Citation Nr: 18118819
Decision Date: 07/17/18	Archive Date: 07/17/18

DOCKET NO. 15-24 231
DATE:	July 17, 2018
ORDER
1. Entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicides, is denied.
2. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides, is denied.
FINDINGS OF FACT
1. The Veteran was not physically present on the landmass or inland waters of the Republic of Vietnam at any point during his service nor was he directly exposed to herbicide agents.
2. Ischemic heart disease did not have its onset in during active duty service or within one year of separation from service and is not otherwise related to active duty service, to include exposure to herbicides.
3. Diabetes mellitus type II did not have its onset in during active duty service or within one year of separation from service and is not otherwise related to active duty service, to include exposure to herbicides.
CONCLUSIONS OF LAW
1. The criteria for service connection for IHD, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
2. The criteria for service connection for diabetes mellitus type II, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1101. 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1965 to May 1968 and from May 1968 to March 1972.
To the extent that the Veteran asserts records are missing to include any records of transferring planes in Da Nang bound for the United States, including in a June 2015 substantive appeal (VA Form-9), the Board finds that VA fulfilled its duty to assist. Specifically, a Personnel Information Exchange Systems (PIES) request was made in August 2013 to “furnish pages from the personnel file showing units of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations, and official travel outside the U.S.” A response of “all available requested records – mailed” was received and the available military personnel record was associated with the Veteran’s claims file.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Cardiovascular-renal disease and diabetes mellitus are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 
The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) 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.
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, 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) (2017). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in 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) (2012).
“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) (2017). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam.
In short, the Veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S.Ct. 1002. (2009).
Service on a deep-water vessel off the shores of Vietnam is generally not considered service in the Republic of Vietnam for purposes of 38 C.F.R. § 3.307(a)(6). VAOPGCPREC 27-97. Veterans who served in deep-water naval vessels off the coast of Vietnam during the Vietnam War are referred to as “Blue Water Navy Veterans,” and there is no presumption of exposure to herbicides for such claimants. See Presumption of Exposure to Herbicides for Blue Water Navy Vietnam Veterans Not Supported, 77 Fed. Reg. 76170 (Dec. 26, 2012). It is reiterated that service in the waters offshore Vietnam is only qualifying service if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Service on a deep-water naval vessel off the shores of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C. § 101(29)(A), unless evidence shows that a Veteran went ashore. VAOPGCPREC 27-97. VA General Counsel opinions are binding on the Board. See 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 14.507 (2017).
Since issuance of the above-cited General Counsel opinion, VA has reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam) is not included as “service in the Republic of Vietnam” for purposes of presumptive service connection for Agent Orange diseases. See comments section in Federal Register announcement of final rule adding diabetes to the list of Agent Orange presumptive diseases, 66 Fed. Reg. 23166 (May 8, 2001).
Although “inland waterways” are not defined in VA regulations, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam “brown water” Navy operated. VA Adjudication Procedure Manual M21-1, IV.ii.1.H.2.a., d. Service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. See VBA Manual M21-1, IV.ii.2.C.3.m. Open water ports, such as Da Nang, Cam Ranh Bay, and Vung Tu, are considered extensions of ocean waters and not inland waterways. Id.
In Gray v. McDonald, 27 Vet. App. 313 (2015), VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) was found to be arbitrary and capricious insofar as it designates Da Nang Harbor as offshore waters rather than an inland waterway without providing a principled reason for that designation.
A recent amendment to the VA’s Adjudication Procedure Manual classifies inland waterways as fresh water rivers, streams, and canals, and similar waterways. VBA Manual M21-1, IV.ii.1.H.2.a. Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is considered service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See VBA Manual M21-1, IV.ii.1.H.2.a.; see also VBA Manual M21-1, IV.ii.2.C.3.m.
Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean. VBA Manual M21-1, IV.ii.1.H.2.b.
Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility.
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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
1. Entitlement to service connection for ischemic heart disease (IHD), to include as due to exposure to herbicides.
The Veteran contends that service connection for IHD is warranted because it was incurred in service or otherwise a result of service, to include exposure to herbicides while serving in Vietnam.
The Veteran has a diagnosis of coronary artery disease (CAD) which is included as an IHD, reflected in his VA treatment records since May 2011. Accordingly, the first element of service connection is met. However, the Board finds that service connection for IHD is not warranted because while IHD is a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e), the Veteran is not presumed to have been exposed to herbicide agents, to include Agent Orange, while in service. Further, the medical evidence of record does not establish the required nexus between the disability and the Veteran’s military service.
The Veteran’s DD Form 214, Certificate of Release or Discharge, shows that he was assigned to the U.S.S. Valley Forge (LPH-8). An October 2013 memorandum, a formal finding of a lack of information required to corroborate exposure to Agent Orange in the Republic of Vietnam, reflects that a Personnel Information Exchange Systems (PIES) O34 also confirmed that the Veteran served aboard the U.S.S. Valley Forge and that the personnel file reflects the Veteran served on U.S.S. Valley Forge from April 1968 to May 1970. The memorandum indicates that all procedures to obtain the information required to corroborate exposure to Agent Orange described by the Veteran was insufficient to send to the U.S. Army and JSRRC and/or insufficient to allow for meaningful research of Marine Corps of National Archives and Records Administration (NARA) records. Further, it is noted that all procedures to obtain the information had been properly followed and exhausted and any further attempts would be futile. The specific efforts made were detailed in the memorandum. 
As service in Vietnam during the Vietnam Era is not confirmed, exposure to herbicide agents cannot be presumed. The U.S.S. Valley Forge is listed as a ship that operated on Vietnam’s close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore from September 1964 to September 1969. See Vietnam Era Navy Ship Agent Orange Exposure Development Site. It also is listed as a ship that temporarily operated on Vietnam’s inland waterways, entering the mouth of Hue River during December 1965, which was over two years prior to the Veteran’s service. Id.
In a September 2013 statement, the Veteran stated that he did two tours in Vietnam aboard the U.S.S. Valley Forge. He explained that he worked “mostly above the flight deck in sky”. The Veteran specifically stated that he did not set foot on land, but he believed that he was exposed due to contamination and exposure from helicopters and combat personnel bringing back traces of Agent Orange. The Veteran stated that the vessel anchored in Da Nang Harbor. In an April 2014 statement, the Veteran stated that he believed that he set foot in Vietnam when he was discharged. He indicated that he flew from the ship and believed he went to Da Nang.
As stated above, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. See VBA Manual M21-1, IV.ii.2.C.3.m. Additionally, the Veteran has been inconsistent in his statements regarding whether he actually set foot in the Republic of Vietnam and has provided no corroborating evidence. The Board notes that while an April 2012 VA Agent Orange examination report indicates that the U.S.S. Valley Forge is on the official VA list of ships whose crew have presumptive Agent Orange exposure, however as discussed above, the presumption does not apply to the Veteran as actual visitation was not shown by credible probative evidence. Accordingly, the Board finds that the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) do not apply.
Furthermore, there is no credible evidence that the Veteran was actually exposed to herbicide agents during service. With respect to the Veteran’s contention that he was exposed to herbicide agents through contact with contaminated air, water supply, helicopters, equipment, or troops, the Board notes that while it is “conceivable that some veterans of offshore service incurred exposure under some circumstances due, for example, to airborne drift, groundwater runoff, and the proximity of individual boats to the Vietnam Coast,” VA is “not aware of any valid scientific evidence showing that individuals who served in the waters offshore of the Republic of Vietnam or in other locations were subject to the same risk of herbicide exposure as those who served within the geographic land boundaries of the Republic of Vietnam.” 69 Fed. Reg. 44,614, 44,620 (July 27, 2004); 73 Fed. Reg. 20,566, 20,568 (April 16, 2008); Haas, 525 F.3d at 1182-83. Additionally, the JSRRC reviewed numerous official military documents, ship logs and other sources of information pertaining to Navy and Coast Guard ships and the use of tactical herbicide agents in the Vietnam era, and found no evidence that those ships transported tactical herbicides to the Republic of Vietnam or that ships operating off the coasts of Vietnam used, stored, tested, or transported herbicides.
The Board finds that the Veteran’s assertions that he was exposed to herbicide agents are of diminished probative value, especially given their speculative and contradictory nature. The Veteran is not competent to state that any aircraft with which he came into contact onboard the U.S.S. Valley Forge was contaminated with herbicide agents. In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the United States Court of Appeals for Veterans’ Claims (Court) held that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant’s lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident. Therefore, the Board finds that there is no competent evidence of record showing that the Veteran was in fact exposed to herbicide agents. 
Accordingly, because the Veteran is not presumed to have been exposed to herbicide agents during service in Vietnam, and because there is no credible evidence of actual exposure to herbicide agents, the Board finds that the Veteran was not exposed to herbicide agents during his military service.
The Board has also reviewed the evidence to include service treatment records; personnel records; and post-service medical records for any indication that an IHD was incurred in service or otherwise caused by service and finds the preponderance of the evidence is against such relationship. The Veteran’s March 1972 separation examination from his period of service revealed normal findings of all bodily systems (except for psychiatric and identifying marks) including heart; lungs and chest; and vascular system. In the Veteran’s March 1972 Report of Medical History associated with his service separation examination, under part 11, it provides a list of symptoms and asks whether the person has ever had or has now these symptoms. The Veteran checked “no” to “pain or pressure in chest;” “palpitation or pounding heart;” “heart trouble;” and “high or low blood pressure.” Further, the Veteran checked “yes” when asked if he “ever had any illness or injury other than those already noted” and specified “shattered bone in right foot.” The Veteran signed this document, wherein he attested that the information he provided in this form was “true and complete to the best of my knowledge.” The examiner wrote, “all affirmative answers have been evaluated and found to be of no clinical significance at this time and are NCD [(not considered disabling)].” The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. Thus, the Board finds that the preponderance of the evidence is against an in-service occurrence or an event relating to any heart disorder or IHD.
The evidence of record also does not show that the Veteran’s IHD manifested to a degree of 10 percent disabling or more within one year from his March 1972 separation from service and a presumption of service connection based on the chronicity of a heart disability or IHD is not appropriate as treatment started nearly 40 years after separation in May 2011. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a).
There are numerous post-service medical records reflecting complaints and treatment for a heart disorder. However, these records do not directly provide a positive nexus regarding the onset, etiology, or relationship of an IHD to military service to include exposure to herbicides. The Veteran has asserted that his IHD disorder is related to service; however, the Veteran has not offered probative and competent evidence establishing a nexus between the Veteran’s disorder and service; to include exposure to herbicides. Lay evidence may be competent to establish medical etiology or nexus. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” A diagnosis of an IHD requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.
Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his IHD, the Board finds that the Veteran’s IHD disorder was not incurred in-service and is not otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) (“A claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for IHD, to include as due to exposure to herbicides, is not warranted.
The preponderance of the evidence is against the claim of service connection for IHD, to include as due to exposure to herbicides, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides. 
The Veteran contends that service connection for diabetes mellitus type II is warranted because it was incurred in service or otherwise a result of service, to include exposure to herbicides while serving in Vietnam.
The Veteran has a diagnosis of diabetes mellitus type II, which has been shown in private medical records as early as June 2007. Accordingly, the first element of service connection is met. However, the Board finds that service connection for diabetes mellitus type II is not warranted because while diabetes mellitus type II is a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e), the Veteran is not presumed to have been or directly exposed to herbicide agents, to include Agent Orange, while in service, as detailed above. Further, the medical evidence of record does not establish the required nexus between the disability and the Veteran’s military service.
The Board has also reviewed the evidence to include service treatment records; personnel records; and post-service medical records for any indication that diabetes mellitus type II was incurred in service or otherwise caused by service and finds the preponderance of the evidence is against such relationship. The Veteran’s earliest diagnosis of diabetes mellitus type II was in June 2007, which is over 35 years after service discharge. The medical evidence does not show that the Veteran’s diabetes mellitus type II, manifested to a degree of 10 percent disabling or more within one year from his March 1972 separation from service and a presumption of service connection based on the chronicity diabetes mellitus type II is not appropriate. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a).
The Veteran’s March 1972 separation examination from his period of service revealed normal findings of all bodily systems except for psychiatric and identifying marks. In the Veteran’s March 1972 Report of Medical History associated with his service separation examination, under part 11, the Veteran checked “no” when asked if he had or ever had “frequent or painful urination;” “kidney stone or blood in urine;” “recent gain or loss of weight;” and indicated “don’t know” when asked about “sugar or albumin in urine.” Further, the Veteran checked “yes” when asked if he “ever had any illness or injury other than those already noted” and specified “shattered bone in right foot.” The Veteran signed this document, wherein he attested that the information he provided in this form was “true and complete to the best of my knowledge.” The examiner wrote, “all affirmative answers have been evaluated and found to be of no clinical significance at this time and are NCD.” The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. Thus, the Board finds that the preponderance of the evidence is against an in-service occurrence or an event relating to diabetes mellitus type II.
There are numerous post-service medical records reflecting complaints and treatment for diabetes mellitus type II. However, these records do not directly provide a positive nexus regarding the onset, etiology, or relationship of diabetes mellitus type II to military service to include exposure to herbicides. The Veteran has asserted that his diabetes mellitus type II is related to service; however, has not offered probative and competent evidence establishing a nexus between the diabetes mellitus type II and service; to include exposure to herbicides. Lay evidence may be competent to establish medical etiology or nexus. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” A diagnosis of diabetes mellitus type II requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.
Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his diabetes mellitus type II, the Board finds that diabetes mellitus type II was not incurred in-service and is not otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a); Skoczen, 564 F.3d at 1323-29; Fagan, 573 F.3d at 1286. Accordingly, service connection for diabetes mellitus type II, to include as due to exposure to herbicides, is not warranted.
The preponderance of the evidence is against the claim of service connection for diabetes mellitus type II, to include as due to exposure to herbicides, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cheng, Associate Counsel