Citation Nr: 18141051 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-21 826 DATE: October 9, 2018 ORDER Service connection for ischemic heart disease, as due to herbicide agent exposure, is granted. Service connection for diabetes mellitus, type II, as due to herbicide agent exposure, is granted. Service connection for right upper extremity peripheral neuropathy is granted. Service connection for left upper extremity peripheral neuropathy is granted. Service connection for left lower extremity peripheral neuropathy is granted. Service connection for right lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran stepped on the landmass of the Republic of Vietnam while aboard the USS HALEAKALA during its visit to Vietnam; therefore, exposure to herbicide agents is presumed. 2. The Veteran has a diagnosis of ischemic heart disease, which is presumed related to his herbicide agent exposure during his active military service in Vietnam. 3. The Veteran has a diagnosis of diabetes mellitus, type II, which is presumed related to his herbicide agent exposure during his active military service in Vietnam. 4. The competent and probative evidence shows the Veteran has peripheral neuropathy of the bilateral extremities proximately due to his now service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, type II, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetic neuropathy of the upper and lower bilateral extremities have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from November 1968 to September 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). Service incurrence for certain diseases, including ischemic heart disease and type II diabetes, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. “Service in Vietnam” means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or 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 generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding that VA’s requirement that a veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam). In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. §3.3.07 (a)(6)(iii), the service member must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. VA guidance indicates that in order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy Veteran, development must provide evidence that his ship operated temporarily on the inland waterways of Vietnam or that the veteran’s ship docked to the shore or a pier. In claims based on docking, a lay statement that the Veteran personally went ashore must be provided. Although evidence that a veteran’s ship docked, along with a statement of going ashore, is sufficient for the presumption of herbicide exposure, service aboard a ship that anchored temporarily in an open deep-water harbor or port has generally not been considered sufficient. The United States Court of Appeals for Veterans Claims (Court) determined that VA’s interpretation of 38 C.F.R. § 3.307 (a)(6)(iii), designating Da Nang Harbor as an offshore, rather than an inland waterway was inconsistent with the purpose of the regulation and did not reflect the VA’s fair and considered judgment. Gray v. McDonald, 27 Vet. App. 313 (2015). In particular, the Court could not discern any reason as to why, in VA’s determination, certain bodies of water such as Quy Nhon Bay and Ganh Rai Bay, were brown water, but Vung Tau Harbor, Da Nang Harbor, and Cam Ranh Bay, were blue water. Subsequent to the Court’s decision in Gray v. McDonald, VA updated its guidance/policy to state that service aboard a ship that anchored in a deep-water costal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the Republic of Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. 3.308 (a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e). Service in Vietnam The Veteran asserts that he was exposed to herbicides while he was aboard the USS HALEAKALA. Initially, the Board notes that JSRRC and DPRIS have both been unable to verify whether the USS HALEAKALA was in inland waterways in Vietnam. However, the Board finds that the competent and probative evidence is at least in equipoise that the Veteran had service in Vietnam for presumptive herbicide exposure. The Board finds that the Veteran stepped on the landmass of Vietnam during his service aboard the USS HALEAKALA. It has been determined that the Veteran’s ship, the USS HALEAKALA, was in official waters of Vietnam from August 27, 1969 through August 29, 1969. Evidence shows the USS HALEAKALA was in Vietnam’s close coastal waters due to a boiler accident, and it was in the category of ships operating on Vietnam’s close coastal waters for extended periods with evidence that crew members went ashore as part of the list of ships associated with Naval and/or Coast Guard service in Vietnam and Exposure to herbicide agents, which was last updated on September 4, 2018. The Veteran’s military personnel records show that he was aboard the USS HALEAKALA during this time. He has asserted that he went ashore, such as being on the pier. Moreover, the USS HALEAKALA has documented service in the official waters of Vietnam while the Veteran was aboard. Although the JSSRC and DPRIS were unable to verify the Veteran’s service in Vietnam, the Board finds that when resolving reasonable doubt in favor of the Veteran, that the evidence is at least in equipoise and as such, he is entitled to presumptive herbicide exposure. 1. Entitlement to service connection for ischemic heart disease, as due to herbicide exposure. The Veteran asserts that his ischemic heart disease is due to his herbicide exposure. The Veteran has a diagnosis of ischemic heart disease per a December 2013 VA examination report. As noted above, the Veteran is entitled to the presumptive herbicide exposure. Ischemic heart disease is a presumptive disease based on exposure to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, service connection for ischemic heart disease is warranted. 2. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure. The Veteran asserts that his diabetes mellitus, type II, is due to his herbicide exposure. The Veteran has a diagnosis of diabetes mellitus, type II per the December 2013 VA examination report. As noted above, the Veteran is presumed exposed to herbicide agents. Diabetes mellitus, type II, is presumptive disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, service connection for diabetes mellitus, type II, is warranted. 3. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy. The Veteran asserts service connection for bilateral upper and lower extremity peripheral neuropathy. Initially, the Board notes that he as a diagnosis of bilateral upper and lower extremity peripheral neuropathy per the December 2013 VA examination report. This examination report and private treatment reports of record indicates that the Veteran has diabetic peripheral neuropathy and associated symptoms. The Board also notes that there is no probative evidence that suggests the Veteran’s bilateral upper and lower extremity peripheral neuropathy is due to another disease or injury that is not service connected. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that he has neurological disabilities in his bilateral upper and lower extremities, to include diabetic neuropathy as proximately due to his now service-connected diabetes mellitus, type II. Accordingly, service connection is granted for peripheral neuropathy of the bilateral upper and lower extremities. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel