Citation Nr: 18104366 Decision Date: 05/22/18 Archive Date: 05/22/18 DOCKET NO. 15-07 832 DATE: May 22, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II (DMII), due to exposure to herbicide agents is granted. Entitlement to service connection for peripheral neuropathy, left lower extremity (LLE neuropathy), secondary to DMII is granted. Entitlement to service connection for peripheral neuropathy, right lower extremity (RLE neuropathy), secondary to DMII is granted. FINDINGS OF FACT 1. The Veteran had service in the offshore and inland waters of the Republic of Vietnam and is presumed to have been exposed to herbicide agents, to include Agent Orange. 2. DMII is a presumptive condition under the Agent Orange Act of 1991. 3. Bilateral peripheral neuropathy (BPN) has been linked by a medical professional to the Veteran’s DMII. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for DMII are met. 38 U.S.C. § 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). 2. The criteria for establishing service connection for LLE neuropathy are met. 38 U.S.C. § 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for establishing service connection for RLE neuropathy are met. 38 U.S.C. § 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1972 to December 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a Board videoconference hearing; a transcript of that hearing is of record. In April 2018, the Board issued a letter informing the Veteran that the Veterans Law Judge (VLJ) who presided over the July 2017 hearing was no longer with the Board. The letter advised the Veteran that he had the option to testify at a hearing before another VLJ who would decide the claim. 38 C.F.R. §§ 20.707, 20.717 (2017). The Veteran notified the Board that he did not want another hearing. See April 18, 2018, hearing related document. Thus, the Board will proceed with the appeal as to the above-referenced issue. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury where nexus evidence establishes a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154(b). This presumption may be rebutted only by clear and convincing evidence. Id. A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e), to include DMII, will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). A veteran is presumed to have been exposed to herbicide agents if he served in Republic of Vietnam between January 9, 1962, and 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). “Service in the Republic of Vietnam” includes service in the waters offshore if the condition of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA’s interpretation of § 3.307(a)(6)(iii) as requiring the veteran’s presence at some point on the landmass or the inland waters of Vietnam). 1. Entitlement to service connection for diabetes mellitus, type II (DMII), due to exposure to herbicide agents Veterans who served on Vietnam’s inland waterways are entitled to the presumption of service connection for certain herbicide diseases. See VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, 1.H.2.a (“Agent Orange aerial spraying occurred within the land boundaries and affected the inland waterways... [but] was not sprayed over RVN’s offshore waters.”). Inland waterways include “those rivers, canals, estuaries, delta areas, and interior or enclosed bays within the land boundaries of RVN itself.” Id. The record shows that “USS Lang (DE-1060): Docked to pier #4 in Da Nang Harbor for 38 minutes on January 5, 1972, Lang. (DE-1060) and sent a whaleboat to and from shore with “briefing personnel” on January 8, 1973. See March 25, 2013, SHARE Print Screens. The Veteran was a gunner while serving in Vietnam. He is a recipient of the Vietnam Service Medal with bronze star, for his service in direct support of combat forces in the Vietnam area of operations. The Veteran testified that his duties as a sharpshooter on the USS Lang placed him aboard the whaleboat on January 8, 1973. The Board finds that the Veteran’s testimony is competent, as he is capable of testifying to his own experiences, and credible, as it is consistent with the other evidence of record. It is therefore probative, and exposure to herbicide agents is conceded. The Veteran was diagnosed with DMII in 2009. Based on the evidence of record, the Board concludes that service connection is warranted for DMII. 2. Entitlement to service connection for BPN, secondary to DMII The Veteran has BPN as a result of his service-connected DMII. See April 2013 VA examination. A disease that is proximately due to or the result of a service connected disease shall be service-connected. 38 C.F.R. § 3.310(a) (emphasis added). Service connection for BPN is, therefore, warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel