Citation Nr: 1802177 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from June 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the Veteran was previously represented by the Tennessee Department of Veterans Affairs. In July 2015, he changed his representative to the Disabled American Veterans. FINDINGS OF FACT 1. The medical evidence of record establishes that the Veteran has a current diagnosis of diabetes mellitus, type II, and ischemic heart disease. 2. The evidence of record supports a finding that the Veteran's role as an assault boat coxswain assigned to a ship operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore while the Veteran was aboard entailed him going ashore with landing craft. CONCLUSIONS OF LAW 1. Entitlement to service connection for diabetes mellitus, type II, is warranted. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Entitlement to service connection for ischemic heart disease is warranted. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 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 section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air 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 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 C.F.R. § 3.307(d)(6)(iii). 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. Id. The diseases presumed to be associated with herbicide exposure include type 2 diabetes (also known as type II diabetes or adult-onset diabetes) and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an 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. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran contends that he was exposed to herbicide agents during his active service. See July 2012 VA Form 21-526. The Board notes that the Veteran has a current diagnosis of diabetes mellitus, type II, and coronary artery disease. See June 2012 treatment records from Tennessee Department of Health. As noted above, coronary artery disease is considered to be a form of ischemic heart disease. As presumptive service connection is potentially available for both of these disorders under 38 C.F.R. § 3.309(e), the Board will first consider whether there is evidence that the Veteran was exposed to herbicide agents during his active service. The Veteran's military personnel records reflect that he served on the USS Thomaston (LSD-28). In addition, the Veteran attended Assault Boat Coxswain School and Amphibious School. The Veteran's DD 214 also documented that his military occupational specialty (MOS) was BM 0164. The Board notes that this occupational code converts to assault boat coxswain, a type of small boat operator. See Occupational Conversion Index: Enlisted/Officer/Civilian, U.S. Dep't of Def. (Sept. 1993), http://www.dtic.mil/dtic/tr/fulltext/u2/a278196.pdf. VA maintains a list entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents" that documents the ships that operated primarily or exclusively on Vietnam's inland waterways, ships that operated temporally on Vietnam's inland waterways or docked to shore or pier, and ships that operated on Vietnam's close coastal waters for extended periods with evidence that crewmembers went ashore or that smaller craft from the ship regularly delivered supplies or troops ashore. A ship is placed on this list when documentary evidence shows that it fits into a particular category. The list recognizes the USS Thomaston (LSD-28) as a ship operating in Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. The list states that this ship conducted numerous troop and supply landings with small boats at Da Nang, Cam Ranh Bay, Song Co Chien River area, and Cua Viet River area from 1966 to 1972. The list explains that this category includes large ocean-going ships of the Blue Water Navy that conducted supply missions to Vietnam or transported troops into and out of the country through the use of smaller landing craft housed within the mother ship. Examples of such vessels include attack cargo ships, amphibious attack transports, and landing ship docks. The smaller landing vessels within these ships required a crew comprised of 3 to 14 people, depending on size, as they ferried supplies or troops to and from shore. Although official documents show that some crewmembers went ashore with the landing craft, they do not generally provide the names of these crewmembers. Additionally, many of these ships are listed for extended time frames due to the fact that they routinely travelled back and forth between the United States and Vietnam, and between Vietnam and other Asian Pacific ports, as they delivered supplies and troops to Vietnam. Therefore, the list advises that military records should be checked to ensure that the Veteran was aboard when the ship was in Vietnamese waters. Any Veteran aboard the mother ship during the time of offshore Vietnam landing craft activity will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore with the landing craft. In July 2012, the National Personnel Records Center (NPRC) reported that the Veteran was aboard the USS Thomaston (LSD-28) when it was in the official territorial waters of the Republic of Vietnam from September 11 1969 to October 25, 1969, from November 15, 1969 to November 25, 1969, from December 7, 1969 to December 15, 1969, for one day on December 29, 1969, from February 9, 1970 to February 11, 1970, and from March 9, 1970 to March 11, 1970. While the specific dates are obscured, the NPRC also reported that the ship was in these waters in January 1970. In August 2012, the Defense Personnel Records Information Retrieval System (DPRIS) reported that a review of the 1969 command history for the USS Thomaston (LS-28) revealed that on September 12, 1969, the ship participated in an amphibious deception operation off the coast of the Quang Tin Provence and loaded Marine Battalion Landing Team (BLT) 2/26 in DaNang. The ship back loaded Marines and the equipment of the 3rd Division Engineering Battalion in Cua Viet, just south the Vietnamese Demilitarized Zone on October 22, 1969. The ship also anchored in DaNang harbor on September 19, 1969, and on October 19, 1969. The deck logs recorded that LCUs (landing craft utilities) were lowered on both anchorages. Notably, they did not record their destinations or passengers. On October 23, 1969, the ship anchored off of the Cua Viet River and embarked personnel by boat from the Third Marine Amphibious Force. The DPRIS noted that the history and deck logs did not document that the ship docked, transited inland waters, or that the ship's personnel stepped foot in the Republic of Vietnam. The Board notes that the DPRIS response did not address the ship's activities in January, February, or March of 1970 when it was also in the official territorial waters of the Republic of Vietnam. The Veteran's personnel records reflect that the Veteran was aboard the ship when it withdrew elements of the 5th Marine Division and the 26th Marine Regiment from the I Corps for transportation as part of Operation Keystone Blue Jay; which was carried out from February 1970 to April 1970 in Di An and Phu Loi, Vietnam. See Operation Keystone Blue Jay, 1970, Library of Congress (Jan. 4, 2018), http://id.loc.gov/authorities/subjects/sh2006000111.html. The personnel records further stated that while the Veteran was aboard, the ship participated in three practice landing exercises; and otherwise transported and supported elements of the Marine's Special Landing Force Bravo, a Beachmaster Unit Detachment, a Beachjumper Unit Detachment, and an Underwater Demolition Team Detachment. Given the specific facts of this case, the Board finds that the Veteran going ashore to Vietnam with landing craft is consistent with the conditions and circumstances of his service. In so finding, the Board has considered the Veteran's MOS as an assault boat coxswain and the history of his ship's activities while the Veteran was aboard of using smaller craft in the close coastal waters of Vietnam to transport, support, and withdraw troops from specific military operations conducted in the country. Moreover, the evidence reflects that the ship participated in landing exercises in Vietnam during the Veteran's time aboard. Based on the foregoing, and resolving all benefit of the doubt in favor of the Veteran, the Board finds that the Veteran may be presumed to have been exposed to herbicide agents during his active service. 38 C.F.R. § 3.307(a)(6)(iii). Consequently, the Veteran meets the requirements for a presumption of service connection. Service connection for diabetes mellitus, type II, and ischemic heart disease is therefore granted. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for ischemic heart disease is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs