Citation Nr: 1801151 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-10 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include peripheral neuropathy and renal insufficiency, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. As a final preliminary matter, the Board notes that additional evidence, namely records and a news article, were added to the record after the issuance of the March 2014 statement of the case. The Veteran has not waived initial Agency of Original Jurisdiction (AOJ) consideration of this evidence. Nevertheless, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in April 2014 and AOJ consideration of this evidence has not been explicitly requested. In turn, a waiver of this additional evidence is not necessary and the Board may properly consider all additional evidence submitted. FINDINGS OF FACTS 1. The preponderance of the evidence of record is against a finding that the U.S.S. Richmond K. Turner and U.S.S. Fox operated on the inland waterways of the Republic of Vietnam at any time during the Veteran's service on those ships, that the Veteran went ashore when those ships were anchored or moored in Da Nang Harbor, that he otherwise served in or visited the Republic of Vietnam, or that he was otherwise exposed to herbicide agents in service. Herbicide agent exposure, therefore, may not be presumed. 2. The preponderance of the evidence of record is against finding that diabetes mellitus was manifested in service, that diabetes mellitus was compensably disabling within one year of separation from active duty, or that there is a nexus between the current diagnosis of diabetes mellitus and service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, to include peripheral neuropathy and renal insufficiency, claimed as due to herbicide exposure, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a) & (e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The duty to notify has been met. The Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. VA's duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and 2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran has not been afforded a VA examination in connection with his service connection claim for diabetes mellitus, the Board finds that a VA examination for this claim is not necessary as the claim is based solely upon assertions of herbicide exposure during the Veteran's period of active service. McLendon, 20 Vet. App. 79. The VA also finds that examinations are not necessary for the Veteran's claims of service connection for peripheral neuropathy and renal insufficiency. The Veteran claims service connection for these disabilities as secondary to diabetes mellitus, which is not service connected. No medical or lay evidence has been added to the file to establish direct service connection. Since VA has obtained all relevant identified records, its duty to assist in this case is satisfied. II. Service Connection for Diabetes Mellitus due to Herbicide Exposure The Veteran essentially contends that his diabetes mellitus is the result of being exposed to herbicide agents during service when his ship was docked at Da Nang Harbor during the Vietnam War. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for diabetes mellitus also may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (concluding that section 3.303(b) is constrained by section 3.309(a)). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). Additionally, service connection for diabetes mellitus may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Walker, 708 F.3d at 1338. Last, service connection for diabetes mellitus may be based upon presumed exposure to an herbicide agent, such as Agent Orange, during active service in the Republic of Vietnam between January 1962 and May 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.3039(e). "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); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA General Counsel has determined that service in the Republic of Vietnam requires that an individual actually have been present within the boundaries of the Republic. VAOPGCPREC 27-97. Specifically, to establish qualifying service in Vietnam, a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, does not constitute service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A). VAOPGCPREC 27-97; Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Historically, the Veterans Benefits Administration has extended the herbicide agent presumption to naval ships which entered Vietnam's inland waterways or those that docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated Sept. 5, 2017), M21-1, pt. IV, subpt. ii, ch. 1, sec. H.2. Recently, in Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA's interpretation excluding certain bays and harbors, including Da Nang Harbor, from the regulatory definition of inland waterway was arbitrary and capricious. VA has since revised its policy to clarify that certain bays and harbors identified by VA may qualify as inland waterways. VA's policy states that inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam, but do not include open deep-water harbors, such as those at Da Nang, Nha Trang, Qui Nhon, Cam Ranh, Vung Tau, and Ganh Rai. VA has determined that these harbors are not inland waterways because they are open to the sea with extensive entry distance for easy access; they are not connected to a major inland river; they are not long or narrow; they have a deep water channel for easy ship anchorages, and they have no historical evidence of extensive Agent Orange aerial spraying. M21-1, Part IV, Subpt. ii.1.H.2. VA has also established a list of ships that traveled on inland waterways, docked to a pier or the shore of Vietnam, or operated on close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller craft from the ship regularly delivered supplies or troops ashore. The ships the Veteran was assigned to are not on this list. In determining whether service connection is warranted for a disability, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. In March 2012, the Veteran submitted a Diabetes Mellitus Disability Benefits Questionnaire (DBQ) prepared by his private treating physician. The Veteran was diagnosed with diabetes mellitus in January 2004 and is required to take continuous medication, satisfying the first element for service connection. The Veteran does not argue and the evidence does not support a finding that the Veteran had diabetes mellitus during active duty. The Veteran's service treatment records do not show any complaints, treatment, or diagnosis for diabetes mellitus. Service connection is not warranted for diabetes mellitus on a direct basis. There is no competent evidence of record documenting the presence of diabetes mellitus to a compensable degree within one year of discharge which would allow for the grant of service connection for the disorder on a presumptive basis under 38 C.F.R. § 3.309. The Veteran alleges he was exposed to the herbicide Agent Orange during his service in the Navy during the Vietnam War. The Veteran's military personnel records show that he was assigned to the U.S.S. Richmond K. Turner from March 1970 to May 1971, followed by assignment to the U.S.S. Fox from August 1971 to June 1973. In January 1972, the Veteran was awarded the Vietnam Service Medal and ribbon bar for service aboard the U.S.S. Fox. His DD-214 also notes the Veteran received the Republic of Vietnam Campaign Medal. A history of the U.S.S. R. K. Turner from the Naval Historical Center of the Department of the Navy shows that the ship was off the coast of Vietnam from June 1970 to July 1970. The Deck Logs of the U.S.S. R. K. Turner show the ship was anchored at Da Nang Harbor on June 28, 1970. An August 2012 VA Information Request returned that the U.S.S. Fox was in the official waters of the Republic of Vietnam from September 1971 to October 1971, November 1971 to December 1971, December 1971 to January 1972, February 1972 to February 1973, and March 1973 to March 1973. However, the records do not provide any conclusive proof of in-country service or exposure to herbicides. The records do not document that the Veteran set foot on Vietnamese soil or the ship he was assigned to docked in Vietnam or was in the inland waterways (brown waters) of Vietnam. In August 2012, the Veteran submitted a personal statement and a buddy statement from a fellow serviceman who also served on the U.S.S. R. K. Turner with the Veteran. The Veteran stated that on two occasions he was anchored at Da Nang Harbor in Vietnam. In June 1970, he stood on swimmer watch aboard the U.S.S. R. K. Turner, watching for swimmers planting explosives on the hull of the ship. The fellow serviceman's buddy statement corroborated the fact that the U.S.S. R. K. Turner was anchored at Da Nang Harbor and that he too was on swimmer watch. He also stated that the ship was anchored for less than twenty four hours. Neither statement explicitly stated whether the Veteran ever went ashore during the time their ship was anchored at Da Nang Harbor. Although the serviceman stated a small party went ashore, he did not state whether the Veteran was among the party. The claims file lacks any corroborating evidence that the U.S.S. R. K. Turner or the U.S.S. Fox entered the inland waterways (brown water) of Vietnam or that the Veteran set foot on shore. There is no statement to that effect in the claims file. The Board acknowledges that the Veteran submitted an online news article on the challenges of Vietnam War Era Navy veterans seeking benefits for disabilities due to herbicide exposure. However, the Board notes that the article did not specifically involve this Veteran or corroborated that this Veteran was exposed to herbicide agents. As such, this supplemental information has low probative value. Based upon the foregoing, the preponderance of the evidence weighs against finding that the U.S.S. R. K. Turner and U.S.S. Fox operated on the inland waterways of Vietnam at any time during the Veteran's service on those ships, that the Veteran went ashore at any time during his service during the Vietnam War Era, that the Veteran otherwise served in or visited the Republic of Vietnam, or that he was otherwise exposed to herbicide agents in service. Therefore, on a theory of herbicide agent exposure, the second element of service connection is not met. Although the criteria for service connection due to herbicide agent exposure have not been met in this case, direct service connection must be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In terms of in-service incurrence of diabetes mellitus, the Veteran's service treatment records are silent for any symptoms, complaints, treatment, or diagnosis for diabetes mellitus, including the reports of the Veteran's April 1969 enlistment examination and June 1973 separation examination. According to the March 2012 DBQ, the Veteran was diagnosed with diabetes mellitus in January 2004, which was over thirty years after separation from service. The Veteran has not asserted that he experienced any symptoms of diabetes mellitus prior to being diagnosed as having the condition. The evidence, therefore, does not support a finding that the Veteran's diabetes mellitus manifested during service or within the one year presumptive period after separation from service, and as a result, the second element for service connection is not met on any theory of entitlement, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102 , 4.3, 4.7; Gilbert, 1 Vet. App. at 54 (1990). ORDER Service connection for diabetes mellitus, type II, to include peripheral neuropathy and renal insufficiency, claimed as due to herbicide exposure, is denied, ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs