Citation Nr: 1803278 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-15 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents. 3. Entitlement to service connection for ischemic heart disease, claimed as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1971. This appeal is before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a June 2017 Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in St. Petersburg, Florida. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran had no service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and he was not actually exposed to herbicide agents during his service. 2. Type 2 diabetes mellitus, prostate cancer, and ischemic heart disease were not incurred in service, are not otherwise related to service, and did not become manifest to a degree of 10 percent or more within one year of service separation. CONCLUSIONS OF LAW 1. Type 2 diabetes mellitus was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. Prostate cancer was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. Ischemic heart disease was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Required notice was provided by a letter dated in November 2011. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service medical records and VA treatment records have been obtained. The Board acknowledges that the Veteran has not been provided with VA examinations pertaining to the claimed disorders. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there is no indication that type 2 diabetes mellitus, prostate cancer, and ischemic heart disease are related to service, to include claimed in-service exposure to herbicide agents, as there was no such exposure. VA therefore has no duty to provide a medical examination. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for Diabetes, Prostate Cancer, and Ischemic Heart Disease The Veteran seeks service connection for diabetes mellitus type 2, prostate cancer, and ischemic heart disease, claimed as due to in-service exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including diabetes mellitus, malignant tumors, and cardiovascular-renal disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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). In order to be entitled to the presumption of exposure to herbicide agents, a claimant must have been present within the land borders of Vietnam at some point in the course of his duty. Haas v. Peake, 525 F.3d 1168, 1172 (2008). If a veteran was exposed to an herbicide agent during active military, naval, or air service, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), prostate cancer, and ischemic heart disease shall be service-connected if the requirements of § 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 § 3.307(d) are also satisfied. The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. 3.307(a)(6)(ii). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, there is no assertion that the Veteran was stationed in the Republic of Vietnam, or had official duty there, and his service personnel records do not reflect any such duty. In fact, at the June 2017 Board hearing, the Veteran confirmed that he never set foot on the ground in Vietnam, and was never on a vessel that went ashore in Vietnam at any point during his service. For these reasons, the Board finds that the Veteran did not go ashore or have visitation in Vietnam. VA has confirmed that the Veteran served aboard the USS Fox (DLG-33), which was in the official waters of the Republic Of Vietnam from June 24, 1970, to July 17, 1970; August 7, 1970, to August 28, 1970; and September 7, 1970, to October 5, 1970. The Veteran submitted deck logs from the USS Fox which indicate that the USS Fox anchored in Da Nang Harbor in June 1970. However, anchoring in Da Nang Harbor does not establish exposure to herbicide agents, either by presumption or in fact. A recent amendment to VA's Adjudication Procedure Manual classifies inland waterways as fresh water rivers, streams, and canals, and similar waterways. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is considered service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See VBA Manual M21-1, IV.ii.1.H.2.c.; see also VBA Manual M21-1, IV.ii.2.C.3.m. Offshore waters are the 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. Under the amended criteria, consistent with the pre-amended criteria, Da Nang Harbor is considered to be offshore waters of the Republic of Vietnam and is not an inland waterway subject to the presumption of exposure to herbicide agents. See VBA Manual M21-1, IV.ii.1.H.2.c. Therefore, to the extent the Veteran relies on the presence of the USS Fox in Da Nang harbor, the presumption of exposure to herbicide agents, and the presumption of service connection for diabetes mellitus, prostate cancer, and ischemic heart disease do not attach. The Board also acknowledges Gray v. McDonald, 27 Vet. App. 313 (2015), in which the United States Court of Appeals for Veterans Claims (Court) held that VA should determine its definitions of open deep-water harbors versus inland waterways in a manner consistent with 38 C.F.R. § 3.307(a)(6)(iii) and the emphasis on probability of exposure to herbicides. To that end, VA's Veterans Benefits Administration Compensation Service has clarified its approach to defining Vietnam's inland waterways, and has found that Da Nang Harbor and Cam Ranh Bay are not considered to be inland bodies of water subject to the presumptions of herbicide exposure, because they are open to the sea with extensive entry distance for easy access; not connected to a major inland river; not long or narrow; they both have a deep water channel for easy ship anchorages; and there is no historical evidence of extensive Agent Orange aerial spraying in Da Nang or Cam Ranh. Overall, neither Da Nang Harbor nor Cam Ranh Bay is an inland waterway because they both offer wide open access to ocean-going ships, with a deep water channel that is contiguous with the South China Sea. See Veterans Benefit Administration Compensation Service rating job aid, "Inland versus non-inland RVN water bodies" and "Developing Claims Based on Service Aboard Ships Offshore of the RVN or on Inland Waterways." The Board finds the above cited definition of Da Nang Harbor and Cam Ranh Bay as non-inland waters adequately addresses the directive of the Veterans Court in Gray. The Veteran also alleged that the claimed for type 2 diabetes mellitus, prostate cancer, and ischemic heart disease disabilities are related to prolonged airborne exposure to herbicide agents while operating in the waters of Vietnam, as well as exposure from daily helicopter operations between the ship he was stationed on and an aircraft carrier. The Veteran also asserted that the Ranch Hand site, which diluted and filled herbicide agents into aircrafts that performed the spraying of such herbicide agents, was right on the tributaries dumping directly into the Da Nang Harbor, and that herbicide pollution would have been extraordinary at that time. The Veteran advanced that herbicide agents have been alleged to be, or proven to be active up to 100 miles airborne, and that the USS Fox average sailing parameters were within 40 to 60 miles offshore the Republic of Vietnam. However, the Veteran has not provided any evidence showing that herbicide agents have been proven to be active up to 100 miles airborne. To the extent that the Veteran is alleging that he was directly sprayed with herbicide agents while aboard the USS Fox by Operation Ranch Hand planes or that herbicide agents were airborne in the waters offshore Vietnam, the Board finds that this assertion is not credible and that no further efforts are necessary to research this allegation. It is a tenet of VA law that herbicide agents were not applied in the waters offshore Vietnam. This has been cited as fact both in rulemaking and by the United States Court of Appeals for the Federal Circuit (Federal Circuit). The reason given for the current wording of the regulations limiting the presumption of exposure to herbicide agents to those with duty or visitation in the Republic of Vietnam is the explicit statement in the rule: "Because herbicides were not applied in waters off the shore of Vietnam." See 62 FR 51274. Moreover, in Haas, the Federal Circuit cited as "undisputed fact--that spraying was done on land, not over the water." Haas, 525 F.3d at 1195. The Veteran's unsubstantiated allegation is in direct contradiction to accepted fact and law regarding the application of herbicide agents and does not warrant further investigation. The Board finds that his assertions and the evidence submitted in support of his assertions are not credible and that no further development is necessary to investigate them. In order to establish actual exposure to herbicide agents by airborne exposure or by exposure to persons or aircrafts that may have been exposed to herbicides, or in the waters of Da Nang Harbor, the Veteran must establish not only that it is theoretically possible for such exposure to have occurred, but that it is at least as likely as not that such exposure occurred. None of the evidence he has submitted or identified establishes more than the mere possibility of exposure. The Veteran has professed no specialized ability to detect herbicide agents in the environment, and his assertions of exposure are essentially speculative. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson's assertions indicating exposure to chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. It was noted that in contrast to situations involving medical symptoms or injury, lay assertions that an exposure event occurred must be weighed against other evidence of record, including the lack of documentary evidence of the incident. Here, there is a difference in documenting offshore airborne exposure to herbicide agents or contamination of an aircraft or personnel from operations in Vietnam and documenting actual exposure to the herbicide agent itself. The Veteran relies on his unsubstantiated assertion that the chemical would linger in significant concentrations indefinitely on objects or persons exposed, and would transfer in such concentrations to those coming in subsequent contact. This is a theory, not a fact. The Board reiterates that establishing the mere possibility of exposure, or excluding its impossibility, is not enough. Based on the evidence here, the Board finds that the evidence of actual exposure from exposure to crew and supplies transferred from other ships, or from the water and air in Da Nang Harbor has not attained the point of relative equipoise with the evidence against actual exposure, and does not meet the standard established in Bardwell. The Veteran has not alleged, and the evidence does not otherwise reflect, that the claimed type 2 diabetes mellitus, prostate cancer, and ischemic heart disease started in service or manifest within one year of service separation. Service treatment records show no complaints, treatment, or diagnosis of type 2 diabetes mellitus, prostate cancer, and ischemic heart disease. The March 1971 service separation examination report shows a normal clinical evaluation of the endocrine system, genitourinary system, and cardiovascular system. Similarly, a May 1972 post-active service examination report shows a normal clinical evaluation of the endocrine system, genitourinary system, and cardiovascular system. Accordingly, the Board finds that none of the claimed disorders is directly related to service, and that type 2 diabetes mellitus, prostate cancer, and ischemic did not become manifest to a degree of 10 percent or more within one year of service separation. The Board also finds that none of the claimed disorders is related to in-service exposure to herbicide agents, as there was no such exposure. In sum, the Board finds that the Veteran had no service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; he was not actually exposed to herbicide agents during his service; the claimed disorders are not directly related to service; and the claimed disorders did not become manifest to a degree of 10 percent or more within one year of service separation. As such, the Board concludes that service connection for claimed diabetes mellitus, prostate cancer, and ischemic heart disease is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus is denied. Service connection for prostate cancer is denied. Service connection for ischemic heart disease is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs