Citation Nr: 1800421 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-13 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for diabetes mellitus-type II, to include as due to exposure to herbicides or herbicidal agents. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1964 to July 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In a March 2015 Board decision, the Veteran's claim was remanded for further development, to include notifying the Veteran of the evidence required to show exposure to herbicides in service and attempt to verify herbicide exposure via a request for a U.S. Army and Joint Services Records Research Center's memorandum. The development was properly concluded, and the Veteran's claim has now returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran did not serve in-country or on the inland waterways of the Republic of the Vietnam during the Vietnam era. His tenure of service did include service in the blue waters off the coast of Vietnam. 2. The Veteran was not exposed to herbicides in service. 3. No disease or chronic symptoms of diabetes mellitus type II were manifested during service or for many years thereafter. The evidence does not reveal that the Veteran's diabetes mellitus-type II was manifested to a degree of ten percent within one year of separation. 4. Diabetes mellitus-type II was diagnosed many years after service and there is no competent evidence that establishes that the condition is related to a disease or injury suffered in-service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diabetes mellitus-type II, to include as due to claimed exposure to herbicidal agents, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1154, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2015); 38 C.F.R. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2017). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309 (a) (and not merely diseases which are "medically chronic"), including diabetes mellitus, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303 (b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of a current injury or disease which is a recognized cause of a chronic disability. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013). In making all determinations, the Board must also fully consider the lay assertions of record. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159 (a)(2) (2017). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); See also 38 C.F.R. § 3.159 (a)(1) (2017). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Presumptive service connection In this case, the Veteran contends that he is entitled to service connection for diabetes mellitus-type II, to include as due to herbicide exposure in Vietnam. He has not identified any in-service injury or disease as having caused or aggravated his condition during active service, nor is such indicated by the evidence of record, to include the Veteran's service treatment records (STRs). It is undisputed that diabetes mellitus -type II, first manifested many years after active service and post any putative exposure to herbicidal agents. The law provides that if a veteran was exposed to a herbicide agent during active military, naval, or air service, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) 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, including. 38 C.F.R. § 3.309 (e). For the purposes of 38 C.F.R. § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975, he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). Furthermore, "service in the Republic of Vietnam" includes service in the waters offshore if the condition of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313 (a). This provision has been interpreted as requiring the veteran's presence at some point on the landmass or the inland waters of Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual, IV.ii.1.H.2.a. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. The record reflects that the Veteran served in the waters offshore of Vietnam from September 1964 to July 1984. In a June 2016 statement, the Veteran indicated that he was stationed aboard the USS Coontz (DLG-9) while on active duty and noted that the vessel was attacked by Vietcong soldiers traveling on two speed boats. During the encounter an air strike was called in and the Veteran contends that nine Vietcong survivors were rescued and transported to Saigon. The statement makes no allegation that the Veteran personally set foot in Vietnam. In August 2017, the JSRRC issued a response to a request for information indicating that a review of the command history submitted by the USS Coontz (DLG-9) from 1966 and 1967 had been performed and the history did not reveal that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam. More specifically, the records indicate that the ship conducted operations at Yankee Station, Gulf of Tonkin, off the coast of North Vietnam. The history also noted that the ship made ports at Guam, Philippines, Japan, Hawaii, Indonesia, Hong Kong; and briefly stopped at Da Nang, Republic of South Vietnam. Again, there is no evidence that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam during the ports and stops indicated. The Board recognizes that in December 2008, VA Compensation and Pension (C&P) Service released a Policy on Vietnam Naval Operations, which specifically stated that Da Nang Harbor and all other harbors along the Vietnam coastline were considered to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam. Therefore, VA considers open deep-water coastal harbors, such as those at Da Nang, Cam Ranh Bay, and Vung Tau to be part of the offshore blue water of Vietnam and not part of its inland waterway. See December 2008 C&P Service Bulletin. The Board further notes that VA has also promulgated a listing of the Navy ships associated with service in Vietnam and hence exposure to herbicide agents. This list was included as part of the December 2008 C&P Bulletin, as well as updated C&P Bulletins promulgated in January 2010, May 2011, November 2012, and an updated list from June 2016. In pertinent part, these lists identify ships that operated primarily or exclusively on Vietnam's inland waterways, ships that operated temporarily on Vietnam's inland waterways or docked to the shore, and ships that operated on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. For ships identified as operating primarily or exclusively on Vietnam's inland waterways, a claimant need not leave the ship in order for VA to concede herbicide exposure. On the other hand, a claimant who served aboard a ship that docked or operated on the close coastal offshore waters must provide evidence of "visitation in Vietnam" with a lay statement attesting to the fact that he or she personally went ashore, in order for VA to concede herbicide exposure. In this case, the USS Coontz (DLG-9) has not been identified as a ship operating on Vietnam's inland waterways and the Veteran has not reported any visitation in Vietnam. Therefore, the Board finds that the Veteran had no in-country service or documented visitation in the Republic of Vietnam, and there is no evidence that he was exposure to herbicides or herbicidal agents in-service. While Board acknowledges the Veteran's June 2016 lay statement regarding an engagement with Vietcong soldiers along the waterways in Vietnam, there is no indication that the engagement resulted in the Veteran's exposure to herbicides in Vietnam. Further, nothing in the other evidence of record indicates any other basis for such exposure, including putative exposure from contaminated inland waters that flowed to sea and was then used for cooking, cleaning, and drinking by those on the ship upon which the Veteran had blue water service. Accordingly, there is no basis of granting presumptive service connection for the Veteran's diabetes mellitus-type II. In reaching this determination the Board has considered the doctrine of the reasonable of doubt. However, for the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against the claim and as such, the doctrine is not for application. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). The Board notes that the United States Court of Appeals for the Federal Circuit has held that when the criteria for presumptive service connection are not met, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). Service Connection on a direct basis The Veteran's STRs are negative for symptoms, complaints, treatment, or diagnosis of diabetes. The Veteran's separation examination, dated May 1982, indicates a normal endocrine system with no abnormalities or defects noted. In an attached report of medical history, the Veteran reported the existence of a tattoo, wearing corrective lenses, and a current diagnosis of hypertension. Records of periodic check-ups, dated in 1980 and 1981, show negative responses to inquiries regarding a diagnosis of diabetes. Review of private records indicated that the Veteran has been receiving ongoing treatment for diabetes mellitus-type II, since on or about 2006. A primary care physician treatment note, dated November 2006, reported that the Veteran was prescribed a low sugar/low salt diet. In May 2007, a laboratory outpatient note referenced that the Veteran was prescribed metformin to treat his elevated hemoglobin levels and referred to the diabetes mellitus clinic. Other treatment records note periodic checks of the Veteran's hemoglobin levels via an HBA1c test. In December 2014, a nursing education note indicated that the Veteran was advised of the health risks associated with obesity, including worsening symptoms of diabetes mellitus type II and hypertension. The Board notes that there is no indication that the Veteran's diabetes mellitus-type II had an onset in service or within one year of separation. Moreover, his service discharge examination is completely negative for an condition or disease of the endocrine system. The first indication of diabetes mellitus occurred in 2006, many years after service. Indeed, the available post-service medical records do not suggest that the Veteran had diabetes mellitus prior to 2006. Moreover, the Veteran has not contended that his diabetes mellitus-type II was present while on active duty; i.e., he has not disputed it that the condition first developed many years after active service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Further, as diabetes mellitus-type II was first manifested, and diagnosed, many diagnosed years after service, the Veteran is not entitled to a grant of service connection on a presumptive basis pursuant to 38 C.F.R. §§ 3.303, 3.309(a), for a chronic disease present to a compensable degree within the first post-service year. In making all determinations, the Board has thoroughly considered all lay assertions of record. The Board acknowledges the Veteran contention that his diabetes mellitus type II was caused by or related to his active service. However, the evidence of record does not support his assertion. Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). While the Board is sympathetic to the Veteran's complaints of symptoms related to his diabetes mellitus type II, in the absence of medical evidence to establish a nexus or causal link between the condition and active service, there is no basis upon which VA benefits can be granted. In reaching this determination the Board has considered the doctrine of reasonable doubt. However, for the reasons and bases set forth above, the Board finds that the preponderance of the evidence is against the claims and as such, therefore, the doctrine does not apply. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. As to the claim for service connection for diabetes mellitus, type II, as will be explained, this claim must be adjudicated on a de novo basis. However, no VA nexus examination has been requested because of the factual determination that the Veteran did not have brown water service which would have exposed him to herbicidal agents. Thus, a medical examination would not, and could not, address this threshold question. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs