Chinese had put in the water.

In September 2010, the VA issued a Formal Finding of a lack of information required to verify exposure to Agent Orange or service in Vietnam. The memorandum noted review of the May 2009 JSRRC memo, the June 2010 NPRC response, the Veteran's service treatment records, and the September 2010 report of contact with the Veteran.

In February 2012, the Veteran submitted photographs of himself with a group of fellow soldiers, as well as various photographs of a ship.

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.

Initially, the Board notes that the USS Rupertus (DD-851) 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 Rupertus (DD-851) 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 Gray that 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 VA Adjudication Manual 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 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). However, the Veteran provides no assertion of direct exposure to herbicides on any other basis. 

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.  Moreover, the medical and lay evidence of record indicates that the Veteran was diagnosed with type II diabetes mellitus in 2005, which is approximately 30 years after separation from service, and there is no evidence of symptoms indicative of diabetes significantly prior to that date.  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), 1110, 1112, 1113; 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); 38 C.F.R. § 3.102.




ORDER

Service connection for type II diabetes mellitus is denied.



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



Department of Veterans Affairs