Citation Nr: 1802504 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 05-11 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus type II. 3. Entitlement to service connection for a heart disorder, claimed as secondary to diabetes mellitus type II. 4. Entitlement to service connection for vision problems, claimed as secondary to diabetes mellitus type II. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as secondary to diabetes mellitus type II. 6. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as secondary to diabetes mellitus type II. 7. Entitlement to service connection for a right foot disorder, claimed as secondary to claimed diabetes mellitus type II. 8. Entitlement to service connection for hepatitis C, to include as secondary to claimed diabetes mellitus type II and due to claimed Agent Orange exposure. 9. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus type II. 10. Entitlement to special monthly compensation based on the loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2004 (hepatitis C) and March 2004 (all other issues) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claims file was subsequently transferred to the RO in Oakland, California. The Veteran had a hearing before an undersigned Veterans Law Judge (VLJ) in October 2010; a transcript of the hearing is associated with the claims file. In February 2011, the Board denied service connection for hearing loss, tinnitus, and residuals of right foot surgery, and remanded the remaining 9 issues. In May 2011, the Board vacated the February 2011 decision denying service connection for hearing loss, tinnitus, and residuals of right foot surgery because the Veteran had been denied due process insofar as his then-current representative had requested all documents contained in the Veteran's claims folder, and they had not been provided prior to the denial. In September 2011, the Board issued another decision, noting that a copy of the claims file was provided to the Veteran's then-current representative and again denied service connection for hearing loss, tinnitus, and residuals of right foot surgery. It was noted that the other 9 issues remained in remand status. In March 2012, the RO issued a rating decision wherein it denied the remanded issues. In June 2014, the Board vacated its September 2011 decision denying service connection for hearing loss, tinnitus, and residuals of right foot surgery pursuant to the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), which concerned a Board member's duties at a hearing to fully explain the issues and suggest the submission of evidence that may have been overlooked. In September 2014, the Board remanded the issues of service connection for hearing loss, tinnitus, and residuals of right foot surgery in order to schedule the Veteran for another hearing, consistent with Bryant, supra. The Veteran had a second hearing before another undersigned VLJ in January 2015. A transcript of the hearing has been associated with the claims file. At his January 2015 hearing, the Veteran waived his right to a third hearing before another VLJ. Arneson v. Shinseki, 24 Vet. App. 379 (2011) (holding that 38 C.F.R. § 20.707 requires that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision). In June 2015 the Board denied claims for service connection for bilateral hearing loss and tinnitus and remanded the above claims for additional development. In August 2017 supplemental statement of the case, the Agency of Original Jurisdiction (AOJ) most recently readjudicated the remaining issues. Per the most recent VA Form 21-22 of record, from March 2016, the Veteran is currently represented by the Disabled American Veterans service organization. FINDINGS OF FACT 1. The Veteran did not set foot on land in the Republic of Vietnam, he did not serve on the inland waterways of the Republic of Vietnam, and he has not been shown to have been exposed to an herbicide agent, to include Agent Orange, during service. 2. The Veteran's diabetes mellitus was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service. 3. The Veteran's hypertension was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 4. The Veteran's heart disorder was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 5. The Veteran's vision problems were not manifested during his active military service, and are not shown to be causally or etiologically related to his active military service or a service-connected disability. 6. The Veteran's peripheral neuropathy of the bilateral upper extremities was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 7. The Veteran's peripheral neuropathy of the bilateral lower extremities was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 8. The Veteran's right foot disorder was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 9. The Veteran's hepatitis C was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 10. The Veteran's erectile dysfunction was not manifested during his active military service, and is not shown to be causally or etiologically related to his active military service or a service-connected disability. 11. The weight of the evidence does not show loss of use of a creative organ due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.313, 19.37(a) (2017). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 3. The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 4. The criteria for service connection for vision problems are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 5. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 6. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 7. The criteria for service connection for a right foot disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 8. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 9. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 19.37(a) (2017). 10. The criteria for special monthly compensation based on the loss of use of a creative organ have not been met as a matter of law. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (a)(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA's duty to notify was satisfied by letters, including from April 2003, June 2003, May 2004, December 2011, August 2012, and August 2015 (which included requests for lay statements and regarding treatment requested in the February 2011 and June 2015 Board remands). See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Furthermore, it is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA. Moreover, the Veteran has been represented by an attorney multiple times during his appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Relevant to the duty to assist, the AOJ obtained and considered the Veteran's service treatment records as well as post-service VA and private treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board notes that in January 2007, the Veteran claimed that he had been operated on the right foot on the USS Bonhomme Richard and that VA had failed to obtain ship medical records. However, the record is clear that all service treatment records have been obtained, as shown in February 2004 and November 2015 responses to requests for information. Furthermore, as explained below, the Board finds that the Veteran's reports as to foot surgery in service are not credible and even if they were credible the Veteran currently claims that it was not a chronic condition and that his current foot disorder developed years after service due to his diabetes mellitus. The Board further notes that an August 2017 VA record documents that the Veteran started receiving Social Security Administration (SSA) benefits in November 1992. As the Veteran's claims decided herein rest on exposure to an herbicide agent, such as Agent Orange, in service, these medical records would not be relevant to the adjudication of the claims for service connection for diabetes mellitus and the claims for service connection as secondary to diabetes mellitus. Furthermore, the Veteran himself has claimed that such secondary service connection disorders began after service and developed due to diabetes mellitus and evidence already of record documents the diagnosis of and treatment for such disorders. As to the Veteran's hepatitis C claim, the Veteran was not diagnosed to have that disorder until 2003, over a decade after his SSA disability began. This claim also relies on the question of exposure and sufficient evidence is of record to make a determination as to that claim. As such, the Board finds that SSA records need not be obtained. Furthermore, as directed in the June 2015 Board remand, the AOJ has developed the Veteran's Agent Orange exposure claims, including obtaining the deck logs of the ships on which the Veteran served. As explained below, the Board has found sufficient evidence of record to make a determination on the Veteran's claims and has further found that the Veteran's reports as to Agent Orange exposure are not credible. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. As to the claims other than for hepatitis C, with no exposure to Agent Orange found, and service connection for diabetes not established, secondary service connection is not possible. Likewise, since there is no medical evidence supportive of finding service connection on a direct basis and the Veteran's own reports concerning causation are not probative owing to his lack of expertise, the Board finds that a remand to obtain etiological opinions is not necessary. The Veteran's mere conclusory generalized lay statement that service event or illness caused his current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As to the hepatitis C claim, the Veteran claimed during his January 2015 Board hearing that the VA examination obtained had been based on inaccurate information, as he now denied having had multiple sex partners, tattoos, a blood transfusion, or essentially any hepatitis C risk factors noted by the VA examiner. As the Board finds that the Veteran is not credible in his reports of risk factors, as will be discussed in detail below, the Board finds that a new VA examination is not necessary to consider the Veteran's non-credible lay statements. Therefore, the Board finds that additional VA examinations and/or opinions are not necessary to decide the claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection Claims Per his January 2015 hearing testimony, the Veteran has made clear that he contends that service connection is warranted for diabetes mellitus, based on claimed Agent Orange exposure. He further contends that service connection is warranted for hypertension, heart disorder, vision problems, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, right foot disorder, hepatitis C, and erectile dysfunction (and subsequently special monthly compensation based on the loss of use of a creative organ) as secondary to his diabetes mellitus. He alternatively contends that hepatitis C developed directly due to Agent Orange exposure or air gun immunization. A. Service Connection Law A veteran who had active service in the Republic of Vietnam, from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent. Service in the Republic of Vietnam includes service in the brown water offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313. There is a presumption of service connection for certain diseases associated with herbicide agent exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iv), 3.309(e). The presumption does not apply if there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.30(a)(6)(iii). The presumption of herbicide agent exposure is warranted for 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); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" Navy because they operated on the blue-colored waters of the open ocean. In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy veteran, development must provide evidence that the veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. Claims based on statements that exposure occurred because herbicide agents were stored or transported on the veteran's ship, or that the veteran was exposed by being near aircraft that flew over Vietnam or equipment used in Vietnam do not qualify for the presumption of exposure. See Veterans Benefits Administration (VBA) Fast Letter 10-37 (September 10, 2010). The Board acknowledges that in Gray v. McDonald, 27 Vet. App. 313 (2015), the Court of Appeals for Veterans Claims found that VA relied on insufficient evidence to designate Da Nang Harbor as offshore, rather than an inland, waterway. Gray, 27 Vet. App. at 325. The Court vacated that decision to allow VA to reevaluate its definition of inland waterways, including how that definition applies to Da Nang Harbor. Id. at 327. In light of the decision in Gray, VA amended its VA's Adjudication Procedure Manual with clear guidance as to how VA defines offshore waters as 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. VBA Manual M21-1, IV.ii.1.H.2.b. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish service connection on a direct basis the evidence must show (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). B. Claimed Agent Orange Exposure The Veteran has provided multiple theories of exposure to Agent Orange, including that his ship was off the coast of Vietnam and that between August 1965 and November 1965 he left his ship to go to Da Nang base to work on airplanes. In an August 2012 statement, he claimed that he worked on jets that were dripping in Agent Orange while onboard his ship. During his January 2015 Board hearing, he claimed that he was transported from his ship by small transport ships in 1965 to Da Nang to work on aircrafts. He alternatively raised a new contention at that time that his ship carried Agent Orange barrels. The Board finds that the Veteran is not credible in his reports of Agent Orange exposure and was not exposed to any herbicide agents, such as Agent Orange, due to his service from November 1964 to November 1966. The Board initially notes that the Veteran has been inconsistent as to his reported claims of Agent Orange exposure. With respect to serving on land in Vietnam, in an August 2003 Report of Contact a VA employee documented that the "Vet states he did disembark on land several times....He states he used to have to go ashore to fix downed aircraft." Further, in a February 2004 statement, the Veteran wrote that "I was on the land of Vietnam...between the period of Aug 65 to Nov 65." Also, in an August 2006 statement, the Veteran's former representative wrote that the Veteran "stated that he was on the shores of Vietnam as well as on the ship." At his October 2010 Board hearing, the representative stated that the Veteran was part of a detachment, Squadron 192, which was sent ashore off the USS Bonhomme Richard to Da Nang between August 1965 and November 1965. The Veteran confirmed his representative's statements at the hearing, and specified that he was in Vietnam for "approximately two days" on more than one occasion. In a May 2011 letter, the Veteran's former representative stated that "[t]he Veteran believes that the squadron records [from VA 192 aboard the USS Ticonderoga and the USS Bon Homme Richard] will verify his being flown from the carrier to Da Nang and other cities in Vietnam for the purpose of harvesting A4 parts from downed or grounded A4s." In June 2011, a VA clinician recorded that the Veteran "states that he served on land during duties to repair/replace/recover parts from aircraft at Da Nang Airbase." In a February 2014 VA Form 21-526EZ, the Veteran asserted that he was exposed to Agent Orange at Da Nang Airbase in November 1966. Further, at his January 2015 Board hearing, the Veteran testified that he stepped foot in Da Nang off of a transport. He reported that he was there for "a few hours, overnight." He stated that he went from his ship to Da Nang via an UNREP [underway replenishment] transport in 1965. He testified that he went to Da Nang "to bring back parts. Shot down...parts that were damaged or not damaged. Electrical parts." He elaborated that "we didn't bring the parts....The parts were brought back by somebody else....[We were in Da Nang] just to take the electrical parts. Make sure they were all together....[Then we] put [the parts] in a bucket....We took parts off the planes...where they were landing...[in] the base [at Da Nang]." The Veteran further stated that he "took care [of] all VA-192s," and when those planes landed in Da Nang, he went there to remove some parts before returning to the carrier. In contrast, in his April 2005 VA Form 9, he reported "I do not understand he VA's logic in denying herbicide exposure claims to the servicemen (like myself)...aboard US Navy ships off the coast of Vietnam." He further stated "[w]e were within sight of the land, and at times even close enough to distinguish individuals walking or standing on the land. Being this close to the land...reason that residue...blown out to sea." He reiterated that argument in an October 2006 VA Form 9, claiming that his hepatitis C was the "RESULT OF EXPOSURE TO HERBICIDES WHILE I WAS ABOARD THE USS BONHOMME RICHARD(CVA-31) AND USS TICODEROGA (CVA-14) OFF THE COAST OF VIETNAM [emphasis added]." He then claimed "I BELIEVE THE HERBICIDES SPRAYED OVER VIETNAM WERE CARRIED IN THE AIR TO SHIPS AND THOSE OF US ON THE SHIPS OFF THE COAST OF VIETNAM WERE EXPOSED IN THIS MANNER." From these statements the Veteran makes clear that he is claiming Agent Orange exposure not from actually stepping foot on Vietnam, but from proximity of his ship to Vietnam. Furthermore, the Veteran has been inconsistent in his reports of how long and when he has claimed to have been in Vietnam. During his October 2010 Board hearing, he claimed that he was in Vietnam for "approximately two days" on more than one occasion. However, during his January 2015 Board hearing, he only stepped foot in Da Nang off for "a few hours, overnight." Also, in his February 2014 VA Form 21-526EZ, the Veteran asserted that he was exposed to Agent Orange at Da Nang Airbase in November 1966, but had previously reported it was in 1965. An October 28, 1966 service personnel record documents that due to his unauthorized absence, the Veteran had been sentenced to twenty days of correctional custody. He was then discharged on November 30, 1966 and not recommended for reenlistment. In addition to the inconsistency in the Veteran's own reports of stepping foot on Vietnam, the Board further finds that the objective evidence of record does not support finding that he stepped foot on Vietnam. The Board has reviewed deck logs from both the USS Bonhomme Richard and the USS Ticoderoga during the applicable period and such records do not indicate that either ship docked in Vietnam, transited in inland waters, had personnel that set foot in Vietnam, or sent personnel on transport to any inland waters of Vietnam. The deck logs also make clear that neither ship travelled along any of the inland waterways of Vietnam. Such findings were similarly found in a May 2017 DPRIS report and a May 2015 VA Memorandum. In a November 2016 VA Memorandum, AOJ made a formal finding of insufficient evidence to corroborate in-country service in Vietnam. As to his September 2016 claim that while stationed off the Korean DMZ he boarded a ferry to Vietnam to retrieve aviation electrical parts, the Board finds, as a matter of common knowledge, that Korea (around the DMZ) and Vietnam are quite a distance apart geographically. The Board finds the contention that he boarded a small transport ship (as he reported using during his January 2015 Board hearing) to travel from Korea to Vietnam to lack credibility. Also, as documented above, the credible evidence of record does not support showing that his ships sent people to land on Vietnam, and given his duty history discussed below (if the Board were to concede sending seamen to Vietnam, which it does not), such duties were unlikely to have been given to the Veteran. The Board additionally notes that during his October 2010 Board hearing, the Veteran claimed to have gone to Da Nang from August 1965 to November 1965 in furtherance of his duties as an engineer, to pick up airplane parts or work on air planes. Per the May 2017 DPRIS response, the USS Bon Homme Richard conducted operations, including in the Vietnam area, at various times from April to December 1965. However, service personnel records document that from May 13, 1965 to August 13, 1965 he had actually been performing tour duties doing laundry. Also, from August 13, 1965 to November 13, 1965 his tour assignment was compartment cleaning. Additionally, a May 31, 1965 service personnel record specifically noted that the Veteran had been restricted to his ship for 40 days. Moreover, his December 11, 1965 evaluation reported that the Veteran's "performance of his job is very inadequate...needs almost constant supervision for even routine jobs such as sweeping down and cleaning compartment." Given such duty tours and work evaluation, the Board finds that even if deck logs or other credible evidence supported that one of his ships sent people to Vietnam to work on aircrafts (which the record does not support), such duties would be unlikely to have been trusted to the Veteran. The Veteran has also argued that his receipt of a Vietnam Service Medal is indicative of service in Vietnam. However, the service personnel records do not document such a medal. They do document that he was awarded an Armed Forces Expeditionary Medal in July 1965, based on "service in the Vietnam area of operations while serving on board the USS BON HOMME RICHARD." As such, the medal is not indicative of actual service in Vietnam, but rather service on board a ship in the Vietnam area of operations. Also, as noted above, none of the objective evidence reviewed by VA has indicated that the Veteran actually stepped foot in Vietnam. As to his claim that there were barrels of Agent Orange onboard his ships or that jets onboard his ships sprayed Agent Orange, the Board finds such claims not credible. As noted in the November 2016 VA Memorandum, a JSRRC Letter stated that "to date JSRRC has found no evidence that indicates Navy or OCast [sic.] Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides." The Board further notes that such reports of ships regularly spraying Agent Orange are in contrast to the Veteran's statements during his January 2015 Board hearing, when he reported that planes took pictures and bombed on missions. In an April 2005 VA Form 9, he alternately claimed "Naval aircraft flying over...landing on, the land would become contaminated and carry the herbicides back to their ship." In a September 2016 statement he similarly claimed that "I was constantly receiving planes off missions within minutes after...spraying Agent Orange." However, as noted in the November 2016 VA Memorandum, the JSRRC could not document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. There was no evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. Also, neither the USS Ticonderoga nor the USS Hommes appears on any of the lists of ships for which exposure to Agent Orange could be conceded presumptively. Moreover, the Board again notes that per the November 2016 VA Memorandum, a JSRRC Letter stated that "to date JSRRC has found no evidence that indicates Navy or OCast [sic.] Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides." Additionally, the Veteran has not indicated that he possesses any specialized knowledge in the scientific field such that he could determine without testing that Agent Orange was present on any of the aircraft onboard either the USS Ticonderoga or the USS Hommes. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. There is no objective evidence that the planes carried by the USS Ticonderoga or the USS Hommes were exposed to Agent Orange. The Veteran's claim that planes from his ship sprayed Agent Orange is not credible. To the extent that the Veteran claims that he was exposed due to proximity to Vietnam (or the Korean DMZ in a September 2016 statement - the Veteran has not claimed to have set foot on the Korean DMZ), while stationed on the coastal waters, the Board finds that such exposure is not found. In an April 2017 Memorandum from the Department of Defense, the Armed Forces Pest Management Board records indicated that herbicides used in Vietnam were applied to land vegetation; there were no aquatic applications. Additional, per study on whether Vietnam veterans "in the 'Blue Water' Navy experienced exposures to Agent Orange...comparable to those...Brown Water Navy and land-based veterans...study concluded that there was no historical or scientific evidence demonstrating that Blue Water Navy veterans were exposed to Agent Orange or TCDD." The Board finds such study to be more probative than the Australian study cited by the Veteran, as it more specifically addresses American soldiers and sailors. Furthermore, as noted above, VA does not concede presumptive exposure based on blue water service such as the Veteran's. The Board acknowledges that in Gray v. McDonald, 27 Vet. App. 313 (2015), the Court of Appeals for Veterans Claims found that VA relied on insufficient evidence to designate Da Nang Harbor as offshore, rather than an inland, waterway. Gray, 27 Vet. App. at 325. The Court vacated that decision to allow VA to reevaluate its definition of inland waterways, including how that definition applies to Da Nang Harbor. Id. at 327. In light of the decision in Gray, VA amended its VA's Adjudication Procedure Manual with clear guidance as to how VA defines offshore waters as 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. VBA Manual M21-1, IV.ii.1.H.2.b. Furthermore, Da Nang Harbor has been found to be considered offshore waters of Vietnam. See M21-1, Part IV, Subpart ii, 1.H.2.c. Given the Veteran's conflicting reports and the objective evidence of record in opposition to the Veteran's claims, the Board finds that the most probative and credible evidence of record does not support finding that the Veteran was exposed to an herbicide agent, including Agent Orange, during service and that the Veteran's reports of stepping foot on Vietnam are not credible. C. Service Connection and Special Monthly Compensation Claims The Veteran contends that his diabetes mellitus was caused by herbicide agent exposure during service. He further contends that service connection is warranted for hypertension, heart disorder, vision problems, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, right foot disorder, hepatitis C, and erectile dysfunction (and subsequently special monthly compensation based on the loss of use of a creative organ) as secondary to his diabetes mellitus. He alternatively contends that hepatitis C developed due to Agent Orange exposure or air gun injections. i. Diabetes Mellitus Service Connection Claim The Board will first address the diabetes mellitus claim. Medical evidence of record shows a current diagnosis of diabetes mellitus. Diabetes mellitus is listed as a disease associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). However, as explained above, the Board does not find that the Veteran was exposed to an herbicide agent during service. As such, service connection on that a presumptive basis is denied. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the Veteran's claim on a theory of direct entitlement to service connection. The November 1966 discharge examination found that the Veteran was normal under all systems, except for identifying body marks, scars, tattoos. A September 1991 private medical record documented a finding of "new onset diabetes" and a November 1991 one included a general system review and noted the recent diagnosis of diabetes, but found that the Veteran was otherwise in good health, including after review of vision, gait, penis, and nervous system. Per a December 1992 VA examination, the Veteran reported that he had a history of diabetes mellitus for only the last two years. Per an April 2003 VA medical record, the Veteran reported a history of diabetes mellitus in 1993. A February 1990 private medical record documented a negative history of diabetes mellitus. Other records have indicated other reported dates of diagnosis. However, the records are consistent that he did not have a diagnosis of diabetes mellitus for approximately 2 decades or more following his 1966 discharge from service. There is no medical evidence of any symptoms during service, there is no evidence of chronicity following service, and the physicians that evaluated the Veteran have not opined that the onset of diabetes mellitus occurred during service or provided any indication as to the etiology of diabetes mellitus, other than due to claimed herbicide exposure. Some records, such as the October 2007 VA medical record grouped a finding of obesity with a finding of diabetes mellitus. Therefore, the Veteran cannot prevail on his claim through a theory of direct service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Service connection for diabetes mellitus, type II is denied. ii. Hypertension, a Heart Disorder, Vision Problems, Peripheral Neuropathy of the Bilateral Upper and Lower Extremities, a Right Foot Disorder, and Erectile Dysfunction Service Connection Claims As to the other claims for service connection, the Veteran himself has not claimed to have had the current disorders since service, other than possibly hepatitis C. During his January 2015 Board hearing, he made clear that he was only claiming hypertension, heart disorder, vision problems, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, right foot disorder, and erectile dysfunction as secondary to diabetes mellitus. As service connection is denied for diabetes mellitus, the Board finds that service connection for hypertension, heart disorder, vision problems, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, right foot disorder, hepatitis C, and erectile dysfunction are denied as secondary to diabetes mellitus. 38 C.F.R. § 3.310. However, as the AOJ has previously considered service connection on a direct basis, the Board will as well. The Board again notes that the November 1966 discharge examination found that the Veteran was normal under all systems, except for identifying body marks, scars, tattoos. The record is subsequently silent for over two decades following discharge from service. The first records associated with the claims file are from the later 1980s and early 1990s, but do not document findings of, or even symptoms of, the claimed disorders. As to the hypertension claim, a February 1990 private medical record documented a negative history of hypertension. Another September 1991 private medical record noted a blood pressure of 126/84. Under Diagnostic Code 7101, for the purposes of that section, hypertension requires multiple findings of diastolic pressure are predominantly 90mm or greater or systolic pressure of 160 or greater. The September 1991 finding was not consistent with hypertension. The December 1992 VA examiner noted no history of hypertension and a blood pressure reading of 120/60, which similarly does not meet the criteria for hypertension. As such, the record is clear that the Veteran did not have hypertension for well over two decades following his discharge from service. As to the heart disorder and vision problem claims, the December 1992 VA examination noted there was no history of coronary artery disease and normal ocular movements and reactions. Kaiser records from the late 1980s and early 1990s did not document findings as to coronary artery disease or other heart disorder, or vision problems. Regarding peripheral neuropathy of the bilateral upper and lower extremities a February 1990 private medical record noted tingling in the extremities, but the only diagnosis was of chest wall pain. A September 1991 private medical record documented tingling hand and foot since noon; the diagnosis was new onset diabetes mellitus and probable hypoglycemia. A December 1991 private medical record noted normal cranial nerve system. A May 1992 private consult noted neurologic examination and found no acute gross sensory or motor deficit. A July 1992 private medical record documented no focal neurological deficit; there was no sensory deficit of the left arm, normal strength and normal deep tendon reflexes. December 1992 VA examination showed no history of tingling or numbness in the feet. A February 2003 VA medical record documented no history of sensory deficit. As to the claimed right foot disorder, during his January 2015 Board hearing, the Veteran reported that he had a bunion removed from the right foot and had foot pain during his service on the USS Bon Homme Richard, but reported that he could not remember having right foot pain at discharge. He also denied having right foot symptoms post-service during his civilian work. Rather, he claimed he did not have right foot pain until the last few years when he had diabetes mellitus. The Board notes that a November 1991 private medical record gives a past medical history of left foot bunionectomy in 1964. This report was of the opposite foot of the claimed right foot. Furthermore, the Veteran enlisted on November 27, 1964 and would presumably still be in basic training rather than serving on a ship through the end of 1964, yet during his January 2015 Board hearing had claimed that he had right foot bunion removed while on the USS Bon Homme Richard. The November 1964 enlistment examination did not document any foot disorder, and neither did his November 1966 separation examination. Furthermore, on the November 1966 separation examination, the Veteran specifically denied having any significant or interval history. Given the inconsistencies of the Veteran's reports and the medical evidence of record, the Board finds that the Veteran is not credible in his report regarding a right foot disorder in service. Moreover, the record is silent for any complaints of, or treatment for, a foot disorder until an August 1992 private medical record documented recent right toe pain; the impression was gout most likely. December 1992 VA examination showed history of gouty arthritis right big toe for one year. The examiner also found bilateral hallux valgus deformity of the bilateral big toes and rule out degenerative joint disease. As to erectile dysfunction, there were no reports of erectile dysfunction in the private medical records from the late 1980s and early 1990s or the VA medical records. For all these claimed disorders, there is no medical evidence of any symptoms during service that continued after service, there is no evidence of chronicity following service, and the physicians that evaluated the Veteran have not opined that the onset of the above claimed disorders occurred during service or provided any indication as to the etiology of the claimed disorders was due to service. The Veteran himself has generally not claimed that such disorders developed other than from nonservice-connected diabetes mellitus and that they developed after service. As the preponderance of the evidence is against these claims, the benefit of the doubt rule does not apply. Gilbert, supra. The Veteran's claims for service connection for hypertension, heart disorder, vision problems, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, right foot disorder, and erectile dysfunction are denied. iii. Special Monthly Compensation for Loss of Use of Creative Organ The Veteran generally contends that he has erectile dysfunction due to his claimed diabetes mellitus, as discussed above. Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one or more creative organs if such loss is a result of a service-connected disability. As explained above, the Board has found that diabetes mellitus and erectile dysfunction are not due to service and has denied service connection for both disabilities. Because erectile dysfunction is not service-connected, entitlement to special monthly compensation for loss of use of a creative organ must be denied as a matter of law. iv. Hepatitis C Service Connection Claim For hepatitis C, the Veteran contends that he got such disorder from herbicide exposure (which the Board has already found did not occur), from diabetes mellitus (for which the Board has denied service connection) or is otherwise due to service. During the January 2015 Board hearing, the Veteran made clear that he was essentially claiming it was due to service because he could not think of a possible cause since he claimed to not have tattoos, piercings, multiple sex partners, or a blood transfusion. During the hearing, other than herbicide exposure he has not indicated how he got hepatitis C in service. Prior to the hearing, in an April 2004 correspondence he claimed to have developed hepatitis C from "air gun" vaccination during service. In April 2004, he submitted an article entitled "Jet Gun Injections" that found that "[t]o date, the transmission of the hepatitis C virus by 'air gun' vaccination has not been documented. However, in theory, it is entirely possible that the virus can be transmitted in this fashion." In September 2006, he submitted another article entitled "Hepatitis C from JET GUN INJECTIONS." It reported that jet injectors may be ideal for mass immunization programs, but not until design refinements eliminate their capacity to transmit blood-borne infections, according to researchers. Per a VA Fast Letter 04-13, despite the lack of any scientific evidence to document transmission of HCV with air gun injectors, it is biologically plausible. An April 2004 letter from a VA physician noted that the Veteran had hepatitis C and had denied risk factors; the physician had confirmed absence of tattoos. An April 2004 VA medical record documented that the Veteran denied illegal drug use, tattoos, or multiple sexual partners (says only 3 in lifetime). On examination he had no tattoos. The provider noted that he could only say that he cannot confirm other exposure methods. In August 2004, the Veteran underwent VA examination for hepatitis C. The examiner noted the Veteran's claim of hepatitis C from air gun injection and denial of other risk factors. The examiner noted the Veteran's reports of smoking starting at age 17, and quitting in 1984. There was a negative history for intravenous drug abuse, but there was a positive history for smoking cocaine and intranasal use of cocaine. The examiner noted a 2003 VA medical record documenting a report by the Veteran of cocaine use three months prior to being seen and marijuana use in 2000. The examiner noted that the Veteran currently denied any tattoo history. He had pierced ears. He had blood transfusions in 1994. He had sexually transmitted diseases of syphilis in 1968 and he had gonorrhea twice in 1968 that was treated both times. The Veteran had no problem that day with hepatitis C; it was just diagnosed in a blood test. He had no vomiting, hematemesis, melena, abdominal pain, fever, distention, nausea, or vomiting. He said he felt tired. The August 2004 VA examiner diagnosed the Veteran with Hepatitis C, positive per labs, normal liver function studies, asymptomatic. He opined that it was less likely as not that there is a connection between the air injection gun and hepatitis C. The examiner found that the Veteran had a history of alcohol use and cocaine both smoking it and intranasal administration and blood transfusions, which were presumed to be given in 1994. The examiner found all those methods possible for acquiring hepatitis C. The Veteran has claimed that the August 2004 VA examination was based on an inaccurate history, as he currently contends that he does not have risk factors of tattoos, piercings, multiple sex partners, or a blood transfusion. In an April 2004 Risk Factors for Hepatitis Questionnaire filled out by the Veteran, he denied hepatitis risk factors including intravenous drug use, intranasal cocaine, high-risk sexual activity, hemodialysis, tattoos or body piercings, sharing toothbrushes or razor blades, acupuncture with non-sterile needles, blood transfusion, being a healthcare worker exposed to contaminated blood or fluid. The Board finds the Veteran's current denials of hepatitis C risk factors are not credible. For example, in the March 4, 2003 VA medical record that included a Hepatitis C risk assessment, it documented that the Veteran had reported risk factors of multiple sexual partners and intemperate alcohol use. Based on that report of history, VA obtained a hepatitis C blood test for the Veteran. Such a test would not have been obtained unless the Veteran had actively reported risk factors to VA. Additionally, such a report is consistent with the multiple treatments for sexually transmitted diseases noted in the VA medical records and by the August 2004 VA examiner. The Veteran also has denied having body piercings, but the August 2004 VA examiner noted that the Veteran had pierced ears and other VA medical records do not document a lack of pierced ears. Notably, in April 2004, the Veteran's VA physician noted that the Veteran had denied risk factors, and the physician had confirmed absence of tattoos. However, the physician does not make a finding as to whether the Veteran has pierced ears and piercings were not noted in the VA medical record as to one of the risk factors that the Veteran had then denied to that VA physician. Additionally, the Veteran denied intranasal cocaine use and blood transfusion. A March 2003 VA medical record documented that the Veteran had been treated for a bleeding ulcer in 1994 and had had a blood transfusion in California. A February 2003 VA medical record documented a history of cocaine abuse, with the last use three months previously. There is thus inconsistency as to the Veteran's multiple hepatitis C risk factors. The Board finds that documentation noted above carries far more weight, credibility and probative value than the recent lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). Such contemporaneous records are more reliable, in the Board's view, than the unsupported assertions of events now over a decade past, made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board further notes that even if, for the sake of argument, it was to take the Veteran's denials of other risk factors as credible, his claim still fails. He still has the other risk factor of intemperate alcohol use, documented multiple times in the VA medical records. Furthermore, the VA examiner specifically found that the Veteran's hepatitis C was not due to service. Because the greater weight of the evidence relates the Veteran's claimed disability to post service hepatitis C risk factors, a basis upon which to establish service connection for hepatitis C has not been presented. In reaching this decision, the Board notes the Veteran himself attributes his hepatitis C to service, but as indicated, he is not considered a reliable medical historian and in any event is not shown to have any medical expertise as to render his opinion probative. The preponderance of the evidence is against the claim, and the benefit of the doubt rule does not apply. Gilbert, supra. The Board concludes that service connection for hepatitis C residuals is not warranted. ORDER Service connection for diabetes mellitus type II is denied. Service connection for hypertension is denied. Service connection for a heart disorder is denied. Service connection for vision problems is denied. Service connection for bilateral upper extremity peripheral neuropathy is denied. Service connection for bilateral lower extremity peripheral neuropathy is denied. Service connection for a right foot disorder is denied. Service connection for hepatitis C is denied. Service connection for erectile dysfunction is denied. Special monthly compensation for the loss of use of a creative organ is denied. MICHAEL E. KILCOYNE H. M. WALKER Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs