Citation Nr: 1800710 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-53 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The service connection claims for diabetes mellitus and ischemic heart disease were initially denied in a February 2012 rating decision. While the Veteran submitted a notice of disagreement with this decision, he did not submit a timely appeal of the February 2012 decision or submit new and material evidence within one year, and the decision thus became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C. § 5108. Changes to the law and regulations regarding diseases associated with exposure to herbicides based on service aboard ships in the offshore waters or inland waterways of Vietnam create a new basis of entitlement, so that the Board may adjudicate the Veteran's current claim for service connection for diabetes mellitus and ischemic heart disease as original claims, rather than as reopened claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has not been shown to have been exposed to Agent Orange during service. 2. Diabetes mellitus did not manifest in service or for many years thereafter and is not related to service. 3. Ischemic heart disease did not manifest in service or for many years thereafter and is not related to service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. Ischemic heart disease was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to service connection for diabetes mellitus and ischemic heart disease as secondary to in-service exposure to herbicides. He alleges that he was exposed to Agent Orange in service, as his ship, the USS Shangri-La, was docked in Da Nang Harbor, off the coast of Vietnam. I. Factual Background The Veteran's service treatment records include no complaint, finding, or diagnosis with respect to the claimed diabetes mellitus or ischemic heart disease. No abnormalities with respect to the heart or endocrine system were noted on December 1970 discharge examination. Service personnel records reflect that the Veteran received the Vietnam Campaign Medal with Device for operations in Southeast Asia area outside the geographical limits of Vietnam, contributing to the direct combat support of forces in Vietnam, for his service aboard the USS Shangri-La in April 1970. A records search of National Personnel Records Center information indicates that they were unable to determine whether the Veteran served in Vietnam. His unit, VA-172 could have been assigned to a ship or to shore. For Department of Defense purposes, the unit was credited with Vietnam service from April to May 1970, a period of 2 weeks in May 1970, and other periods of approximately 2 to 3 weeks each from June to November of 1970. A report from the Defense Personnel Records Information Retrieval System reflects that the Veteran's unit, VA-172, departed for deployment with the USS Shangri-La in May 1970 and conducted special operation on Yankee Station in July, August and September 1970. In addition, the command history for the USS Shangri-La revealed that the unit conducted combat operations from Yankee Station, Gulf of Tonkin, off the coast of Vietnam during various periods from April to November 1970. The ship returned to Florida in December 1970. In addition, the USS Shangri-La entered Vietnam territorial waters and stood in the harbor of Da Nang for one day in June 1970, with no personnel going ashore or on liberty. The ship returned to Yankee Station that day. Ship logs reveal that the ship did not anchor while in Da Nang Harbor and was therefore approximately 1 hour while a helicopter delivered a needed part. The Veteran has submitted a copy of of an introduction to the Da Nang Harbor Report entitled "How to Use the Da Nang Harbor Report." That report, authored by J. Rossie and W. Ward of the Blue Water Navy Vietnam Veterans Association, asserts that any Vietnam veteran who was ever in Da Nang Harbor was exposed to Agent Orange. He has also submitted articles indicating that VA was looking into claims of "blue water" veterans. Post-service medical records include physician's statements dated in July 2011 reflecting that the Veteran had been diagnosed with coronary artery disease, noting dated of diagnosis with cardiac catheterization in August 2001. In addition, diagnosis of diabetes mellitus was indicated. A November 2011 VA Ischemic Heart Disease Disability Benefits Questionnaire reflects that the Veteran was diagnosed with coronary artery disease in 2001. In a June 2013 statement, the Veteran's VA primary care physician, Dr. C. wrote that the Veteran was exposed to Agent Orange during service as a "blue water" veteran whose ship docked in the Da Nang Harbor. She referenced an Institute of Medicine's Veterans and Agent Orange update from 2008, and noted that the document strongly recommended that Vietnam service members exposed to offshore seawater be considered exposed to Agent Orange. She indicated that the Veteran had been diagnosed with diabetes in 2001 and ischemic heart disease in 2008 when he underwent angioplasty. Based upon her review of the report, it was her opinion that it is more likely than not that the Veteran's diabetes and ischemic heart disease were related to Agent Orange exposure. II. Legal Criteria and Analysis 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court of Appeals for Veterans Claims (Court) has established that 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. § 1101. With respect to the current appeal, that list includes cardiovascular-renal disease and other organic disease of the nervous system. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease and diabetes mellitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus and ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307 (a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). Agent Orange was often directly applied to the water surface of inland rivers, streams, and delta areas and on riverbanks; and aborted missions resulted in a release of herbicides over waters. Accordingly, Veterans who served on vessels in the inland waterways of Vietnam (also referred to as "brown water") are presumed to have been exposed to herbicides for VA purposes; however, Veterans who served in offshore waterways (also referred to as "blue water") do not automatically have presumptive exposure. Moreover, the Court in Gray v. McDonald, 27 Vet. App. 313 (2015), directed VA to reevaluate its definition of inland waterways, to include whether Da Nang Harbor should be considered in an inland waterway. A list of ships that operated in the inland waterways of Vietnam has been compiled. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/ list.asp. In order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307 (a)(6)(iii). See Haas v. Peake, 525 F.3d 1168, 1172 (2008). Consistent with the Court's order in Gray, VA undertook a review of the classification of Vietnam-area harbors. "Inland waterways" are classified as fresh water rivers, streams, and canals, and similar waterways; and VA considers inland waterways to end at their mouth or junction to other offshore water features. M21-1, IV.ii.1.H.2.a. "Offshore waters" are classified 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. M21-1, IV.ii.1.H.2.b. As noted above, the Veteran contends that he was exposed to Agent Orange when his ship was anchored in Da Nang Harbor. Under the amended criteria, consistent with the pre-amended criteria, Da Nang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. VBA Manual M21-1, IV.ii.1.H.2.c. Da Nang Harbor is open to the sea, is not connected to any major inland river, and has deep channels for the anchorage of large ships. Significantly, there is no historical evidence or evidence of record of extensive herbicide aerial spraying over the Da Nang Harbor. The Board also notes that the USS Shangri-La is not listed on the ships list as a vessel associated with service in Vietnam and exposure to herbicide agents. With respect to the Veteran's reliance on the Da Nang Harbor Report, the Board notes that this report was specifically addressed in Haas. Although the Federal Circuit in Haas passed no judgment on the validity of studies such as the Australian study upon which the Da Nang Harbor Report relies, it did highlight VA's rulemaking with respect to this Australian 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. Haas, 525 F.3d at 1194 (quoting 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Based on this analysis, VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'" Accordingly, the Da Nang Harbor Report and the studies on which it is based do not provide sufficient evidence to support assertions of exposure to herbicide agents aboard blue water vessels. The findings of these reports are inconclusive in nature and do not apply to the specific facts and circumstances of the Veteran's case and his service in the waters off-shore Vietnam. Again, as noted above, the recent review of Vietnam-area harbors concluded that Da Nang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. For the foregoing reasons, the Board finds this finding more probative than those of the Da Nang Harbor Report. Similarly, with regard to the 2008 Agent Orange Update study cited by the VA examiner, while the VA examiner did not cite to specific passages from the study. However, the Board notes that the recommendation that personnel aboard vessels offshore should be considered to have been exposed to herbicide was deleted from updates of this study in 2012 and later. See Institute of Medicine, Veterans and Agent Orange: Update 2012 (Update 2012). Moreover, VA has already considered these assertions and studies they are based upon, but has declined to change the regulation based upon a number of factors. The Board further observes that these studies do not speak with any specificity to the Veteran's service. In addition, the Board has considered the Veteran's citation to a prior Board decision which he purports supports his claim. To the extent that the Veteran seeks to use this case to demonstrate his own exposure to Agent Orange, pursuant to 38 C.F.R. § 20.1303, decisions of the Board are considered nonprecedential as each case is decided on the basis of the individual facts in light of the applicable law and regulations. Apart from the lack of precedential value, because different evidence in cases of other veterans affects the outcome of each individual case, prior Board decisions do not compel the conclusion that the facts in this case calls for a grant of service connection. While the Board has considered the prior Board decision, it is not binding and does not carry controlling weight over the outcome of this appeal; rather, the facts of this particular case alone are determinative. In sum, the Board acknowledges the Veteran's contention that "boots on the ground" on land in Vietnam is not necessary to demonstrate exposure to Agent Orange in service. Indeed, relevant regulations make it clear that service on the certain waterways of Vietnam is sufficient. However, in this case, the Veteran's service aboard the USS Shangri-La in the Da Nang Harbor is not sufficient to establish presumptive in-service exposure to Agent Orange. The Veteran has not indicated that he was exposed to herbicides through any other means. Consequently, the objective evidence of record weights against a finding that the Veteran ever stepped foot in Vietnam or was on an inland waterway. Without evidence of such service, the presumptive provisions relating to herbicide exposure are not for application. As to service connection on a direct basis, the evidence of record weighs against a finding that diabetes mellitus or ischemic heart disease was present during active service or within the first post-service year, or is otherwise related to disease or injury in active service-including exposure to herbicides. Diabetes mellitus or ischemic heart diseasewas not noted during service or within one year of separation. In addition, the Veteran did not have characteristic manifestations sufficient to identify the disease. Rather, the separation examination was normal. The Board is within its province to weigh the Veteran's statements and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after service with no competent evidence that either claimed disability is related to active service. Post-service continuity of symptomatology of diabetes mellitus or ischemic heart disease has not been established, and the Veteran does not contend any other relationship to service outside of herbicide exposure. Finally, with respect to Dr. C.'s finding that the Veteran's diabetes mellitus and ischemic heart disease are related to Agent Orange exposure, as noted above, the evidence does not support the assertion that the Veteran was exposed to Agent Orange through his service. To this extent, Dr. C's statement is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In sum, for the reasons and bases set forth above, the Board concludes that the evidence weighs against the service connection claims for diabetes mellitus and ischemic heart disease. On this matter, the preponderance of the evidence is against the claims; the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, is denied. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides, is denied. REMAND Upon review of the claims file, the Board believes that additional development on the remaining claim is warranted. The Veteran contends that he has a psychiatric disorder, related to his service and traumatic experiences therein. The Veteran's service treatment records reflect no complaint, finding, or diagnosis with respect to the claimed psychiatric disorder. Post-service VA treatment records dated in 2015 and 2016 reflect assessment of anxiety disorder and depressive disorder. It was noted that he had been on medication for psychiatric symptoms for about 10 years. An August 2016 report from Goldsboro Psychiatric Clinic reflects the Veteran's report that he became depressed and anxious during service due to events such as bombings and lost pilots. An assessment of chronic major depression and generalized anxiety disorder was noted. The examiner noted that "because of this service connected major depression" the Veteran was unable to sustain social and work relationships. A September 2016 disability benefits questionnaire completed by a psychologist reflects that the Veteran discussed in-service stressors related to pilots from his mission not returning and causalities being brought on to the ship. The examiner found that while a diagnosis of PTSD was not warranted, diagnoses of major depressive disorder and generalized anxiety disorder were warranted. Under these circumstances, an examination is needed to determine whether the Veteran currently meets the criteria for a diagnosis of PTSD, or other psychiatric disorder, that is related to service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). In addition, the report reflects from Goldsboro Psychiatric indicates that the Veteran is in receipt of Social Security benefits. While Social Security Administration (SSA) records are not controlling for VA determinations, these records may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Assist the Veteran in associating with the claims folder outstanding treatment records, to specifically include updated VA treatment records. 2. Request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. In requesting these records, the AOJ should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed psychiatric disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should determine whether the Veteran currently suffers from PTSD, in accordance with the DSM-V, and if so, whether it is related to his fear of hostile military or terrorist activity while in service that is adequate to support a diagnosis of PTSD. The examiner should also identify all current psychiatric disorders other than PTSD. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not the disorder had its onset in service or within one year of discharge, or is otherwise causally or etiologically related to the Veteran's service. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should be provided for any opinions expressed. 4. After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs