Citation Nr: 1815424 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-14 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a lumbar spine disorder, to include arthritis and degenerative disc disease (DDD). 3. Entitlement to service connection for asbestosis and chronic obstructive pulmonary disease (COPD), claimed as residuals of asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the Navy from January 1966 to December 1968. His DD 214 reflects that he had over 2 years of foreign or sea service. The civilian equivalent of his military occupational specialty, as listed on his DD 214, was a fireman. His military decorations include the Vietnam Campaign Medal, the Navy Unit Commendation Medal, and the Vietnam Service Medal with one Bronze Star. He served aboard the U.S.S. Kitty Hawk. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran's testimony before the undersigned Veterans Law Judge (VLJ) at a January 2017 videoconference is of record. At the hearing the Veteran clarified, as he had in his VA Form 9, Appeal to the Board, that he was claiming that inservice asbestos exposure caused asbestosis and his currently diagnosed chronic obstructive pulmonary disease (COPD). Accordingly, this issue has been recharacterized as stated on the title page to reflect this. This appeal was processed using the Veterans Benefits Management System (VBMS) and, in addition there is a Legacy (formerly Virtual VA) paperless claims electronic file. Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. The issues of service connection for asbestosis and COPD, claimed as residuals of asbestos exposure, being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran served on the USS Kitty Hawk but he did not have service in the inland waterways of Vietnam and was never in Vietnam, and he was not exposed to herbicides. 2. Diabetes mellitus first manifested decades after military service and is unrelated to any incident or event during service. 3. The Veteran sustained two injuries to his back during service and because credible evidence shows that he has continuously had symptomatology his chronic lumbar spine disorder, to include arthritis and DDD is of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a lumbar spine disorder, to include arthritis and DDD, are met. 38 U.S.C.A. §§ 1110. 1112, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. VA's duty to notify was satisfied by a July 20, 2011 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to the duty to assist, the Veteran's service treatment records (STRs) and service personnel records are on file. A transcript of his testimony before the undersigned VLJ is of record. At the videoconference the Veteran reported that he had been unable to obtain some of his postservice private treatment records. He also testified that he had sought treatment three or four times at a VA facility in Long Beach, California in about 1970 but a search had not found any records of such treatment. Of record is an October 2011 report from the VA Long Beach Healthcare system that there was no registration card found for the Veteran and without this no records could be located. The Veteran has been provided VA examinations with respect to all three service connection claims. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (duty to assist a hearings). Background A response to information requested on July 26, 2011, shows that the USS Kitty Hawk, CVA-63, was in the official waters of the Republic of Vietnam from December 2, 1966 to January 3, 1967, and from January 17, 1967 to February 14, 1967. Service records show that the Veteran served on the USS Kitty Hawk from August 1966 to December 1968. In June 1967 the Veteran was to have X-rays evaluated. He had good motion and was to continue with exercises. In January 1968 the Veteran complained of pain on the right side of his back at the thoracic level. He had a history of heavy lifting, at which time he had hurt his back. The assessment was a back strain, for which he was to do exercises and do no heavy lifting for 2 days. The December 1968 examination for service discharge was negative for any pertinent disability. An Initial Occupational History and Respiratory Symptom Questionnaire of May 1979 reflects a written history of the Veteran's inservice and postservice work history. It was reported that from January 1966 to December 1968 (during service) he had removed asbestos lagging from pipes and steam lines, and had been exposed to solvents. It was also noted that he had smoked one pack of cigarettes a day for 15 years. On file are postservice records (apparently related to the Veteran's postservice employment at a Naval Shipyard) which reflect that in May 1979, based on a review of the Veteran's occupational history it was determined that there had been probable exposure to airborne asbestos fibers at or above the medical surveillance action level had occurred or may reasonably occur, as a result of which the Veteran was formally placed in the "Asbestos Medical Surveillance Program" (AMSP), the records of which were to be retained for 50 years. A September 1979 Respiratory Disease History and Physical Examination, as part of the AMSP, was negative for any respiratory symptoms. The Veteran reported not having had any chest or lung disease. These records also show that in January 1980 he was a machinist, and there was a diagnosis of bronchitis. In August 1979 and August 1980 he was given pulmonary function tests. In September 1980 he was advised to stop his 16 year history of smoking one pack of cigarettes daily, and was advised of the risks of smoking. A May 2000 record of the Alabama Clinic shows that the Veteran related having had back problems for at least 30 years, with recurring episodes. He had developed some numbness extending into the lateral aspect of a leg, which had become more prominent in the last month. An MRI revealed degenerative changes at S1 with grade I spondylolisthesis, and there was neural foraminal narrowing at L5-S1. The impression was spondylolisthesis with probable spondylosis at S1 with neural foraminal impingement at L5-S1 on the right. It was indicated that lumbar fusion might ultimately be needed. The Veteran was treated for back problems in 2001 at SportsMed. An April 2003 record of the Orthopedic Center reflects that the Veteran related having had problems with his back for at least 3 or 4 years. X-rays revealed grade 1 spondylolisthesis of "L6" on S1. A March 2003 lumbar MRI indicated some facet arthrosis at L5-S1, and significant disc space collapse. The impressions were spondylolisthesis L5-S1, and foraminal stenosis at L5-S1. A July 2009 record of the Regional Spine and Wrist Centers, LLC, reflects an assessment of lumbar DDD and sciatica on the left, and spondylolisthesis at L5-S1. Lumbar decompression therapy was recommended. The Veteran filed his initial VA claim for service connection for residuals of a back injury, asbestosis, and diabetes in May 2011. In an August 2011 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that on the USS Kitty Hawk he was exposed to various chemicals and asbestos dust on numerous occasions. There was no military or civilian asbestos exposure surveillance program by the Navy until the late 1970s or early 1980s. Prior to his active duty he had no asbestos exposure and limited chemical exposure. After service, from 1969 to 1979, as an apprentice machinist and plumber, and machinist he had limited exposure to chemicals and very limited to no exposure to asbestos. Since1980 he had worked in an office environment with no chemical or asbestos exposure. He had stopped smoking in about 1996. In another August 2011 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that he was treated in February 1967 on the USS Kitty Hawk for a back injury, when he had X-rays and was given anti-inflammatory medicine and placed on light duty. He again hurt his back in January 1968 lifting rockets and received the same type of treatment. He had been treated at the Long Beach VA Health Care Walk-In outpatient clinic for back problems numerous times and was given anti-inflammatory medicine, and hot and cold packs, but when seeking these records he had been told there were no records of such treatment. On VA orthopedic examination in November 2011 the Veteran's records were reviewed and the diagnosis was lumbar DDD, and it was noted that this had been diagnosed in 2000. His history was that he had injured his back during service in 1967 putting ammunition and bombs in airplanes, and it fell on him. He reported having had problems, off and on, since then, and now had daily and chronic pain that radiated down the right leg and was beginning to go down the left leg. On physical examination he had limited and painful thoracolumbar motion. It was reported that he had mild radiculopathy of the right leg. He had intervertebral disc syndrome (IVDS). It was reported that imaging studies had not documented thoracolumbar arthritis, although a May 2000 MRI had found degenerative changes at L5-S1 and grade 1 spondylolisthesis. A chest X-ray revealed degenerative changes seen predominantly in the mid and lower thoracolumbar spine. The examiner stated that the claimed condition was less likely than not incurred in or caused by an inservice injury because the medical records were silent for treatment of a back condition and there were no records until March 2000, when he was seen for low back pain. He had been seen 34 years earlier for a complained of pain in the thoracic region, i.e., the upper back and not the lower back. Thus, it was less likely as not that his lumbar condition was due to the upper back (thoracic) strain for which he had been seen in January 1968, 34 years earlier and which was self-limiting and not a chronic condition. It was noted that X-rays in 2000 revealed degenerative changes and spondylolisthesis at L5-S1, and a March 2003 MRI revealed facet arthrosis at L5-S1 and disc space collapse. On VA respiratory examination in November 2011 the Veteran's records were reviewed and it was reported that the Veteran did not have a diagnosed respiratory condition. It was reported that from 1966 to 1968 he had been exposed to asbestos as a machinist mate in the Navy. Also, a clinical note of May 31, 1979, stated that based on a review of occupational history there was probable exposure to asbestos, and the Veteran was formally placed in an asbestos medical surveillance program. However, he had not been diagnosed with any respiratory condition. He did not have asthma or any other pulmonary condition. A chest X-ray revealed minimal posterior basal atelectasis with no focal lung consolidation or large effusions or pneumothorax. There were no pleural plaques or calcifications. There were degenerative changes seen predominantly in the mid and lower thoracolumbar spine. In an October 9, 2011 letter the Veteran was informed that if he was on a US Navy vessel in the offshore "blue waters" of Vietnam his herbicide exposure would be presumed if his service included duty or visitation within Vietnam or the inland waterways between January 9, 1962, and May 7, 1975. Evidence was needed that his ship entered the Vietnam inland waterways or he went ashore while his ship was docked or at anchorage. He was requested to provide such information. In VA Form 21-4138, Statement in Support of Claim, dated October 25, 2011, the Veteran reported that he had served on the USS Kitty Hawk offshore from the Republic of Vietnam and did not go ashore and was not in the inland waterways. On VA examination in November 2011 the diagnosis was impaired fasting glucose. This had been diagnosed in 2010. It was reported that he did not meet the criteria for a diagnosis of diabetes. He did not have any diabetic peripheral neuropathy, as a complication of diabetes. His laboratory results as to glucose and "A1c" in 2010 and 2011 were reported and it was stated that he did not meet the criteria for diabetes. Records in February 2012 from ChestMed, P.C., show that the Veteran had exertional dyspnea and was given pulmonary function testing. The records do not reflect any respiratory diagnosis. A printed report of VA pulmonary function testing in August 2012 shows that the Veteran had moderately severe airway obstruction. There was a handwritten notation of "result of COPD [chronic obstructive pulmonary disease]." In correspondence in September 2012 the Veteran reported that he was being treated with medication by VA for COPD which caused moderately severe airway obstruction. A December 2012 sworn statement from A.N. reflects that she had transported the Veteran several times in 1969 and 1970 to and from the Long Beach VA Healthcare center of outpatient treatment for a "service connected back injury." In a 2012 statement the Veteran reported that he had not filed a claim earlier for a low back disorder because he had not been able to obtain his service records from the National Personnel Records Center in St. Louis. He had tried to obtain such records for 40 years but only received a few pages at a time, which did not include records of his back injury, which he had only recently received with the help of a Veterans Service Organization. He had been unable to obtain private clinical records prior to 2000 because the private clinical sources had not maintained records prior to that time. Also, he had sustained two injuries during service, and both were to the right side of his back, and private records showed that his low back problem affected the right side of his back. Received on March 15, 2013 was an undated letter from C. M., D.O., stating that the Veteran had been diagnosed with diabetes, type II, and was to begin treatment with Metformin. In March 2014 the Veteran's spouse stated that she had transported the Veteran several times in 1969 and 1970 to and from the Long Beach VA Healthcare center of outpatient treatment and he had continuously had problems with back pain from 1968 to the present due to "service connected injury." VA outpatient treatment (VAOPT) records show that in 2015 the Veteran had diabetic neuropathy. At the videoconference the Veteran testified that he believed that he was exposed to herbicides while aboard the USS Kitty Hawk because herbicides had been washed out from Vietnam to the sea and his ship took onboard that water for cleaning clothes, personal washing, and drinking. His ship had been close enough to Vietnam that planes were launched close to shore and recovered, and he had received combat pay and hazardous duty pay. However, when questioned directly, the Veteran did not state that his ship, the USS Kitty Hawk, had ever docked at a Vietnamese port or laid anchor in a Vietnamese port. As to the claimed diabetes, the Veteran testified that his VA physician at Huntsville, Alabama, had told him that he had an elevated reading and he had been diagnosed as having diabetes, for which he had been given medication by VA. The Veteran also testified that he had been given special diabetic shoes by VA because he had developed diabetic peripheral neuropathy. He also testified that he had trouble with his hands. As to his claimed low back disability, at the videoconference the Veteran testified that while aboard the USS Kitty Hawk a 250 or 300 pound bomb fell on him, pinning him to the deck and the tie down of the airplanes hit him in the back. He was taken to sick bay and was off work for 3 or 4 days. He later sprained his back lifting ammunition or bombs out of crates, following which he again sought treatment but a treating corpsman only applied heat. There was no hospital on his ship. He had had problems with his back ever since then. He had sought treatment three or four times at a VA facility in Long Beach, California in about 1970 but a search had not found any records of such treatment. The Veteran testified that he had such bad experiences when he sought VA treatment in about 1970 that thereafter he received private treatment from a series of private physicians. He had attempted to obtain records of his private treatment but some of the physicians had not kept old records. Subsequently, he had again sought VA treatment and had been given pain relievers, a back brace, and a cane. After service he had a desk job with Lockheed-Martin. At the videoconference the Veteran and his representative stated that the Veteran was seeking service connection for asbestosis and COPD [as was stated in his 2014 VA Form 9]. Page 16. At the videoconference the Veteran testified that while aboard the USS Kitty Hawk as a machinist's mate he worked around the pipes of the ship which were wrapped in asbestos for insulation, at which times he did not wear or use any protective breathing apparatus and, so, inhaled particles of asbestos. He had been merely told to take a shower to remove the asbestos particles. After service he had worked at the Long Beach Naval Shipyard as a machinist but had not been around asbestos at that time. This was one of the pilot shipyards for instituting a program relating to asbestos, and he was a part of that program. He had been placed in the asbestos program in accordance with the U.S. Navy Bureau of Ships requirements. He had been discharged from the Navy in 1968 but it was not until the late 1970s that the Navy put him on a 50-year test program. The Veteran testified that a pulmonary function test at a VA facility had yielded a diagnosis of COPD. A Back (thoracolumbar spine) Disability Benefits Questionnaire dated in February 2017 and received in March 2017 reported the Veteran's history of inservice treatment for his back in 1967 and 1968. The diagnoses were DDD and radiculopathy, with the dates of the diagnoses reportedly being in 1967 and 1968. On examination he had limited spinal motion as well as guarding and muscle spasm. It was reported that he had radicular symptoms in each leg. It was also reported that the condition impaired functioning. However, there was no nexus opinion specifically linking the Veteran's current low back condition to his military service. In VA Form 21-4138, Statement in Support of Claim, dated March 8, 2017, the Veteran described his inservice exposure to asbestos. Principles of Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after 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). However, not every manifestation of joint pain or any cough, during service will permit service connection for arthritis or pulmonary diseases first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including arthritis and diabetes mellitus, if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, when credible, is competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service, subject to the limitation that the claimed disability is a 'chronic' disease as defined at 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 38 U.S.C.A. § 1154(a) requires consideration of all pertinent medical and lay evidence. This requires assessing competence, credibility, and probative (relative) weight of evidence. "[T]here is no categorical requirement of 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis'." Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (citing v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) quoting Jandreau , 492 F.3d at 1377 (2007)); see also 38 C.F.R. § 3.307(b) (a determinative factual basis can be shown by medical or competent lay evidence) and 38 C.F.R. § 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings in Buchanan, Id., and Jandreau, Id.). Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once lay evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, but it is a factor. Buchanan, 451 F.3d at 1336. VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered"). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). Analysis Initially, the Board notes that the Veteran has submitted into the record copies of Board decisions in other cases which addressed service connection for a back disability and entitlement to service connection for respiratory disorders, and some of which specifically addressed claims for service connection for asbestosis. 38 C.F.R. § 20.1303 provides that "[a]lthough the Board strives for consistency in issuing its decisions, previously issued Board decisions will be considered binding only with regard to the specific case decided. 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." Diabetes Mellitus VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain 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. This list of diseases includes type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Notwithstanding the presumptive provisions, service connection for claimed residuals of exposure to herbicides also may be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.), citing 38 U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303. There are two theories by which a presumption of herbicide exposure may apply and they are (1) presence in Vietnam or brown waters of Vietnam, or (2) actual exposure, even if in blue waters off the coast of Vietnam. As to the first theory, this requires no evidence of actual exposure to herbicides. Specifically, a veteran who "served in the Republic of Vietnam" between January 6, 1962, and May 7, 1975, is presumed service connected for certain conditions likely caused by exposure to herbicides, including diabetes, even if he cannot prove he was ever actually exposed. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). But VA limits this presumption to veterans who served on or visited the Vietnam landmass or its inland waterways, and does not apply it to veterans who served exclusively offshore in ocean-going ships, i.e., in the "blue water Navy." See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's statutory interpretation excluding the "blue water Navy" from presumptive herbicide exposure). The term "blue water Navy" refers to open water naval vessels that sailed off the coast of Vietnam, as opposed to the term "brown water Navy," which refers to ships that sailed within the inland waterways of Vietnam. Taina v. Shinseki, No. 13-0875, slip op. footnote 1 at 3 (U.S. Vet.App. May 27, 2014) (nonprecedential memorandum decision). "[A] May 2011 Institute of Medicine (IOM) report concluded that although there were several plausible ways by which blue water Navy veterans could have been exposed to herbicides, "there was not enough information on the concentrations of Agent Orange in the Vietnamese environment to determine whether blue water Navy veterans were or were not exposed to Agent Orange via ingestion, dermal contact, or inhalation of potable water." See BLUE WATER NAVY VIETNAM VETERANS AND AGENT ORANGE EXPOSURE, INSTITUTE OF MEDICINE (May 20, 2011)"; generally see also Taina v. Shinseki, No. 13-0875, slip op. at 3 (U.S. Vet.App. May 27, 2014) (nonprecedential memorandum decision). Here, the Veteran admits that his ship never docked in Vietnam, including at any deep water port, and that he never set foot on the Vietnam landmass. Under these circumstances, it is not error to determine that the Veteran is not entitled to the presumption of herbicide exposure under the first theory. Taina v. Shinseki, No. 13-0875, slip op. at 3 and 4 (U.S. Vet.App. May 27, 2014) (nonprecedential memorandum decision). As to the second theory, the Veteran asserts that he was exposed to herbicides by drinking and bathing in contaminated water, and thus entitled to service connection based on the herbicide presumption as a result of actual herbicide exposure. See generally Taina v. Shinseki, No. 13-0875, slip op. at 2 (U.S. Vet.App. May 27, 2014) (nonprecedential memorandum decision). In addressing the second theory, i.e., actual herbicide exposure, the Board must not only address the appellant's competence and credibility to observe the symptoms of his diabetes and to address its etiology but must also the credibility or competence of the appellant's lay evidence or testimony that he was exposed to Agent Orange while in the waters just off the coast of Vietnam; which, if accepted, might lead to an award of service connection. Taina v. Shinseki, No. 13-0875, slip op. at 3 and 4 (U.S. Vet.App. May 27, 2014) (nonprecedential memorandum decision). Here, the 2011 VA examination determined that, at that time, the Veteran only had impaired fasting glucose and did not at that time meet the diagnostic criteria for diabetes. Subsequent evidence establishes that he does now have diabetes. However, it is neither shown nor contended that diabetes manifested during military service or within the first year after his discharge from service in 1968. Rather, the sole basis for his appeal is that diabetes is due to inservice herbicide exposure from water in Vietnam that flowed out to the sea which was contaminated with herbicides. Indeed, in a written statement he conceded that his ship had not docked or laid anchor at a Vietnamese port and that he had never been inland in Vietnam. Other than this sheer speculation there is nothing which links his current diabetes to his military service. However, the Veteran is simply not competent to attest that water from inland Vietnam flowed out to sea and remained within water used on the USS Kittyhawk for cleaning clothes, drinking, food preparation, and bathing. The Veteran's argument is similar to the argument raised in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), in which the veteran argued that service members serving offshore could have been exposed to Agent Orange through several mechanisms, such as "runoff" carrying toxic chemicals into the sea, "spray drift" transporting toxins via the wind, and the shipboard consumption of drinking water produced by evaporative distillation; the veteran cited an Australian study for support. The study conducted by the Australian Department of Veterans Affairs suggested that Vietnam Veterans of the Royal Australian Navy may have been exposed to herbicide compounds by drinking water distilled on board their vessels. The findings of the study were considered by VA in creating a rule against presumptive exposure to deep water vessels. Although the Federal Circuit passed no judgment on the validity of studies such as the Australian study, it did highlight VA's rulemaking with respect to this Australian study: "VA scientists and experts have noted many problems with the study that caution against reliance on the study to change our long-held position regarding veterans who served off shore. First, as the authors of the Australian study themselves noted, there was substantial uncertainty in their assumptions regarding the concentration of dioxin that may have been present in estuarine waters during the Vietnam War . . . . Second, even with the concentrating effect found in the Australian study, the levels of exposure estimated in this study are not at all comparable to the exposures experienced by veterans who served on land where herbicides were applied . . . . Third, it is not clear that U.S. ships used distilled drinking water drawn from or near estuarine sources or, if they did, whether the distillation process was similar to that used by the Australian Navy." Haas v. Peake, 525 F.3d 1168, 1194 (quoting 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Accordingly, even after consideration of the doctrine of the favorable resolution of doubt, the Board must conclude that there is no competent and credible evidence that the Veteran was exposed to herbicides and, thus, his diabetes mellitus, which manifested decades after his military service, is not shown to be related to his military service. Lumbar Spine Disorder, Including Arthritis and DDD The service records document that the Veteran was treated on two occasions for his back. It is also clear, and undisputed, that he now has a current low back disability. The remaining question is whether there is a nexus between the two. Here, the VA examiner opined that the injuries for which the Veteran was treated were self-limiting and, thus, acute and transitory and not productive of a chronic low back disorder. This was implicitly premised on the absence of contemporaneous postservice medical evidence of continuity of symptomatology. In this regard, the Veteran has consistently asserted that he sought VA treatment for a low back disability in the immediate postservice years. The Board finds that the Veteran's statements and testimony, particularly in that they are supported by corroborating lay statements that he sought VA treatment in the immediate postservice years, are credible. Indeed, the Veteran's initial contacts with VA were in 1971 at which time he sought education benefits. The Veteran also suggested a service onset of his back problems to his treating physician in 2000 long before he filed his initial claim for compensation benefits in 2011. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (providing that in determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Further, the Veteran is competent to attest to observable symptomatology which serves to establish continuity of symptomatology. In sum, with the favorable resolution of doubt, the Board finds that the lay evidence in this case is credible for the purpose of establishing the required nexus between the Veteran's multiple inservice back injuries and his current arthritis and DDD of the lumbar spine. ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for a lumbar spine disorder, to include arthritis and DDD is granted. REMAND "'Asbestosis' is a 'form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, marked by interstitial fibrosis of the lung.' DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 161-62 (32d ed. 2012)." McKinney v. McDonald, No. 13-2273, slip op. 18, footnote 15 (U.S. Vet.App. March 11, 2016) (panel decision). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate the veteran's claim for service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id.); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, Part VI, par. 7.21(a)(1) & (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). In addition, the M21-1 notes that, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1, Part VI, par. 7.21(b)(2). Next, the Board notes that the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease) (Id.). As to the Court, it has held that the M21-1 did not create a presumption of inservice exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Also see Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, in claims for service connection for disability due to asbestos exposure, the appellant must first establish that the disease that caused or contributed to his disability was caused by events in service or an injury or disease incurred therein. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As to the General Counsel, in VAOPGCPREC 04-2000 (April 13, 2000), it was held, in relevant part, as follows: M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but nonetheless need to be discussed by the Board in all decisions; the first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and the development criteria it lays out must be followed by the agency of original jurisdiction; and M21-1, Part VI, par. 7.21 does not create a presumption of medical nexus between a current asbestos related disease and military service. In this case, the Board finds that the Veteran's inservice duties likely exposed him to asbestos. Similarly, the simple fact that after military service, while employed at a shipyard, he was placed on an Asbestos Watch Surveillance Program does not mean that any pulmonary or respiratory disorder which he now has is necessarily due to such inservice asbestos exposure. At the time of the 2011 VA examination it was opined that the Veteran did not have a respiratory disorder. However, more recent evidence tends to show that he does have COPD or, accordingly to recent private medical records, asthma. Accordingly, the Board is of the opinion that another examination of the Veteran is in order to determine whether any COPD or asthma is related to inservice exposure to asbestos. Accordingly, the claim for service connection for asbestosis and COPD, claimed as residuals of asbestos exposure, is REMANDED for the following action: 1. Afford the Veteran an examination for the purpose of verifying the nature and etiology of any respiratory disease which he may now have. The examiner's attention is drawn to the Veteran's conceded inservice exposure to asbestos. The examiner is requested to identify each respiratory disability which the Veteran now has. For example, does the Veteran now have asthma, or bronchitis, or emphysema, or asbestosis, or any combination of these and/or other respiratory disorders. As to each identified respiratory disorder, the examiner is requested to provide an opinion on whether it is at least as likely as not that any such identified respiratory disorder is caused by or related to the Veteran's inservice asbestos exposure. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The file should be available to the examiner for review. The examiner should state in the examination report that the file has been reviewed. A complete rationale for any opinion is required. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case. 2. Thereafter, readjudicate the claim in light of all additional evidence. If the claim remains denied, issue a Supplemental Statement of the Case and allow the Veteran and his representative the appropriate opportunity to respond. Then, if otherwise in order, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs