Citation Nr: 1815541 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-11 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1969 and December 1972 to October 1989 in the United States Navy, and received the Combat Action Award. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2015, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In November 2016, the Veteran cancelled his hearing before the Board. There is no hearing request presently pending. FINDING OF FACT The Veteran was not exposed to herbicide agents during service, diabetes mellitus is not attributable to service, and the condition was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In reaching the decision below, the Board considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The law also provides that the Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases, including diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Veteran has current diabetes mellitus, documented, for example, in a June 2013 VA treatment record. On both his January 1966 and January 1972 service entrance examinations, no abnormalities of the endocrine system were found, and the Veteran's sugar tests were negative. He voiced no pertinent complaints on the accompanying Reports of Medical History. Service treatment records (STRs) generated during service do not show diagnoses, complaints, or treatment pertaining to diabetes, including on service examinations conducted during service . On both his September 1969 and October 1989 separation examinations, there were no abnormalities of the endocrine system, and the sugar tests were negative. The Veteran did not voice any complaints pertinent to diabetes on his accompanying Reports of Medical History. There were no records showing complaints or treatment for diabetes within one year of discharge from service. Post-service medical records from 1999 onward are of record and have been reviewed. These records show that diabetes was first documented in 2006. The Veteran reports that his diabetes is related to herbicide agent exposure during service. He reports that while stationed on the USS Hoel from March to May 1968, he had various duties that required him to go ashore. These duties included tending lines on shore, taking draft readings from ships, and completing morning reports. In support, he provided photographs of himself as a member of the Repair Division. He also reports that he went ashore in September 1966 during a search and rescue mission. He further asserts that his receipt of the Vietnam Service Medal and Republic of Vietnam Campaign Medal establish his Vietnam service. Eligibility for the presumption of Agent Orange exposure requires that a Veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975. 38 CFR § 3.307 (a)(6). This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam. However, this does not include service aboard a large ocean-going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore. Inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam. They do not include open, deep-water harbors. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. With regard to the Veteran's receipt of Vietnam medals, the M21-1 Adjudication Procedures Manual (M21-1) states that receipt of the Vietnam Service Medal and Vietnam Campaign Medal does not constitute proof of Republic of Vietnam (RVN) service for the purpose of establishing herbicide agent exposure. M21-1.IV.ii.1.H.1.g. The Vietnam Service Medal was given to service members who were stationed on ships offshore or flew high altitude missions over the RVN as well as those who served in Thailand. The Republic of Vietnam Campaign Medal was awarded by the Government of the Republic of Vietnam, to both personnel in the Republic of Vietnam and personnel "outside the geographical limits of the Republic of Vietnam." See Army Regulation 600-8-22, "Military Awards" (25 June 2015). Thus, these awards cannot service as evidence of physically serving in Vietnam. A document compiled by VA entitled "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," contains a list of ships that operated primarily or temporarily on Vietnam's inland waterways, ships that docked to the shore or pier in Vietnam, and ships that operated on Vietnam's close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. https://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (updated January 1, 2018) (last accessed March 2, 2018). The USS Hoel is not among the ships listed. On review of the Veteran's personnel records, the Board notes that he also served on the USS Samuel Gompers and the USS Power. The USS Samuel Gompers is included in the list of ships that docked to the shore or pier in Vietnam, but only during April 1972; the Veteran's personnel records show he served on this ship in 1969. Similarly, the USS Powers is included on the list of ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, but only in November 1968; the Veteran served on the USS Powers after 1970. Personnel records show that the Veteran was assigned to the USS Hoel from May 1966 to September 1968, and March 1969 to August 1969. The RO contacted the Joint Service Records Research Center (JSRRC) three times in an effort to corroborate the Veteran's reports of his onshore duties in Vietnam via the USS Hoel. All responses from the JSRRC were negative. In April 2016, the JSRRC provided a history of the USS Hoel, including a review deck logs, and determined that there was no documentation that the ship docked or transited inland waters, or that ship personnel stepped foot in Vietnam. In May 2016, the JSRRC again investigated the Veteran's reports of going ashore and provided a history of the ship's movements, but determined that the history and deck logs did not record any personnel going ashore in Vietnam. In June 2016, the JSRRC reported that the ship's history reports did not indicate search and rescue missions during the time frame reported by the Veteran. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. Initially, the preponderance of the evidence is against a finding of exposure to herbicide agents in service. In addition to the lack of documentation of Vietnam service in the Veteran's DD Forms 214, personnel records, and STRs, the research conducted by the JSRRC did not corroborate exposure, and his assigned ships are not included among those listed in the publication, "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents." The Veteran's assertions are admissible evidence, and the Board recognizes that his recollections are genuine. However, when weighed against detailed research and consideration of unit records, the Board finds that the preponderance of the evidence shows he did not have qualifying service in Vietnam. Thus, exposure to herbicide agents cannot be presumed, and without evidence otherwise showing that he was so-exposed, service connection for diabetes mellitus cannot be granted on a presumptive basis. The probative evidence also does not show that the Veteran's diabetes is directly related to his active military service. The disorder was not found in service or within one year of separation from service; rather, the evidence reflects that the disorder was not shown until many years after service discharge in 2006. There were no reports related to diabetes at discharge and diabetes was not found upon his service discharge examinations. The fact that he sought treatment for other conditions after service, but not diabetes, weighs against the credibility of any statements that the disorder persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The record does not include an opinion on the matter of service connection. However, in addition to the lack of credible lay or medical evidence showing that diabetes was incurred during service, the evidence does not link the disorder to service. As there were no relevant complaints, treatment, or diagnoses in service, there is no injury, disease, or event to which a current disorder could be related. The standards of McLendon v. Nicholson, 20 Vet. App. 79 (2006) are not met here. Consequently, VA is under no duty to obtain a medical opinion addressing direct service connection. The Board has considered the Veteran's lay contentions regarding the etiology of his diabetes. However, the Board finds that, under the facts of this case that include no continuous post-service symptoms, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as diabetes. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). Diabetes is a medically complex disease processes because of its multiple etiologies, requires specialized testing to diagnose, and manifests symptomatology that overlaps with other disorders. The etiology of the Veteran's current diabetes mellitus is a complex medical etiological question involving internal and unseen system processes, some of which are unobservable by the Veteran, especially in the context of this case where the weight of the evidence demonstrates no symptoms for years after service, and shows denial of such symptoms at service separation. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran's claim for service connection for diabetes, that doctrine is not applicable to the claim ORDER Service connection for diabetes is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs