Citation Nr: 19149697 Decision Date: 06/25/19 Archive Date: 06/25/19 DOCKET NO. 14-28 900A DATE: June 25, 2019 ORDER Entitlement to service connection for ischemic heart disease, to include as due to in-service herbicide exposure, is granted. Entitlement to service connection for diabetes mellitus, type II, with diabetic retinopathy, to include as due to in-service herbicide exposure, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the evidence of record indicates that he is presumed to have been exposed to herbicides, including Agent Orange, while serving aboard the USS Providence in the waters of Vietnam. 2. Resolving reasonable doubt in the Veteran’s favor, the weight of the probative evidence of record finds that his ischemic heart disease is related to his military service, to include in-service herbicide exposure. 3. Resolving reasonable doubt in the Veteran’s favor, the weight of the probative evidence of record finds that his diabetes mellitus, type II, with retinopathy, is related to his military service, to include in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to in-service herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for diabetes mellitus, type II, with diabetic retinopathy, to include as due to in-service herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from March 1967 to February 1968. In November 2016, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims for service connection for ischemic heart disease and diabetes mellitus, type II, with diabetic retinopathy, both claimed as due to in-service herbicide exposure. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court issued an Order that vacated the Board’s decision on both issues and remanded the matter to the Board for action in compliance with the Court’s Order. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A veteran who, while in active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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 during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The list of these diseases includes ischemic heart disease and diabetes, type II. 38 C.F.R. § 3.309(e). The foregoing diseases shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, 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. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute/early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide exposure. Brock v. Brown, 10 Vet. App. 155 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The evidence associated with the Veteran’s claims folder is substantial. Therefore, the analysis below will focus on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The pertinent evidence is addressed in detail below. Service connection for ischemic heart disease, to include as due to in-service herbicide exposure Service connection for diabetes mellitus, type II, with diabetic retinopathy, to include as due to in-service herbicide exposure The Veteran asserts that he was exposed to herbicides while serving aboard the USS Providence in November 1967 when it entered and exited Da Nang Harbor in support of military combat operations. Specifically, the Veteran maintains that when entering the harbor in November 1967, the USS Providence got so close to the shore that he touched tree branches from the mainland. The Veteran further asserts that his ischemic heart disease and diabetes mellitus, type II, with diabetic retinopathy, resulted from his in-service herbicide exposure. The Veteran does not contend that he set foot in Vietnam. Instead, he contends that he was exposed to herbicides while aboard the USS Providence, which touched land while in Vietnam waters. Service records show that the Veteran served aboard the USS Providence from October to December 1967. The ship’s Command History indicates that it provided combat support in late 1967. The National Personnel Records Center (NPRC) found no conclusive evidence of the Veteran’s in-country service in the Republic of Vietnam and reported that his ship sailed in the waters off the coast of Vietnam on two occasions, from November 14 to 22, 1967 and from November 29 to December 24, 1967. A review of the ship’s deck logs from November to December 1967 shows that it repeatedly steamed Da Nang Harbor and dropped anchor on November 19, 1967. As an initial matter, the record indicates that the Veteran has current diagnoses of ischemic heart disease and diabetes mellitus, type II, with diabetic retinopathy. Notably, the Veteran was diagnosed with diabetes mellitus, type II, in 1996; diabetic retinopathy in 2009; and ischemic heart disease in 2010. Ischemic heart disease and type II diabetes mellitus are diseases that will be presumptively service-connected on the basis of in-service exposure to herbicides, including Agent Orange. 38 C.F.R. § 3.309(e). Therefore, the Veteran’s claim turns on whether he was exposed to in-service herbicide agents that resulted in his currently-diagnosed ischemic heart disease and diabetes mellitus, type II, with diabetic retinopathy. On this question, there is probative evidence in favor of, and against, the claim. The evidence against the claim includes a May 2013 report from the Joint Services Records Research Center (JSSRC) stating that it found no evidence indicating that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported, tactical herbicides. The JSRRC was unable to document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The JSRRC was unable to provide evidence to support the Veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. The evidence in favor of the claim includes a January 2016 private treatment report from C. M., M.D., a March 2016 treatment report from M. S. S., M.D., and a March 2019 affidavit of J. B. W. In a January 2016 private treatment report, C.M., M.D., noted that the Veteran was trying to obtain service connection due to Agent Orange exposure and was in Da Nang Harbor “with exposure documented.” Dr. C.M. commented that “service is stating no boots on the ground, but common sense tells you that those stationed in the harbor were also exposed.” In March 2016, M. S. S., M.D., noted his review of deck logs of the USS Providence that provided ground support fire and entered Da Nang Harbor. The Veteran reported the acute onset of headaches, dizziness, and nausea, during operations while in Da Nang Harbor that resulted in his decreased functional capacity. The Veteran described the last three days of his experience on the USS Providence as being unable to accomplish his responsibilities. According to the physician, this strongly suggested some type of acute occupational exposure. Dr. M. S. S. noted his review of The Da Nang Harbor Report, The Blue Water Navy Report, basic information about dioxin and drinking water as published by the Environmental Protection Agency, studies published by VA, Australia, and the National Research Center for Environmental Toxicology, and the summary and conclusions of The Committee on Blue Water Navy Vietnam Veterans and Agent Orange Exposure, to find “compelling support” of the Veteran’s likely exposure to Agent Orange. In Dr. M. S. S’s opinion, it was as likely as not that the Veteran’s exposure to Agent Orange as a shipmate aboard the USS Providence during the Vietnam War was the precipitating agent accounting for his development of type II diabetes mellitus and the debilitating consequences of neuropathy and retinopathy from which he now suffers. The physician commented that most individuals with type II diabetes mellitus had a genetic predisposition with this disease being in a first degree relative. Because this was not the case with the Veteran, Dr. M. S. S. was even more convinced that his exposure to Agent Orange was the likely precipitant to his type II diabetes. In a March 2019 affidavit, J. B. W., retired Navy Commander and surface warfare officer who served on six different ships for 22 years, stated that gun ships, such as the USS Providence, on which the Veteran was stationed, would operate as close to shore as possible and would operate in harbors or within the ten-fathom curve to maximize their field of fire. J. B. W. stated that it was common practice for the ships to anchor while providing gunfire support. He stated that, in the case of the USS Providence, the admiral and many of his staff members were brought aboard, while in Da Nang Harbor, by helicopter. He further stated that the dioxin would adhere to their shoes, clothing, and briefcases, and be tracked aboard the ship, and that these officers were assigned to the staff spaces where the Veteran worked. Upon review of the record, in giving the Veteran the benefit of the doubt, the Board finds that he was exposed to herbicides while aboard the USS Providence when it entered and exited Da Nang Harbor in support of military combat operations. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that he has met the evidentiary burden to establish in-service exposure to herbicides. As such, service connection for ischemic heart disease and diabetes mellitus, type II, with retinopathy, is warranted on a presumptive basis. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 57. As the Board is granting the claim on a presumptive theory of entitlement, no further discussion of whether service connection is warranted on a separate theory is necessary. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Trowers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.