Citation Nr: 1817260 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 11-28 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides. REPRESENTATION The Veteran represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran had active service from June 1968 to April 1972 and from July 1972 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2014 and April 2017, the Board remanded the appeal for additional development. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App 268 (1998). Since the prior remand and subsequent supplemental statement of the case (SSOC), the Veteran has submitted a statement and additional private treatment records have been obtained. While the Board recognizes this evidence, it will still proceed with adjudication. The Veteran's statements regarding the location of his service are duplicative of evidence already of record. Similarly, the treatment records show treatment of the Veteran's diabetes mellitus, type II, the diagnosis of which is not at issue. Because these documents would have no bearing on the ultimate outcome of the case, the Board does not find an additional SSOC to be needed prior to adjudication. 38 C.F.R. § 20.1304 (c). FINDINGS OF FACT The Veteran's currently diagnosed diabetes mellitus, type II is not related to his military service, to include exposure to herbicides. CONCLUSION OF LAW Entitlement to service connection for diabetes mellitus, type II, to include as related to herbicide exposure is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that the April 2017 remand sought to verify that the USS Lyman K. Swenson (DD 729) ported in Da Nang Harbor or sent any shore parties to Vietnam during February 16, 17, and 18, 1969. The specificity of this request was to supplement a May 2016 National Archives and Records Administration (NARA) report which included deck log review of the periods January 1-25, 1969, February 19 to March 16, 1969, and April 4-16, 1969. In January 2018 correspondence, the Veteran contested the three day review prescribed by the April 2017 remand as being unreasonably narrow. However, the Board directs the Veteran to the May 2016 NARA report, which notes the review of deck logs from January 1-25, 1969, February 19 to March 16, 1969, and April 4-16, 1969. The three days subsequently sought by the Board was in addition to this longer review. Therefore, an additional remand for additional development based on the Veteran's statement is not warranted. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the outset, the Board acknowledges that private treatment records contain a diabetes diagnosis; therefore, the first requirement of service connection is met. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303 (b) applies only to chronic disease as listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). "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 Gray v. McDonald, 27 Vet. App. 313, 319 (2015). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected, if the requirements of 38 C.F.R. § 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 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), ischemic heart disease (including coronary artery disease), all chronic B-cell leukemias, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). Thus, under 38 U.S.C. § 1116(a) a veteran who "served in the Republic of Vietnam" between January 1962, and May 1975, is presumed service-connected for certain conditions likely caused by exposure to Agent Orange, including type II diabetes mellitus, even if he cannot prove he was ever actually exposed to qualifying herbicide. 38 U.S.C. § 1116(a); see Gray v. McDonald, 27 Vet. App. 313, 319 (2015). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran seeks entitlement to service connection for diabetes mellitus, type II based upon exposure to herbicides. He contends that he served in the United States Navy and was attached to the USS Lyman K. Swenson in the western Pacific (Vietnam) from September 1968 to February or March 1969 and during that time the ship anchored in Da Nang Harbor for upkeep and maintenance. See November 2009 statement. The Veteran acknowledges that he did not put "boots on the ground" in Vietnam, but argues that anchorage within Da Nang Harbor should be considered an "inland waterway." See February 2011, Notice of Disagreement. He also argues that during the time the USS Lyman K. Swenson was moored to the buoy in Da Nang Harbor, it took on stores, ammunition, and was in the flight path of aircraft arriving and departing Da Nang airbase, and that all hands onboard handled the stores and ammunition. Id. The Veteran points to a number of prior Board decisions to support his contention that anchorage within Da Nang Harbor is defined as an "inland waterway." See February 2011, Notice of Disagreement. At the outset, the Board notes that although it strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. 38 C.F.R. § 20.1303. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. Id. In addition, the Board decisions cited by the Veteran all predate the United States Court of Appeals for Veterans Claims (Court) decision in the case of Gray v. McDonald, 27 Vet. App. 313 (2015). In that case, the Court found that VA's prior policy of where to draw the line between inland waterways and offshore waters was arbitrary and, thus, not entitled to deference because some harbors and bays were considered to be offshore waters, such as Da Nang, Vung Tau, or Cam Ranh Bay, while others were considered inland waterways, such as Quy Nhon Bay and Ganh Rai Bay. Subsequent to the Court's decision in Gray, VA updated its 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. VA Adjudication Manual M21-1 IV.ii.2.C.3.m. The record reflects attempts to verify the Veteran's service in Vietnam. A PIES February 2010 response confirms that the Veteran served aboard the USS Lyman K. Swenson (DD 729), which was in the official waters of Vietnam from January 1, 1969 to January 25, 1969, February 16, 1969 to March 16, 1969, and April 4, 1969 to April 16, 1969. However, this record provides no conclusive proof of in-country service. Later, an August 2014 VA memorandum provided a formal finding that there was a lack of information required to verify service in the Republic of Vietnam, or exposure to herbicides during military service. The memorandum noted review of the Veteran's disability claim, statements from the Veteran indicating his service on the USS Lyman K. Swenson and that he did not get off the ship, the February 2010 PIES response, and available service treatment records. A May 2016 correspondence from NARA noted review of the periods of January 1-25, 1969, February 19 to March 16, 1969, and April 4-16, 1969 in the 1969 deck logs of the USS Lyman K. Swenson, and found that the ship did not put into Da Nang during these periods. Based on the foregoing, the Board finds that the Veteran does not have service in the Republic of Vietnam for the purposes of establishing a presumption to herbicide exposure. The Veteran has never contended that he stepped ashore in Vietnam; indeed, he acknowledges that he never had "boots on the ground." His argument hinges on anchorage in the harbor of Da Nang. However, even if military records were to support the Veteran's contentions, VA policy post Gray indicates that service aboard a ship that anchored in Da Nang is not sufficient to establish presumptive exposure to herbicides, unless the evidence shows that the Veteran went ashore. The Board acknowledges the Veteran's statements that the USS Lyman K. Swenson took on stores, ammunition, and was in the flight path of aircraft arriving and departing Da Nang airbase, and that all hands onboard handled the stores and ammunition. 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). The Veteran's contentions regarding herbicide tainted items are insufficient for the Board to find herbicide exposure occurred. While it may be conceivable that the Veteran handled items from Vietnam that may have been in contact with herbicides, this is not the same type of risk for which the presumption of herbicide exposure was created. See, e.g., Haas v. Peake, 525 F.3d 1168, 1183 (Fed. Cir. 2008) (noting that the regulation was written as "to limit the presumptions of exposure and service connection to service members who had served, for some period at least, on land [in Vietnam]."). The Veteran was not in a position to know whether these items were contaminated with the designated herbicide agents. More importantly, his statements do not establish that there was actual exposure to herbicide. The Veteran's lay statements do not allege he actually saw nor had personal knowledge that the items he handled were in contact with herbicide agents, only that he believed exposure occurred. The Board finds that entitlement to service connection for diabetes mellitus, type II is not warranted on a presumptive basis. While post-service treatment records reveal a diagnosis, with the exception of the Veteran's reports, there is no indication in the claim file that the Veteran served in the Republic of Vietnam or was otherwise exposed to herbicides. Military records searches do not show that the Veteran was exposed to herbicides and the Veteran does not claim to having had "boots on the ground" in Vietnam. Thus, the Board finds that the Veteran did not have actual duty or visitation in the Republic of Vietnam and his assertion indicating that he was exposed to herbicide while in Vietnam cannot be found competent. Notwithstanding the foregoing, 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). In other words, the Veteran may nevertheless establish service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Again, in order to qualify under a direct theory of entitlement the Veteran must show (1) that he has a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between his present disability and the claimed in-service occurrence. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran meets the first requirement of service connection as his private treatment records show a present disability of diabetes. However, regarding the second requirement, the in-service event, the Veteran has pointed only to his service in Vietnam and the implication that he was exposed to herbicides. As discussed, the record does not show that the Veteran was exposed to herbicides. The Veteran has described potential exposure from stores, ammunition, and being in the flight path of aircraft arriving and departing Da Nang airbase, and that all hands onboard handled the stores and ammunition. While the Veteran's contentions regarding herbicide tainted items are insufficient for the Board to find herbicide exposure presumptively or directly occurred. As described above, the Veteran was not in a position to know whether these items were contaminated with the designated herbicide agents and his statements do not establish that there was actual exposure to herbicide. The Veteran's lay statements do not allege he actually saw nor had personal knowledge that the items he handled were in contact with herbicide agents, only that he believed exposure occurred. Finally, the Board notes that the Veteran's service treatment records do not show that he had diabetes mellitus, type II upon entry or separation from service. A June 1968 entry examination does not note that the Veteran suffers from diabetes and his endocrine system was reported to be normal and urinalysis was negative for sugar. A March 1972 examination and his March 1991 separation examination reported the same. Further, treatment records do not indicate that his diabetes manifested within one year of separation from service. Therefore, there is no evidence that the Veteran's current diabetes mellitus, type II is otherwise related to the Veteran's active service. The competent evidence does not show that the Veteran had an in-service event, such as herbicide exposure, that would have caused his diabetes, and there is no medical evidence indicating that the Veteran suffered from diabetes in service or within one year of separation. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. The claim for entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides, therefore, is denied. ORDER Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicides, is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs