Citation Nr: 21064783 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-27 791 DATE: October 21, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide agent exposure, is denied. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran's CAD and diabetes mellitus did not manifest in service, nor did they manifest to a compensable degree within one year of separation from service. 2. The preponderance of the evidence of record is against a finding that the Veteran had herbicide agent exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2019, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. Entitlement to service connection for CAD, to include as due to herbicide agent exposure 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure The Veteran contends that he is entitled to service connection for heart disability and diabetes mellitus to include as due to exposure to herbicide agents during service in the Republic of Vietnam. At the September 2019 Board hearing, the Veteran testified that he served aboard the USS Intrepid in the waters offshore from Vietnam. Exposure to herbicide agents was previously only conceded when there was service in the Republic of Vietnam which meant actual service in the country of Vietnam from January 9, 1962, to May 7, 1975, and included service in the waters offshore, or 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); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). For purposes of applying the presumption of exposure to an herbicide agent under 38 C.F.R. §3.307(a)(6)(iii), VA applied a rule that the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. More recently, service in Vietnam has been interpreted to include service in the territorial waters of Vietnam, up to 12 nautical miles offshore in the territorial sea of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). VA is authorized to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by VA and are consistent with those laws. 38 U.S.C. §501(a). That includes rules regarding the nature and extent of proof and evidence required to establish the right to benefits, and the methods of making investigations. 38 U.S.C. §501(a)(3). To date, VA has not issued rules or guidance to aid in determining whether a veteran served in the territorial waters of the Republic of Vietnam. The February 2020 remand requests included instructions to attempt to verify whether the Veteran was exposed to herbicide agents during service aboard the USS Intrepid through the United States Army Joint Services Records Research Center, in accordance with the expansion of the presumption of exposure to herbicide agents, to include service within 12 nautical miles in the territorial sea of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). A December 2020 memorandum indicates that the Veteran was on the USS Intrepid (CVA- 11) between August 1968 and April 1970. The Veteran did not set foot in the Republic of Vietnam based on evidence of record. The USS Intrepid did not travel up the inland waterways of the Republic of Vietnam based on evidence of record. The USS Intrepid was not in the territorial waters of the Republic of Vietnam based on evidence of record and based on deck log coordinates. The reviewing agency indicate that no evidence was located to support documentation of the claimed exposure. A January 2021 memorandum indicates that exposure to herbicide agents cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. In February 2021 correspondence, the Veteran further reiterated that the ship was within 12 miles of North Vietnam. The Veteran reasoned that the Intrepid, as a carrier, was required to be no closer than 12 miles from the mainland. "The 12-mile distance requirement is the overlapping stipulation for two types of naval vessels, carriers and smaller ships." The Veteran contends that the instruments used in pinpointing the location for ships 53 years ago was not nearly as accurate as GPS instruments are today. The Veteran's service records do not indicate that he served in Vietnam, and JSRRC noted that the ship the Veteran was stationed on did not go within 12 nautical miles of Vietnam during the Veteran's time aboard the ship. While the Veteran contends that current GPS locating is more accurate that location techniques used during the time in service, the deck logs of the USS Intrepid for the time the Veteran was aboard were reviewed, and based on that review indicated that the vessel did not go within 12 nautical miles of the shore of Vietnam. The Board finds that is the most persuasive evidence of record. The Board finds that the preponderance of the evidence is against a finding that the Veteran serve in the Republic of Vietnam or within 12 nautical miles of shores during service. The Board concludes that, while the Veteran has a diagnosis of CAD and diabetes mellitus, the preponderance of the evidence is against finding that those disabilities can be presumed to be related to exposure to herbicides because claimed exposure to herbicides cannot be corroborated. The Board further finds that the evidence of record does not show that CAD or diabetes mellitus began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide agent exposure. There have been no assertions of direct service connection. The evidence also does not show that cardiovascular disease or diabetes mellitus manifested to a compensable degree within one year following separation from service. Both disabilities were diagnosed many years after separation from service. The Veteran has not submitted any competent evidence that related CAD or diabetes mellitus to service. While the Veteran believes his CAD and diabetes mellitus is related herbicide agent exposure in-service, the Board reiterates that the preponderance of the evidence weighs against findings that the USS Intrepid was within 12 miles of the Vietnam mainland and that the Veteran had any other herbicide agent exposure. The Veteran is not competent to provide an etiology opinion relating CAD or diabetes mellitus to service or any event, injury, disease, or exposure during service because he is not shown to have the requisite medical training. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents during service. The preponderance of the evidence is against a finding that CAD or diabetes mellitus were incurred in service or manifested within one year following separation from service. Therefore, the claims must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.