Citation Nr: 18139908 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-18 249 DATE: October 1, 2018 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is denied. Entitlement to service connection for lower extremity neuropathy as secondary to diabetes mellitus is denied. Entitlement to service connection for diabetic retinopathy as secondary to diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran did not have service in-country in Vietnam from January 9, 1962, to May 7, 1975, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. 2. The preponderance of the evidence is against a finding that the Veteran’s current diabetes mellitus had its clinical onset in service, manifested itself within the first post-service year, was the result of exposure to herbicide agents, or is otherwise related to the Veteran’s active service. 3. The preponderance of the evidence is against a finding that the Veteran’s current lower extremity neuropathy is secondary to a service connected disability. 4. The preponderance of the evidence is against a finding that the Veteran’s current diabetic retinopathy is secondary to a service connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307. 2. The criteria for entitlement to service connection for lower extremity neuropathy as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.310. 3. The criteria for entitlement to service connection for diabetic retinopathy as secondary to diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from September 1971 to August 1975. In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing has been associated with the record. Additional evidence received since the July 2018 videoconference hearing was submitted with a waiver of Agency of Original Jurisdiction (AOJ) review and has also been associated with the record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure The Veteran and his representative have asserted that service connection for diabetes mellitus is warranted based on alleged exposure to herbicide agents while the Veteran was working in laundry services while onboard the USS Oriskany and while the ship was stationed in Yankee Station. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that there was no exposure. 38 C.F.R. § 3.307(a)(6)(iii) (2017). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § (a)(6)(iii). 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. See, 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. If a veteran was exposed to an herbicide agent during active military service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113(2012) and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases include AL amyloidosis; chloracne or other acneform disease consistent with chlorachne; Type 2 diabetes; Hodgkin’s disease; ischemic heart disease; chronic B-cell leukemia’s; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancers; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma.) 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined a presumption of service connection is warranted. See, Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007). (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Board notes that the Veteran and his representative have not claimed that the Veteran stepped foot on the landmass of Vietnam. The Veteran’s service personnel records, the deck logs from the USS Oriskany from the applicable time period, and a May 2009 memorandum from the Joint Services Records Research Center (JSRRC) confirm that the Veteran did not step foot on the landmass of Vietnam. As the Veteran and his representative have asserted that the Veteran was exposed to herbicide agents while the Veteran was on the ship, the Board has considered whether the Veteran’s assigned ship, the USS Oriskany, traveled on inland in waters in Vietnam during the applicable period. However, the Oriskany, an aircraft carrier, was a deep water (or “blue water”) vessel. In order for the presumption exposure to be extended to a Blue Water Navy Veteran, there must be 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 and the Veteran went ashore, or other competent credible evidence that the Veteran went ashore. There is no such competent and credible evidence of record, as noted in the May 2009 JSRRC memorandum. In addition, with respect to the Veteran’s claim that he was exposed while working in laundry services aboard the ship, the May 2009 JSRRC memorandum further noted that there was no evidence of Navy ships transporting, using, storing, or testing any tactical herbicides and therefore, the JSRRC concluded that there was no evidence to support the Veteran’s claim of exposure to herbicide agents while serving aboard a Navy ship during the Vietnam era. The Veteran’s assertions that he came into contact with herbicide agents while serving in laundry services onboard the USS Oriskany are outweighed by the official military records concluding that there were no herbicide agents onboard Navy vessels during the period of the Veteran’s service. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange while in service and therefore, service connection on a presumptive basis for exposure to herbicide agents is not warranted. In coming to this conclusion, the Board has not overlooked the July 2002 Board decision cited to by the Veteran which found that the USS Oriskany was present in Yankee Station in the coastal waters offshore of Vietnam, and granted service connection on a presumptive basis. However, the Board notes that a prior Board decision pertaining to another Veteran in another case also cannot support a finding in another case unless the decision specifically addressed this particular Veteran’s case. McDowell v. Shinseki, 23 Vet. App. 207 (2009). The facts and findings in the prior Board decision cited by the Veteran pertain to the other Veteran’s case and not to the case at hand. While it appears that the excerpt from the prior Board decision indicates that another Veterans Law Judge accepted another Veteran’s assertion that the USS Oriskany was a “brown water” vessel at that time, since that decision, further guidance with respect to the classification of Navy ships during the Vietnam era has since been established. Accordingly, such a finding was based on the evidence related to that veteran’s service record and/or the other evidence in that veteran’s claims file, and based on the guidance available at the time for claims regarding herbicide exposure on Navy vessels. That decision does not provide any specific findings or evidence to verify the instant Veteran’s assertions in his appeal. As noted above, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation or on a presumptive basis for chronic conditions outlined in 38 C.F.R. § 3.309(a). In that regard, the Board notes that the Veteran has not asserted that his diabetes was incurred in-service or that it began one year following his discharge; but rather, that the condition did not manifest for many years after service. There is no competent or credible evidence suggesting that his diabetes is related to his service, to include exposure to herbicide agents. The Board notes that while the Veteran has not received a VA examination in connection with his claim, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the Veteran’s current diagnosis of diabetes mellitus and his active duty service, to include his service onboard the USS Oriskany and therefore, a VA examination is not required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Board acknowledges that the Veteran believes that his current diabetes mellitus is due alleged herbicide exposure, the Veteran is not competent to provide such an etiological opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2009). Accordingly, while the Board is sympathetic to the Veteran’s claim, the Board finds that the preponderance of the evidence is against the claim and therefore, service connection for diabetes mellitus is denied. 2. Entitlement to service connection for lower extremity neuropathy as secondary to diabetes mellitus 3. Entitlement to service connection for diabetic retinopathy as secondary to diabetes mellitus The Veteran and his representative assert that his lower extremity neuropathy and diabetic retinopathy are secondary to his diabetes mellitus. The Veteran does not contend that these conditions were incurred in-service, manifested to the requisite degree within one year of service separation, or that these conditions are otherwise related to the Veteran’s active duty service. While the Board is sympathetic to the Veteran’s claim that his lower extremity neuropathy and diabetic retinopathy are caused or aggravated by his diabetes mellitus, as outlined above, the Board has concluded that service connection is not warranted for diabetes mellitus and as there are no service-connected disabilities, the Veteran cannot be service connected on a secondary basis for lower extremity neuropathy and diabetic retinopathy. Therefore, service connection on a secondary basis must denied due to lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel