Citation Nr: 21062431 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 12-15 491 DATE: October 7, 2021 ORDER Service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus. 2. The Veteran did not have service in the Republic of Vietnam (Vietnam), did not serve within the 12 nautical mile territorial sea of the Republic of Vietnam, was not exposed to herbicide agents during service, and herbicide exposure during service is not presumed. 3. Diabetes mellitus was not chronic in service, weas not continuous since service separation, and was not shown to a compensable degree within one year of service separation. 4. Diabetes mellitus was not incurred in service and is not etiologically related to service, to include exposure to hazardous chemicals such as jet fuels or gasoline during service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from September 1959 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Regional Office (RO), which, in pertinent part, denied reopening of service connection for diabetes mellitus. This matter was previously before the Board in August 2016 and May 2019. In August 2016, the Board reopened service connection for diabetes and remanded the matter for the RO to attempt to obtain information on the duties associated with the Veteran's military occupational specialty of airport serviceman, as well as information on the chemicals used or stored on USS Kearsarge while the Veteran was aboard the ship from December 1959 to July 1963. In May 2019, the Board remanded for additional development to obtain the ship logs for USS Kearsarge for the dates that the Veteran was stationed on the ship. The RO requested information from the Bureau of Navy Personnel (BNP) regarding information on the description of duties of an airport serviceman in air transportation, as well as information on a list of chemicals used by USS Kearsarge from 1959 to 1963. In June 2017, BNP provided a description of the duties of an airport serviceman; however, in September 2017 email correspondence, BPN responded that they do not maintain information on the list of chemicals used by USS Kearsarge from 1959 to 1963. See June 2017 Correspondence, September 2017 Email Correspondence. The RO also requested information on the list of hazardous chemicals used on the USS Kearsarge from 1959 to 1963 from National Archives and Records Administration (NARA), Navy Safety Center (NCS), and Naval Sea Systems Command (NSSC). In February 2017 and April 2018 correspondence, NARA responded that they were unable to comply with the request for information on hazardous chemicals used aboard USS Kearsarge because the information requested in not arranged in a manner that would be reviewing a series of records. In March 2017, NSC responded that they do not have records pertaining to the use of chemicals aboard ships. In May 2017, NSSC replied that after a thorough search of headquarter files for information on the types of aircraft fuels or other hazardous chemicals used on USS Kearsarge, no records were located regarding USS Kearsarge. In July and October 2018, the RO requested information on hazardous chemicals used aboard USS Kearsarge from the Navy and Marine Corps Public Health Center, but no response was received to date. See February 2017, March 2017, May 2017, April 2018 Correspondence; November 2018 Report of General Information. In May 2020, November 2020, and June 2021, the RO associated the Logbooks for the Veteran's relevant period of service aboard USS Kearsarge with the claims file. For these reasons, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2016 and May 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection for Diabetes Mellitus The Veteran contends that he was exposed to herbicide agents during service aboard USS Kearsarge. The Veteran reports that he served aboard USS Kearsarge from December 1959 to June 1963 while it was located in the territorial seas of Vietnam. Additionally, the Veteran asserts that he may have been exposed to herbicide agents during a two-week period in July 1963 while the USS Kearsarge was stationed in Okinawa. Alternatively, the Veteran asserts that his diabetes mellitus may be related to exposure to jet fuel or other unspecified hazardous chemicals and/or herbicides during service. The Veteran contends that he came into direct contact with jet fuels or gasoline, as his military duties included refueling aircraft and maintenance and repair of refueling system. The Veteran asserts that he also pumped unspecified chemicals and/or herbicides into auxiliary tanks mounted on the aircraft. See August 2018, January 2017 correspondence, September 2021 representative brief. 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, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. The Veteran is currently diagnosed with diabetes mellitus, which recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for diabetes mellitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). Diabetes mellitus is listed as a disease for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e). "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). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit held that veterans who "served in the 12 nautical mile territorial sea of the Republic of Vietnam" are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Notwithstanding the foregoing presumption provisions for herbicide exposure, 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); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The evidence shows a current disability of diabetes mellitus. See September 2021, VA treatment record, February 2017 VA examination report. Upon review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not have "service in the Republic of Vietnam" so may not be presumed to have been exposed to herbicides during service, and did not otherwise have actual exposure to herbicides during service. Consequently, the evidence is against presumptive service connection for diabetes mellitus and for direct service connection for diabetes mellitus based on alleged actual exposure to herbicides. The Board has considered the Veteran's contention that he served aboard USS Kearsarge while it was in the territorial waters of Vietnam. The Veteran does not otherwise contend that he served in the Republic of Vietnam. Herbicide agent exposure is presumed for veterans who served in the Republic of Vietnam, to include within the 12 nautical mile territorial sea of the Republic of Vietnam, during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6), see also Procopio, 913 F.3d 1371. There is some evidence that indicates that USS Kearsarge entered the waters of Vietnam while the Veteran was aboard the ship between January 1961 to May 1961 (See June 2002 Request for Information); however, the evidence of record does not show that USS Kearsarge entered within the inland waters or eligible territorial seas of the Republic of Vietnam during the herbicide presumptive period beginning on January 9, 1962 and ending on May 7, 1975. Specifically, the logbooks for the USS Kearsarge for the period from January 1962 to July 1963 do not reflect evidence that the USS Kearsarge entered withing the 12 nautical mile territorial sea of the Republic of Vietnam. See Logbooks. To the extent that the Veteran asserts that he pumped unspecified chemicals and/or herbicides into auxiliary tanks mounted on aircraft on the USS Kearsarge, the evidence of records does not confirm the presence of herbicide agents on Naval aircraft carrier ships. March 2009 correspondence from the Compensation and Pension Policy Staff indicates that USS Kearsarge was a platform for jet fighter attack aircraft and that Agent Orange was not stored or transported on aircraft carriers, as Agent Orange spraying in Vietnam was an Air Force operation, called Ranch Hand. Additionally, USS Kearsarge also was not a supply ship and would not have been delivering Agent Orange to mainland Vietnam. In a June 2009 VA memo, the Joint Services Records Research Center (JSRRC) found no evidence that Navy or Coast Guard ships transported tactical herbicides from the US to Vietnam or that other ships operating off the coast of Vietnam used, stored, tested or transported herbicides. As such the weight of the evidence is against finding that the Veteran was exposed to herbicide agents while aboard USS Kearsarge from December 1959 to July 1963. The weight of the evidence is also against finding herbicide agent exposure when the Veteran was aboard USS Kearsarge in July 1973, while the ship was in Okinawa, Japan. Specifically, the Veteran asserts that he was exposed to herbicide agents for two weeks in July 1973 while serving aboard USS Kearsarge when it was located in Okinawa, until he transferred off the ship on July 12, 1963. In support of this assertion, the Veteran included the link to an April 2019 website blog entry from Chisholm, Chisholm & Kilpatrick LLP (CCK), which indicates that an Army report entitled "An Ecological Assessment of Johnston Atoll" revealed that Agent Orange was stored in Okinawa. See May 2021 correspondence; see also "Was Agent Orange Used on Okinawa?", https://cck-law.com/blog/was-agent-orange-used-on-okinawa/ (last visited October 6, 2021). Service personnel records show that the Veteran served on USS Kearsarge from December 23, 1959 to July 12, 1963. The Logbooks for USS Kearsarge also indicate that the ship made passage from Kobe, Japan to Buckner Bay, Okinawa multiple times from July 6 to July 12, 1963. While the April 2019 CCK blog post mentioned by the Veteran does reference an Army report entitled "An Ecological Assessment of Johnston Atoll," a review of the actual Army report does not evidence storage of herbicide agents in Okinawa in 1963 while the Veteran served aboard on USS Kearsarge. The report reveals that the US Air Force (USAF) brought about 25,000 55-gallon drums of the chemical Agent Orange that originated from Vietnam to Johnston Island, Okinawa, for storage in 1972, nine years after the Veteran separated from service. See "An Ecological Assessment of Johnston Atoll" (2012), https://apps.dtic.mil/sti/pdfs/ADA571836.pdf (Last visited October 6, 2021). As such the weight of the evidence does not support actual exposure to herbicide agents in July 1963, when USS Kearsarge was located at Buckner Bay, Okinawa, while the Veteran was aboard the ship. Accordingly, the Board finds that the Veteran did not have service in Vietnam, to include within the 12 nautical mile territorial sea of the Republic of Vietnam, during the herbicide presumptive period from beginning on January 9, 1962 to May 7, 1975, and did not otherwise have actual exposure to herbicides during service; thus, the herbicide agent presumptions are inapplicable. The weight of the evidence is against finding that symptoms of diabetes mellitus were "chronic" in service. The service treatment records do not reflect any history, complaints, symptoms, findings, diagnosis, or treatment of diabetes mellitus during service. The July 1963 service separation examination report is silent for any clinical signs, symptoms, or findings suggestive of diabetes mellitus. The Board next finds that the weight of the evidence is against finding that symptoms of diabetes mellitus were "continuous" since service separation. Post-service treatment records show no complaints or symptoms of diabetes mellitus for many years after service separation. A February 1984 treatment note indicates that the Veteran was obese and had a history of hypertension for several years, but there was no mention of any symptoms or findings or diagnosis of diabetes. An undated patient profile and a March 2003 treatment note indicates that the Veteran was first diagnosed with diabetes in 1985 or 1986, 22 or 23 years after service separation. The record does not reflect an actual diagnosis of diabetes until July 1994, at which time the Veteran provided a history of diabetes for several years, which is consistent with other evidence that suggest diabetes first manifested about nine years earlier in 1985. See February 1984, July 1994, October 2001, March 2003. This same evidence also shows that symptoms of diabetes did not manifest to a compensable degree within one year of service separation to warrant presumptive service connection on that basis. Turning to the theory of direct service connection, after reviewing all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence demonstrates that diabetes mellitus, which began after service, is not otherwise related to active service, to include as due to exposure to hazardous chemicals such as jet fuel or gasoline during service. Information provided by BNP indicate that the duties of an airport serviceman in air transportation included direct exposure to JP5 aviation fuel for the purpose of receiving, transferring, and issuing JP5 aviation fuel to various locations throughout the ship; fueling and defueling aircraft; and performing maintenance and repair of refueling system. See June 2017 correspondence. The medical evidence of record indicates that the Veteran has a family history of diabetes, including his mother, brother, and paternal grandmother, and that the Veteran has a history of obesity and was advised that increased routine exercise and diet was recommended for control of diabetes. See February 1984, July 1994, September 2001 VA treatment records, November 2010 private treatment record. The Veteran has not provided a medical opinion relating his diabetes to exposure to hazardous chemicals such as jet fuel or gasoline. Moreover, no treating or examining medical provider of record has indicated a nexus between the Veteran's diabetes and the in-service exposure to jet fuel. The Board has considered evidence submitted in May 2021 regarding the hazards of jet fuel; however, the evidence submitted does not indicate that exposure to various jet fuels is etiologically related to the development of diabetes. The evidence indicates that exposure to various jet fuels presents the risk of skin and eye irritations, respiratory irritation, drowsiness/dizziness, is suspected to cause cancer, and could cause neurological disease, brain damage, cardiovascular disease, etc., or even worsen pre-existing diabetes, but does not reveal any correlation between exposure to jet fuels and the development of diabetes. See Moreover, the service treatment records do not indicate that Veteran had pre-existing diabetes mellitus upon service-entrance nor developed diabetes mellitus during service, as the competent and credible evidence of record shows that diabetes did not develop until about 1985, 22 years after the Veteran was removed from the in-service exposure to jet fuels. A VA examination and medical opinion was provided in February 2017. The VA examiner opined that diabetes mellitus was less likely than not (less than 50 percent probability) related to service, including jet fuel, jet exhaust, or other hazardous substances or chemicals. The VA examiner accurately noted that the Veteran's recollection that the planes he serviced and fueled were flying herbicides cannot be verified. Additionally, during the examination the Veteran acknowledged that he does not know the chemicals involved, but that in addition to fuel, he did pump other chemicals from barrels into jets, and he understood at the time that those chemicals were herbicides. Nonetheless, the Veteran stated that this suggested exposure to herbicides was not routine, as his main exposures were fuel, solvents, and oils when removing and repairing parts and pumps. The VA examiner opined that the Veteran's jet fuel exposure is not related to his diabetes, reasoning that jet fuel is not associated with type 2 diabetes. Pursuant to Toxnet and HSDB information on human health effects of jet fuel exposure, diabetes is not mentioned, nor is it found in animals exposed for research purposes. As it relates to whether there was sufficient exposure to some other chemical or herbicide (not agent orange) to contribute to the onset of diabetes, the VA examiner opined that this seems very unlikely, reasoning that diabetes is a very common disorder, with 9.3 percent of the population diagnosed according to a 2014 CDC report. The VA examiner noted that the of type 2 diabetes increases with age such that, by 65 and older, 26 percent have the disease. The VA examiner concluded that, because diabetes is a common disease and it has a clear association with lifestyle and diet factors, there is not good reason to look for extraordinary cause of the condition such as remote chemical exposures, more so in this case as the chemical exposures are very unclear in the record. The VA examiner concluded that while it is certainly possible that a chemical exposure increased the veteran's risk, it does not reach the level of "as likely as not." See February 2017 VA examination report. The Veteran contends that the VA examiner's opinion is insufficient because the VA examiner noted that the risk for diabetes increases with age, such as age 65, and he was diagnosed with diabetes in 1985 at age 44. See December 2018 Notice of Disagreement. With regard to this contention, the VA examiner did not indicate that the risk for diabetes was only higher among those at least the age of 65; the examiner noted that the condition is common in the population as a whole, noting that almost 10 percent of the population has diabetes and that the risk for diabetes increases with age, using as an example that 26 percent of those 65 and older have diabetes. The VA examiner also consulted medical literature to assess whether there is a likely correlation between exposure to jet fuels or other chemicals and the development of diabetes in opining that such a correlation is not probable. The VA examiner specifically noted that diabetes has a clear association with lifestyle and diet factors. In this case the evidence shows that the Veteran was already obese in 1984 prior to diagnosis of diabetes in 1985, he has a family history of diabetes, and that treating physicians have recommended diet and weight loss to control diabetes. See February 1984, July 1994, September 2001 VA treatment records; November 2010 private treatment records. Considered in light of the records as a whole, the Board finds the February 2017 VA opinion to be of significant probative value, as the VA examiner reviewed the claims file, assumed accurate facts that are consistent with the Board's findings of fact in this case, addressed the contentions regarding hazardous exposures during service, considered other risk factors for the development of diabetes in this case, and is supported the opinion by a reviewing medical literature, which is against a probable causal relationship between the Veteran's diabetes mellitus and active service, to include as to due to exposure to jet fuels or other chemicals during service. There is no nexus opinion of record that supports an etiological relationship between the Veteran's diabetes and service to weigh against the VA examiner's opinion. Based on the foregoing, the weight of the competent and credible evidence demonstrates no relationship between the current diabetes mellitus, which began years after service, and exposure to hazardous chemicals such as jet fuels during service. As the preponderance of the evidence is against service connection on all theories of service connection, the benefit of the doubt doctrine does not apply, and the claim for service connection for diabetes mellitus must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.