Citation Nr: 1802887 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-25 474A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In June 2017 the Board remanded the case for the Veteran to be scheduled for a video conference hearing. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Accordingly, the Board finds there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's sleep apnea is reasonably shown to have been incurred during active duty service. 2. The Veteran did not serve or visit on the ground, on a ship at dock or on the inland waterways of Vietnam; there is no presumption that he was exposed to herbicides while service on active duty. 3. Diabetes mellitus was not manifested in service or for many years thereafter, and the preponderance of the evidence is against a finding that it is related to the Veteran's service. 4. The Veteran's hypertension is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 3.61 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection in general Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289 (2013). Service connection for certain chronic diseases, including diabetes, may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Sleep Apnea The Veteran contends that his sleep apnea began during his active duty service and has persisted since. The question for the Board is whether the Veteran's current diagnosis of sleep apnea either began during active service, or is etiologically related to an in-service disease or injury. In this case, the Board finds that the credible evidence is at least in equipoise with regard to the Veteran's claim that sleep apnea began during his active duty service and that service connection should be awarded. The Veteran's service treatment records (STRs) reflect that he received treatment for a chronic cough in February 1974 and January 1975. The Veteran's post-service VA treatment records show that in March 2003, sleep apnea was diagnosed in a sleep study and he was fitted for a CPAP machine. In a statement received in July 2016, the Veteran's ex-wife reported that she was married to the Veteran from 1975 to 1988 and that during their marriage they had trouble sleeping in the same bed due to the Veteran's loud snoring. She reported that he often woke up at night due to choking. She also described that there were times were his snoring would stop and she would have to check to see if he was still breathing. In a July 2016 statement, the Veteran's current wife reported that they had been married for over 30 years and the Veteran's snoring had been an ongoing problem. She reported that the Veteran would stop breathing in his sleep and resume his snoring. She described that on several occasions she had to roll him on his side to get the snoring to stop, and at times would have to make sure he was still breathing. She also reported that the Veteran had also woken up coughing and choking when he was sleeping. At the September 2017 videoconference the Veteran testified that he remembered snoring loudly during his time of active duty service and that it has continued since service. He described that he thought his snoring was possibly due to his odd hours of sleep. He also testified that he was first diagnosed with sleep apnea round 2000. The Veteran has reported that he snored loudly during service, and his ex-wife has reported that after returned home from service he continued to snore and choke in his sleep. His current wife also reported that he continues to snore and choke in his sleep. Lay persons are competent to testify to matters of which they have firsthand knowledge (i.e., snoring). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran, his ex-wife, and current wife's lay statements are competent credible evidence of symptomatology beginning in-service and continuing since. In this case, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current sleep apnea originated during his military service. See 38 U.S.C § 5107 (b). In this case, there is evidence of a current disability, and the Veteran, his ex-wife, and wife have provided competent and credible statements of in-service incurrence and continuity of symptomatology since service. Accordingly, service connection for sleep apnea is granted. Diabetes Mellitus The Veteran contends that service connection is warranted for his diabetes mellitus because he was exposed to herbicides during his active duty service in the waters surrounding the Republic of Vietnam. A veteran who "served in the Republic of Vietnam" between January 6, 1962, and May 7, 1975, is presumed service connected for certain conditions likely caused by exposure to Agent Orange, including diabetes mellitus, even if the veteran cannot prove actual exposure to a qualifying herbicide. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(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). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) adopted VA's interpretation of the statutory phrase "served in the Republic of Vietnam" to mean that, for a veteran to be entitled to the presumption, he or she must have been present at some point on the landmass or inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). For veterans who served in the U.S. Navy during the Vietnam era, VA distinguishes between the "brown water" Navy, which consisted of usually smaller vessels that operated on the inland waterways of Vietnam, and the blue water Navy, which consisted of larger gun line ships and aircraft carriers operating on the blue-colored waters of the open ocean. VA Training Letter 10-06, at 4 (Sept. 9, 2010). VA has defined inland waterways to include "rivers, estuaries, canals, and delta areas 'inside the country.'" Gray v. McDonald, 27 Vet. App. 313 (2015). VA does not include in the definition of inland waterways "open deep-water coastal ports and harbors where there is no evidence of herbicide use." Id. at 321-22. Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veteran's claimed theories of entitlement for service connection for diabetes mellitus does not include direct service connection. He only asserts that his diabetes is due to exposure to herbicides during service. The Veteran has not contended, and there is no evidence to suggest, that his diabetes mellitus manifest to a compensable evaluation within one year of separation from active duty. His post-service treatment records reflect that diabetes mellitus was initially diagnosed in May 2002. Accordingly, the Board finds that the preponderance of the evidence reflects that presumptive service connection for diabetes mellitus as a chronic disease is not warranted. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307. 3.309. The Board also finds that the preponderance of the evidence is against service connection for diabetes mellitus due to exposure to herbicides. 38 U.S. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran does not contend that he ever set foot in Vietnam. Rather he contends that he was exposed to herbicides while his ship, the USS Oriskany, was located in Da Nang Harbor and the water aboard the ship was contaminated by herbicides. The Veteran's service personnel records reflect that he served on the USS Ranger from October 2, 1972 to December 1, 1972 and on the USS Oriskany from November 1972 until June 1975. In a July 2013 formal finding, the Joint Services Research Center (JSRRC) determined that there was no evidence that the Veteran was ever in Vietnam or exposed to Agent Orange. While the USS Ranger and USS Oriskany were operating in the waters of Vietnam, neither ship operated on inland waterways or docked in Vietnam. The formal finding also noted that the Veteran's service treatment records and personnel records were negative for service in Vietnam or Agent Orange exposure. In September 2013, the Veteran submitted a copy of a June 2006 correspondence to the Returned & Services League of Australia referring to research by the Australian Navy and the United States Institute of Medicine that suggests the possibility of herbicide exposure based on contamination of drinking water with herbicides and dioxin. In September 2013, the Veteran also submitted copies of two articles, "Dioxin on the Carriers" and "The Da Nang Harbor Report," published by the Blue Water Navy Vietnam Veterans Association. These articles indicated that blue water veterans were exposed to dioxins in several ways, including atmospheric and oceanic drift of Agent Orange for the Vietnamese landmass; cross-contamination with laundry of service members who traveled to the Vietnamese landmass; cross-contamination of the ships' fresh water intake system with water containing herbicides; and contamination of the ship's rations. In September 2017 the Veteran testified that while he never stepped foot in Vietnam, he was exposed to Agent Orange while he was in Da Nang Harbor. He testified that his exposure to Agent Orange was via exposure to contaminated water or clothing while working in the ship's laundry. He also testified that he was exposed to Agent Orange that was on aircrafts that had possibly flown over Vietnam. The Board finds that the preponderance of the evidence is against finding that the Veteran was exposed to Agent Orange during service. In this case, the presumption of exposure to Agent Orange does not apply. The Veteran does not assert, and has specifically denied, that he ever stepped foot in Vietnam, and while he served on ships in Da Nang Harbor, such service does not constitute inland waterway service or qualify as docking to establish presumptive exposure to herbicides. See VA Adjudication Manual M21-1 IV.ii.1.H.2.c. The Veteran asserts that he was directly exposed to Agent Orange due to contaminated water aboard his ship. However, the research to which the Veteran refers is too general in nature to provide, alone, the necessary evidence to show that the Veteran was exposed to Agent Orange while stationed in Da Nang Harbor. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The research referred to by the Veteran does not show to any degree of specificity that he was exposed to Agent Orange while stationed at Da Nang Harbor. Wallin v. West, 11 Vet. App. 509 (1998). In Haas, supra, the Federal Circuit highlighted the VA's rulemaking with respect to an Australian study: VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War. . . . Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied. . . . Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources, or if they did, whether the distillation process was similar to that used by the Australian Navy. Crucially, based on this analysis, VA stated that "we do not intend to revise our long-held interpretation of 'service in Vietnam.'" See Haas, 525 F.3d at 1194 [citing 73 Fed. Reg. 20,566, 20,568 (2008)]. As the competent, credible evidence does not reflect that the Veteran served or visited on the ground, on a ship at dock or on the inland waterways of Vietnam, it may not be presumed that he had exposure to herbicides. Moreover, there is no competent credible evidence of record that the Veteran was otherwise exposed. Accordingly, as the presumption of service connection for diabetes mellitus based on Agent Orange exposure does not apply, and the Veteran has not asserted that his diabetes mellitus is otherwise directly related to his service, service connection for diabetes mellitus is not warranted. As the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran contends that he has hypertension that was caused or aggravated by diabetes. He has not alleged that his hypertension is connected to his active duty service or to his now service-connected sleep apnea disability. The Board notes that because service connection for diabetes has not been established, there is no legal basis to find that the Veteran's hypertension is secondary thereto. As the law and not the evidence is dispositive in this instance, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly the Board finds that the Veteran is not entitled to compensation for hypertension. ORDER Service connection for sleep apnea is granted. Service connection for diabetes mellitus is denied. Service connection for hypertension is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs