Citation Nr: 1800903 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-24 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for diabetes mellitus, type 2 claimed as due to Agent Orange exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge in a March 2015 videoconference hearing. A transcript of the hearing has been associated with the file. The Board remanded the matter in June 2015 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will adjudicate the matter. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The preponderance of the probative evidence shows that the Veteran did not have verified service in Vietnam during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The preponderance of the probative evidence does not demonstrate that the Veteran's currently diagnosed diabetes manifested during, or as a result of, active military service, or manifested to a compensable degree within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type 2, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claim Assistance Act of 2000 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 a duty to assist argument). Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Certain listed disabilities, such as diabetes, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection for Type II diabetes also may be presumed for those exposed to particular herbicide agents. VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307(a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his diabetes is a result of his time in active service. Specifically, the Veteran contends that his diabetes is a result of Agent Orange exposure while serving on the USS Kearsarge during the Vietnam era. The Veteran maintains that he was in Vietnam. He contends that while on the USS Kearsarge en route to Yankee Station he was granted emergency leave, and flew off the USS Kearsarge on a Grumman C-1 TF-1 Trader aircraft, which landed in Vietnam in order to refuel before proceeding to Subic Bay, Philippines. He testified that he does not recall the details, but that Cam Ranh Bay (located in Vietnam) sticks out in his mind. See March 2015 Board Hearing Transcript. During the hearing the Veteran's representative reported various relevant distances, stating the distance from Yankee Station (a point in the Gulf of Tonkin off the coast of Vietnam) to Clark Air Force Base (base on Luzon Island in Philippines) is approximately 1,305 kilometers and that the plane the Veteran flew on had a flight range of 2,093 kilometers. The representative stated, that Yankee Station is 103 miles offshore, that the distance from Cam Ranh Bay to Philippines is 799 miles and from Yankee Station to Cam Ranh Bay is 1364 miles. Based on this assessment, the Veteran argued that the aircraft must have stopped to refuel before proceeding to Subic Bay. The Veteran testified that he recalled getting off the plane while they refueled and that he could hear the firing of weapons 50 yards away. He stated he was there about one and a half hours before re-boarding the plane and continuing on to Clark Air Force base. The Veteran's representative stated that it is his guess that the Veteran flew to Da Nang (located in Vietnam) because it was a major airport and the picture that the Veteran described sounded like he refueled in a known hot zone, as Da Nang was under fire constantly during that time. In an October 2016 correspondence the Veteran reiterated the argument provided during his hearing, but provided additional distance information. He stated the distance from the Tonkin Gulf to the Philippines is 1340 miles, and the aircraft he was on had a 1300-mile capability. For those reasons, he argued that it would not have been feasible that the aircraft could have flown from the ship to the final destination without stopping for fuel in Vietnam. Turning to the evidence of record, there are VA treatment records dated January 2008 that indicate a diagnosis of diabetes. Therefore, there is competent medical evidence establishing that the Veteran has a current diagnosis of diabetes mellitus during the pendency of this appeal. Resolution of the Veteran's appeal turns on whether his current diabetes mellitus is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Here, the evidence shows that the Veteran has a current diagnosis of diabetes, an enumerated disease associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). He does not contend that diabetes had its onset in service or within a year of service, but rather asserts that he was first diagnosed with diabetes in approximately 1985. As there is no showing that diabetes manifested to a degree of 10 percent within a year from separation from service-in August 1969, the presumption does not apply. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, as the Veteran does not contend, and the evidence of record, including service treatment records, does not otherwise show that his diabetes had its onset in service, service connection on a direct basis is not warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, at primary issue in this case is the determination of whether or not the Veteran is entitled to a presumption of exposure to herbicide agent based on service in Vietnam during the Vietnam era. As the Board noted in its June 2015 remand, it is conceded that the Veteran was assigned to USS Kearsarge during service, that he was transferred off the USS Kearsarge on emergency leave on October 22, 1967, with the final destination being Travis Air Force Base, California. The Veteran's DD Form 214 does not reflect Vietnam service, but notes that the Veteran was awarded the Vietnam Service Medal (VSM) and the National Defense Service Medal (NDSM). In documents submitted in February 2010, the deployment dates for the USS Kearsarge are listed. Between October 6, 1967 and October 17, 1967 the USS Kearsarge was in port, Yokosuka, Japan and the ship was next in port, Subic Bay, Philippines on November 15, 1967. In a document titled distance calculator, it notes the distance from Yokosuka, Japan to Subic Bay, Philippines as 1738.3 miles. In a May 2012 deferred rating decision the RO indicated that the Personnel Information Exchange System (PIES) 034 response noted that the USS Kearsarge was in the official waters of the Republic of Vietnam from October 22, 1967 to November 13, 1967. The responses from the Defense Personnel Records Information Retrieval System (DPRIS) and Joint Services Research Records Center (JSRRC) indicated the following: the USS Kearsarge departed the Naval Station from Long Beach, California on August 17, 1967. The USS Kearsarge conducted special operation periods on Yankee Station in the Gulf of Tonkin, off the coast of Vietnam from October 23, 1967 to November 11, 1967 and November 29, 1967 to December 19, 1967. After a review of the October 1967 deck logs submitted by the USS Kearsarge it is recorded that the ship was underway in the Philippines Sea on October 1, 1967 and on October 3, 1967 the ship was underway from the Philippine Sea to Yokosuka, Japan. On October 19, 1967 the ship was underway from Yokosuka, Japan to Yankee Station in the Gulf of Tonkin with the deck log recording she arrived at Yankee Station on October 24, 1967 remaining there through October 31, 1967. Many helicopters and aircraft were recorded as arriving and departing the ship most days. None are recorded as landing in Vietnam or a land destination within Vietnam. The history and deck logs do not document that ship's personnel stepped foot in the Republic of Vietnam. According to the Naval History and Heritage Command aircraft maintenance logs, aircraft flight manifests and pilot logs were not considered historical records and not retained by the U.S. Navy. An August 2016 formal finding indicates a lack of information required to corroborate the Veteran's allegation of exposure to herbicide agent while stationed aboard the USS Kearsarge on October 22, 1967, and the Veteran was notified of this in August 2016. After considering the evidence of record, including the evidence showing the Veteran was not in Vietnam or its inland waterways at any point, the Board finds that the presumption is not warranted and the evidence does not otherwise show by competent and credible evidence that the Veteran was exposed to herbicide agent in service. The evidence does not show the Veteran was present on the landmass or the inland waters of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii); Haas, 525 F.3d 1168. There is also no evidence that the USS Kearsarge docked on the shores or piers of Vietnam, operated temporarily in the inland waterways, or that smaller vessels from the ship went ashore regularly with supplies or personnel. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. By his own account at the March 2015 hearing, the Veteran testified that he was unclear on the details and even though Can Ranh Bay stuck out in his mind he could not state with any certainty where in Vietnam he may have been. Additionally, the DPRIS and JSSRC inquiries showed that the USS Kearsarge did not travel the inland waters or dock on land in Vietnam. Given the Veteran's imprecise recollection and the official records which fail to support the notion the Veteran was in Vietnam as he vaguely recalled, the weight of the evidence is against the conclusion the Veteran was in Vietnam. Additionally, the Board recognizes that the Veteran's awards include the VSM and the NDSM. However, such awards do not require the physical presence in Vietnam. See Haas, 525 F. 3d 1168, (held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM). Accordingly, the Veteran's receipt of the VSM and NDSM do not provide proof of active service inside the Republic of Vietnam. The Veteran has not contended that the ship moored at some location in Vietnam, however the Board notes that VA's Compensation & Pension (C&P) service has continually updated a non-exhaustive list of U.S. Navy ships that have operated at some point in the inland waterways of Vietnam or else was moored at some location in the Republic of Vietnam. In this case, the USS Kearsarge, the ship noted in the Veteran's personnel records, is not a ship that was part of the Mobile Riverine Force, nor was it one of the specifically designated classes of ships (such as LST, LCM, LCVP, etc.) that would have been expected to operate in the internal waters of Vietnam, or specifically listed by the C&P as having either moored in the Republic of Vietnam or operated in its inland waters. See http:// vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (December 1, 2017). For these reasons and bases, the Board finds that the weight of the lay and medical evidence is against this claim. As exposure to an herbicide agent is not demonstrated, presumption of service connection based on exposure to an herbicide agent is not indicated. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, type 2, to include as secondary to Agent Orange exposure, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs