Citation Nr: 1803578	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-12 087	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, Type II (DMII).

2. Entitlement to service connection for ischemic heart disease (IHD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

G. Johnson, Associate Counsel



INTRODUCTION

The Veteran had honorable active service in the United States Navy from July 1964 to September 1967.  The Veteran received multiple awards and medals including the Vietnam Service Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

In his July 2012 notice of disagreement, the Veteran requested a Decision Review Officer (DRO) hearing.  In December 2017 the Veteran submitted a written request to withdraw his request for a DRO hearing, the Veteran's hearing request is therefore deemed withdrawn.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The evidence reflects that the Veteran did not have service in the Republic of Vietnam or its inland waters during the Vietnam era, and he is not shown by competent and probative evidence to have been exposed to herbicides in service.

2. The preponderance of the competent and credible evidence shows that the Veteran's DMII was not manifested during active service or for many years afterward.  The evidence does not show that DMII was presumptively incurred or aggravated during a period of active duty or that it is otherwise related to service or any aspect therein.

3. The preponderance of the competent and credible evidence shows that the Veteran's IHD was not manifested during active service or for many years afterward.  The evidence does not show that IHD was presumptively incurred or aggravated during a period of active duty or that it is otherwise related to service or any aspect therein.


CONCLUSIONS OF LAW

1. DMII was not incurred in or aggravated by the Veteran's military service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2. IHD was not incurred in or aggravated by the Veteran's military service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A.  VA has met the requirements of 38 U.S.C. §§ 5103 and 5103A.

By correspondences dated in September 2011 and February 2012, VA notified the Veteran of the information and evidence needed to substantiate and complete the claims for service connection.  The letters also notified the Veteran as to how VA assigns disability ratings and effective dates.

VA has also satisfied the duty to assist.  The claims folder contains service treatment records and VA treatment records.

In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim.

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (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.  Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).

Diabetes mellitus and ischemic heart disease are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim.  Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013).

For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus and ischemic heart disease, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

In addition if a Veteran was exposed to an herbicide agent 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, certain diseases, including diabetes mellitus and ischemic heart disease, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied.  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); see also 38 C.F.R. § 3.313(a); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements.  First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam era or elsewhere outside of Vietnam where Agent Orange was used or sprayed.  See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e).  See Brock v. Brown, 10 Vet. App. 155, 162 (1997).

Historically, the Veterans Benefits Administration (VBA) has extended the herbicide presumption to naval ships, which entered Vietnam's inland waterways or those, which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships).  Significantly, in April 2015, the United States Court of Appeals for Veterans Claims (Court), in addressing a claim for presumptive service connection based on herbicide exposure while that Veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to Veterans based on the likelihood of exposure to herbicides.  Gray v. McDonald, 27 Vet. App. 313, 326 (2015).

As a result of the Gray decision, the VBA revised its Live Manual as to which bodies of water in Vietnam constitute inland waterways.  The revised M21-1 defines coastal harbor waters as offshore, not inland waterways (see VBA Manual IV.ii.1.H.2.b.), and specifically lists Da Nang Harbor as offshore waters (blue-water Navy service).  See VBA Manual M21-1, IV.ii.1.H.2.c.  VBA also updated its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (most recently updated November 1, 2017).

III. Exposure to Herbicides

The Veteran asserts that he was exposed to herbicides when he served aboard the USS Davis within Vietnam territorial waters and Da Nang Harbor during his period of active duty service.  He stated that the USS Davis was the flag (command) ship in the area at that time, often operating within 50 feet of shore.  The Veteran asserted that the ship operated close enough to the shoreline of Vietnam for the Veteran to become exposed to herbicides.

At the outset, the Board notes that the Veteran's service personnel records reflect that the Veteran served honorably in the United States Navy from July 1964 to September 1967 during the Vietnam war and was assigned to the USS Davis (DD 937).

The Board has reviewed VBA's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents.  The Board notes that in December 1968 the USS Davis sent small boats ashore from anchorage while providing gunfire support in Da Nang Harbor.  The Veteran did not serve aboard the USS Davis in December 1968.

The USS Davis conducted operations in the coastal waters of the IV Corps area of the Republic of South Vietnam (RVN) during the period of March 6, 1966 to April 6, 1966 to conduct Naval Gunfire Support (NGFS), protective screen, rescue destroyer duty, and plane guard for the USS Hancock (CVA-19) and the USS Ticonderoga (CVS-14).  The USS Davis transited to I Corps area, RVN, to conduct NGFS operations at the Province of Quang Ngai, Chu Lai, and Da Nang RVN for day and night operations during the period of May 13, 1966 to June 9, 1966, and the USS Davis conducted NGFS operations in coastal RVN during the period of June 22, 1966 to July 2, 1966.  The command history of the USS Davis does not document that the ship docked, transited inland waterways, or that personnel stepped foot in the Republic of Vietnam in 1966.

Based on the sum of the evidence, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service.  He did not serve in the Republic of Vietnam or its inland waters during the period beginning on January 9, 1962 and ending on May 7, 1975, and is not presumed to have been exposed during such service to an herbicide agent.  Exposure to an herbicide agent outside Vietnam is not claimed or shown.  Accordingly, the presumptive provisions concerning herbicide exposure is not available.  38 C.F.R. §§ 3.307(a)(6); 3.309(e).

IV. Service Connection for Diabetes Mellitus, Type II

The Veteran asserts that his diabetes mellitus, Type II is related to exposure to herbicides in service.  In a May 2015 statement, the Veteran asserted that exposure to herbicides caused his DMII.

Based on the sum of the evidence, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service.  As discussed above, the Veteran did not serve in the Republic of Vietnam or its inland waters during the period beginning on January 9, 1962 and ending on May 7, 1975, and is not presumed to have been exposed during such service to an herbicide agent.  Exposure to an herbicide agent outside Vietnam is not claimed or shown.  Accordingly, the presumptive provisions concerning DMII and herbicide exposure are not available, and service connection on that basis is denied.  38 C.F.R. §§ 3.307(a)(6); 3.309(e).

The Veteran did not claim that his DMII began in service until filing his original claim for this disability in August 2011, more than 40 years after separation from service.

There is no competent evidence, which establishes that DMII manifested to a degree of 10 percent within a year of his separation from active service.

VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that the Veteran suffered an injury or incurred a disease during service."  Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009).

Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for DMII on any basis.  Thus, the claim for service connection is denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV. Service Connection for Ischemic Heart Disease

The Veteran asserts that his ischemic heart disease is related to exposure to herbicides in service.  In a May 2015 statement, the Veteran asserted that exposure to herbicides caused his IHD.

Based on the sum of the evidence, the Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service.  As discussed above, the Veteran did not serve in the Republic of Vietnam or its inland waters during the period beginning on January 9, 1962 and ending on May 7, 1975, and is not presumed to have been exposed during such service to an herbicide agent.  Exposure to an herbicide agent outside Vietnam is not claimed or shown.  Accordingly, the presumptive provisions concerning DMII and herbicide exposure are not available, and service connection on that basis is denied.  38 C.F.R. §§ 3.307(a)(6); 3.309(e).

The Veteran did not claim that his IHD began in service until filing his original claim for this disability in July 2007, 40 years after separation from service.

There is no competent evidence, which establishes that IHD manifested to a degree of 10 percent within a year of his separation from active service.

VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that the Veteran suffered an injury or incurred a disease during service."  Holton, supra.

Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for IHD on any basis.  Thus, the claim for service connection is denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra.









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ORDER

Service connection for diabetes mellitus, Type II is denied.

Service connection for ischemic heart disease is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs