Citation Nr: 1819447	
Decision Date: 04/03/18    Archive Date: 04/12/18

DOCKET NO.  14-23 914	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for type II diabetes mellitus (DM II), claimed as due to exposure to herbicide agents.


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife.


ATTORNEY FOR THE BOARD

Michael Wilson, Counsel
INTRODUCTION

The Veteran served on active duty from February 1969 to November 1969.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2011 rating decision  in which the RO denied service connection for DM II.  The Veteran filed a noticed of disagreement (NOD) in August 2012.  A statement of the case (SOC) was subsequently issued in April 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014.  

In February 2017, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.

In connection with the Board hearing, the Veteran submitted additional evidence.  However, as his substantive appeal was received after February 2, 2013, a waiver of initial RO consideration of this additional evidence is not required.  See 38 C.F.R. §§ 20.800, 20.1304 (2017); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154 , 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013).

Also, while the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.  All records have been reviewed.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  DM II is among the diseases for which VA's Secretary has recognized that there exists an etiological relationship with herbicide agent exposure.

3.  Although the Veteran had active Naval service during the Vietnam Era, there is no evidence showing that his assigned ship entered inland waterways of Vietnam, or that he otherwise served aboard any ship that entered inland waterways of Vietnam, or that he went ashore while his ship was anchored in the waters off of the coast of Vietnam, and he is not otherwise presumed to have been exposed to herbicide agents; there also is no evidence of actual in-service exposure to herbicide agents.

4.  DM II was not shown in service or for many years thereafter, and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between any currently diagnosed disability and the Veteran's military service.


CONCLUSION OF LAW

The criteria for service connection for DM II, claimed as due to exposure to herbicide agents, are not met.  38 U.S.C. §§ 1101, 1112, 1137, 5103, 5103A, 5107 (2012); 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126  includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 

After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g. Pelegrini v. Principi, 18 Vet App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159(b)). 

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

Fully compliant, VCAA-compliant notice was issued to the Veteran in January 2011.  The AOJ letter explained what information and evidence must be submitted by him, and what information and evidence would be obtained by VA.  Further, this letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records, and there are no outstanding requests to obtain any relevant private medical records for which the Veteran has both identified and authorized VA to obtain on his behalf.  Moreover, as explained in more detail below, although no examination or medical opinion has been obtained in connection with this claim, on these facts, no such examination or opinion in required.

Also of record and considered in connection with the appeal is the transcript of the Board hearing, along with various written statements by the Veteran included in his appellate submissions.  Specifically, as regards the February 2017 Board hearing, the Board notes that, during the hearing, the undersigned identified the issue on appeal.  Also, information was elicited regarding the Veteran's Naval service and the Veteran provided testimony regarding his claimed exposure to herbicide agents during service.  Although the undersigned did not explicitly suggest the submission of any specific, additional evidence with respect to this claim, nothing gave rise to the possibility, at the time of the hearing, or since, that there is any existing evidence pertinent to the claim on appeal outstanding.  Notably, the Veteran and his representative demonstrated knowledge of the evidence required to support the claim, and neither has identified any error in the conduct of the hearing.   The hearing was legally sufficient.  See 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided.  As such, there is no prejudice to the Veteran in the Board proceeding to decision on this claim, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


II.  Analysis

The Veteran contends that service connection for DMI II is warranted due to alleged exposure to herbicide agents during his Naval service in the waters off the coast and harbors of Vietnam.  

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

In order to establish service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Certain chronic diseases, including diabetes mellitus, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

With chronic disease shown as such in service (or within the presumptive period under § 3.307) 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 attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

The United States Court of Appeals for the Federal Circuit has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Specifically as regards claimed herbicide exposure, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicide agents (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6). 

Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including type II diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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.  38 C.F.R. § 3.309(e).  Thus, a presumption of service connection arises for these veterans (presumed exposed to herbicide agent) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide agent exposure, who develops one of the enumerated diseases.

Under the applicable law discussed above, "service in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii) includes service in the inland waters of Vietnam.  See Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008).  However, service in the "blue waters" off the coast of the Republic of Vietnam does not constitute the required Republic of Vietnam service under 38 C.F.R. § 3.307(a)(6)(iii).  Id.  

VA General Counsel has further elaborated that service in the Republic of Vietnam requires that an individual actually have been present within the boundaries of the Republic.  See VAOPGCPREC 27-97.  Specifically, to establish qualifying service in Vietnam, a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam.  Service on a deep water naval vessel in waters off the shore of the Republic of Vietnam, without proof of actual duty or visitation ashore, does not constitute Vietnam service for purposes of 38 U.S.C.A. § 101(29)(A).  See VAOPGCPREC 27-97; Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

Historically, the Veterans Benefits Administration has extended the herbicide agent exposure presumption to naval ships which entered Vietnam's inland waterways or those that docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships).  See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated January 2, 2018), M21-1, pt. IV, subpt. ii, ch. 1, sec. H.2.

In Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA's interpretation excluding certain bays and harbors, including Da Nang Harbor, from the regulatory definition of inland waterways was arbitrary and capricious.  VA has since revised its policy to clarify that certain bays and harbors identified by VA may qualify as inland waterways.  VA's policy states that inland waterways include the rivers, canals, estuaries, delta areas, and enclosed bays of Vietnam, but do not include open deep-water harbors, such as those at Da Nang, Nha Trang, Qui Nhon, Cam Ranh, Vung Tau, and Ganh Rai.  VA has determined that these harbors are not inland waterways because they are open to the sea with extensive entry distance for easy access; they are not connected to a major inland river; they are not long or narrow; they have a deep water channel for easy ship anchorages, and they have no historical evidence of extensive Agent Orange aerial spraying. M21-1, Part IV, Subpt. ii.1.H.2.  VA also established the list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, detailing known ships that traveled on inland waterways, docked to piers or the shore of Vietnam, or operated on close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller craft from the ship delivered supplies or troops from the ship to shore.  

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990)

Turning to the facts of this case, the record clearly shows that, through the course of VA treatment, the Veteran was diagnosed with DM II in January 2010.  Hence, the current disability requirement for service connection is met.  The remaining questions, however, are whether the disability was incurred in service, may be presumed to have been incurred in service, or is otherwise medically related to in-service injury or disease. 

First addressing the Veteran's alleged in-service exposure to herbicide agents, according to his service personnel records (SPRs), he served in the United States Navy from February 1969 to November 1969.  He completed a tour of more than five months aboard the USS Graffias.  Although the Veteran clearly served during the Vietnam Era, there is no indication that he had Vietnam service within the meaning of 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6), warranting a presumption of exposure herbicide agents.  

In March 2011, the National Personnel Records Center (NPRC) provided that the USS Graffias was in official waters of the Republic of Vietnam from June 28, 1969 to July 1, 1969, from July 4, 1969 to July 13, 1969, and from August 2, 1969 to August 8, 1969.  The NPRC further indicated, however, that the record provided no conclusive proof of in-country service. 

The Board has additionally reviewed deck logs from the USS Graffias that were obtained and attached to the claims file.  The deck log history dated from July 1, through July 30, 1969, reflects that the ship anchored in the waters off the coast of Vietnam, including at An Thoi and at Da Nang Harbor.  Evidence also indicates that the ship was at Vung Tau, and Cam Ranh Bays.  The record does not reflect, however, that the ship entered any inland waterways in Vietnam.  

While the list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents includes a notation indicating that the USS Graffias was docked to a pier at Da Nang for resupply, and conducted other in-port replenishments at An Thoi and Vung Tau, the corresponding dates of these events all occurred in 1967, prior to the Veteran's service aboard the ship.  Regardless, as the list clearly reiterates, such docking to shore or pier in the waters of Vietnam only establishes a likelihood that crewmembers had the opportunity to go ashore for a work detail or for liberty leave, and requires at least lay evidence that a veteran went ashore.  As it stands, eligibility for the presumption of Agent Orange exposure, under 38 CFR § 3.307(a)(6)(iii), still requires that a Veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975, and 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.

Here, the evidence does not reflect that the Veteran had in-country service, nor has he actually asserted such service.  Rather, the Veteran credibly testified that he did not go ashore while his ship toured the waters of Vietnam.  His contentions have alternatively focused on exposure to herbicides as a result of his ship's close proximity to Vietnam in the offshore waters, including at Da Nang Harbor, where he contends that the waters were contaminated with dioxins and other by-products of herbicides.  He presented evidence contending that a major air base for an herbicide spraying project was located less than one mile from the edge of Da Nang Harbor, and that as a result vast amounts of dilute and undiluted herbicides, along with other contaminants, likely entered the harbor waters at Da Nang.  

The Veteran additionally provided evidence and the record also indicated that his ship, the USS Graffias, a supply ship, anchored next to several ships that had confirmed service in the inland waterways of Vietnam.  He did not, however, contend that he served aboard any of these ships during their inland waterway voyages, or that he even set foot aboard these ships. 

Given the foregoing, the Veteran's exposure to herbicide agents cannot be confirmed by the evidence of record; and, as the laws and regulations stand with respect to Vietnam service, the presumption of herbicide agent exposure cannot be extended to a veteran with service on ships operating only in the open waters of Vietnam, without evidence that such veteran actually went ashore.  Such evidence is notably absent in this case.  

While the Board is sympathetic to the Veteran's contentions that he was likely exposed to herbicide agents as a result of such agents washing into the waters, including at Da Nang Harbor, off the coast of Vietnam, any such likelihood of contamination is not contemplated by relevant laws and regulations in determining presumed exposure, and based on the record, any evidence of such likely contamination of bay waters is insufficient to establish that the Veteran had actual  herbicide agent exposure.  

As, on these facts, neither presumed nor actual in-service exposure to herbicide agents, to include Agent Orange, is warranted or shown, the Board has also considered the claim for service connection for DM II under other theories of entitlement.  The Board also finds, however, that no other legal theory provides a basis for an award of service connection for this disability at issue.

Notably, the Veteran's service treatment records reflect no complaint, finding, or diagnosis pertinent to DM II, and no abnormalities referable to any such condition were noted in the October 1969 service discharge examination report.  The Veteran has not contended that his DM II was present during service.  Moreover, the medical evidence of record does not document evidence of DM II prior to January 2010, which is clearly well beyond the period for establishing service connection for diabetes mellitus as a chronic disease on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.  Further, the absence of  any evidence (or even lay assertions) of symptoms during service which have continued to the present day preponderates against awarding service connection on the basis of chronicity and continuity of symptomatology.  See 38 C.F.R. § 3.303(b); see also Walker, supra.

Notwithstanding the foregoing, 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.  See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  As already noted, however, the Veteran has not indicated any other basis for linking his DM II to service other than the purported herbicide agent exposure, nor is such otherwise indicated by the record; and, the evidence shows that DM II was not diagnosed until January 2010, many years after the Veteran's separation from service.  

Furthermore, there is no medical evidence or opinion whatsoever even suggesting that there exists a medical nexus between current DM II and service, and, on these facts, further medical development of the claim to obtain such an opinion is not required.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  While the Veteran has a current diagnosis of DM II, there is no competent, persuasive evidence to indicate that such disability may be associated with an event, injury, or disease in service.  As such, there is no basis for any further development of the claim, to include arranging for the Veteran to undergo VA examination, or otherwise obtaining a medical opinion in connection with this claim. 

VA will provide a medical examination or obtain a medical opinion if the evidence indicates that the existence of a current disability or persistent or current symptoms of a disability that may be associated with an event, injury, or disease in service but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017);  McLendon, 20 Vet. App. at 83.

As indicated above, presumed or actual in-service exposure to herbicides has not been established, and there is otherwise no evidence or argument as to in-service injury or disease relevant to this claim.  The Board points out that, in the absence of competent, credible evidence of an in-service injury or disease to which the currently claimed disability may be related, a remand of this claim for an examination or to otherwise obtain an opinion as to the etiology of DM II would, in essence, place the examining physician in the role of a fact finder, which is the Board's responsibility.  In other words, any medical opinion which provided a nexus between the Veteran's current disability and service would necessarily be based solely on the Veteran's currently uncorroborated assertions that he was exposed to herbicide agents during service that was advanced in support of his claim.  However, a medical opinion premised on an unsubstantiated account of a claimant has no probative value.  See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised on an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on a claimant recitations that have previously been rejected).

Simply stated, arranging for the Veteran to undergo a VA examination or otherwise obtaining a medical opinion under the circumstances presented here would be a useless act.  The duty to assist is not invoked where "no reasonable possibility exists that such would aid in substantiating the claim."  See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  See also 38 U.S.C. § 5103 (a)(2).  Therefore, VA has no obligation to obtain any medical opinion commenting upon the etiology of current DM II.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83. 

Finally, to whatever attempt the Veteran purports to establish the relationship between his current DM II and service on the basis of his own lay assertions, such attempt must fail.  In this regard, the Board emphasizes that the matter of the etiology of the disability at issue is one within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994).  Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of the etiology of DM II is a complex medical matter that falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  As the Veteran is not shown to have the training and expertise to competently establish his own in-service herbicide agent exposure, or to opine as to the etiology of current DM II, his lay assertions in this regard have no probative value.  

For all the forgoing reasons, the Board must conclude that there is no reasonable basis for finding that the Veteran's claimed DM II was incurred in, may be presumed to have been incurred in, or is otherwise the result of his active service; hence, the claim for service connection for DM II must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as no competent, credible and probative evidence supports the in-service injury or disease and medical nexus requirements of the service connection claim, that doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 


ORDER

Service connection for type II diabetes mellitus is denied.  




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs