Citation Nr: 21069054 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-36 928 DATE: November 17, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for a heart disability, including ischemic heart disease, is denied. Entitlement to service connection for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam or offshore territory of the Republic of Vietnam. He was not exposed to herbicide agents during active service. 2. Diabetes mellitus, Type II did not manifest in service or within one year of separation from service and is not otherwise attributable to service. 3. A heart disability did not manifest in service or within one year of separation from service and is not otherwise attributable to service. 4. Prostate cancer did not manifest in service or within one year of separation from service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. A heart disability was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Prostate cancer was not incurred in or aggravated by service, nor may the disability be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1958 to March 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 decision the Board remanded the claims for service connection for diabetes mellitus, ischemic heart disease, and prostate cancer for further development. The December 2017 decision remanded entitlement to service connection arthritis and a lung condition, including asthma and COPD. A June 2020 rating decision granted service connection for COPD and chronic bronchitis with asthma. A February 2021 rating decision granted service connection for rheumatoid and degenerative arthritis disabilities. This represented a full grant of those benefits originally sought on appeal, and entitlement to service connection for a lung condition and arthritis are no longer before the Board. SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131. In general, to establish a right to compensation for a present disability, a Veteran 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 the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam between January 9, 1962 and May 7, 1975, including type II diabetes mellitus, ischemic heart disease, and prostate cancer, will be presumed to have been incurred in service even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6); 3.309 (e). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). The Blue Water Navy Vietnam Veterans Act of 2019, codified at 38 U.S.C. § 1116A, became effective January 1, 2020. The Act allows diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam that became manifest in a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, to be considered to have been incurred in or aggravated by such service. For certain chronic diseases, including diabetes mellitus, arteriosclerosis, and malignant tumors, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for diabetes mellitus. 2. Service connection for a heart disability. 3. Service connection for prostate cancer and residuals. The Veteran seeks service connection for type II diabetes mellitus, prostate cancer and its residuals, and a heart disability, including ischemic heart disease. We note the Veteran also has congestive heart failure and other non-ischemic heart diseases. His contention is that the disabilities were caused by exposure to herbicides during his service onboard the U.S.S. Saratoga. After reviewing the evidence, the Board concludes that service connection is not warranted for diabetes mellitus, prostate cancer, or a heart disability. The Veteran was not exposed to herbicides during his service, and the diseases are not otherwise related to service. Service treatment records are absent any relevant complaints, treatments, or diagnoses. All relevant systems were evaluated as clinically normal in the March 1962 separation examination. Personnel records indicate the Veteran served onboard the U.S.S. Saratoga from approximately July 1959 through March 1962. Post service treatment records show the Veteran was diagnosed with diabetes mellitus in approximately 1980. A private disability benefits questionnaire (DBQ) indicates the Veteran underwent a prostatectomy in May 2001 for prostate cancer. A January 2005 carotid doppler study showed stenosis of the right carotid artery and mild atherosclerotic plaque of the left carotid artery, with evidence of a prior myocardial infarction noted in a January 2005 stress imaging test. The Veteran underwent right coronary artery and left descending artery cardiac catheterization in September and October 2008 and was assessed with coronary artery disease. Another private DBQ shows chronic ischemic heart disease and congestive heart failure diagnosed in October 2008. Private treatment records show atherosclerotic heart disease with stent placements in 2008 and a history of coronary artery disease. Subsequent records also note congestive heart failure with recurrent chest pains on exertion. In January 2015 the Veteran submitted documentation showing the U.S.S. Saratoga was in the Mediterranean Sea and participated in the Cuban Missile Blockade during the period he served onboard the ship. In October 2015, the Veteran submitted additional documents stating that the U.S.S. Saratoga underwent annual cruises to the Mediterranean Sea during the Veteran's service, and that the remainder of the time the vessel operated off the coast of Florida or was in port undergoing restricted availability. A November 2018 communication from the National Archives and Records Administration (NARA) stated they were unable to locate any references to the U.S.S. Saratoga launching C-123 aircraft. The NARA also noted that C-123 aircraft were flown by either the Air Force or the Coast Guard, that the variants were ground-based and not equipped for aircraft carrier launchings, and that Operation Ranch Hand did not begin until 1962. In January 2021 VA issued a memorandum determining the Veteran's exposure to herbicides could not 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. The Veteran has diabetes mellitus. He had prostate cancer with a prostatectomy in approximately 2001 with residuals. The Veteran has ischemic heart disease, atherosclerotic heart disease, and congestive heart failure. The issue before the Board is whether these diseases and disabilities are related to service, to include whether the diseases are due to exposure to herbicides. The Board concludes that the Veteran was not exposed to herbicide agents during his service. As will be explained, he cannot be presumed to have been exposed to herbicide agents during his service, and the preponderance of the evidence is against finding the Veteran was actually exposed to herbicide agents during his service. The Veteran's personnel files show he did not serve in the Republic of Vietnam, to include its waters, and he does not contend otherwise. Although the Veteran served onboard the U.S.S. Saratoga after January 9, 1962, there is no evidence the vessel was "offshore" of the Republic of Vietnam within the meaning of 38 U.S.C. § 1116A during the period the Veteran was onboard. Deck logs from the U.S.S. Saratoga from January through March 1962 show the vessel was offshore Italy and France at various locations in the Mediterranean Sea during this period. The Veteran has not stated or provided other evidence that the U.S.S. Saratoga was within 12 nautical miles of the shore of the Republic of Vietnam during his service. As noted above, the evidence the Veteran has submitted regarding the location of the U.S.S. Saratoga during his service establishes the vessel was in the Atlantic Ocean, the Mediterranean Sea, offshore Florida and Cuba, or at port in the United States during the entirety of his service. The Veteran has reported that the U.S.S. Saratoga may have carried C-123 aircraft, thereby exposing him to herbicides. An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. See 38 C.F.R. § 3.307 (a)(6)(v). Here, the presumption relating to C-123 aircraft is inapplicable because the Veteran served in the Navy and not in the Air Force or Air Force Reserve. Additionally, there is no credible evidence that the Veteran was exposed to herbicides during his service. The Veteran primarily contends that he may have been exposed to herbicides because aircraft onboard the U.S.S. Saratoga may have flown over Vietnam, some aircraft may had been damaged in Vietnam, or some aircraft may have sprayed Agent Orange in Vietnam, including C-123s. See, e.g., December 2014 Statement in Support of Claim, October 2015 Notice of Disagreement. First, there is no evidence that the Veteran encountered any C-123 aircraft during his service onboard the U.S.S. Saratoga. As reported in the October 2015 Notice of Disagreement, the Veteran "feels, but is not sure, that the ship may have had C-123 aircraft aboard." These statements are speculative at best and do not support finding that the Veteran was exposed to herbicide agents during his service. Additionally, the November 2018 communication from the National Archives and Records Administration (NARA) stated they were unable to locate any references to the U.S.S. Saratoga launching C-123 aircraft. The NARA also noted that C-123 aircraft were flown by either the Air Force or the Coast Guard, that the variants were ground-based and not equipped for aircraft carrier launchings, and that Operation Ranch Hand did not begin until 1962. As noted above, the Veteran served in the Navy, so the C-123 presumption is inapplicable. Operation Ranch Hand began at the end of the Veteran's service while he served on the U.S.S. Saratoga, and the probative evidence states C-123 aircraft were not onboard the U.S.S. Saratoga. Regarding aircraft fires and damage, the Board remanded these claims in December 2017 to verify the Veteran's reports of burning aircrafts arriving at the U.S.S. Saratoga during his service. No positive response was provided from either the VA Personnel Information Exchange System or the Joint Services Records Research Center. Deck logs from the U.S.S. Saratoga do show that an aircraft fire was reported on February 21, 1962 when hydraulic fluid came into contact with a hot afterburner. Another aircraft fire was reported on March 3, 1962. However, we reiterate that there is no credible evidence that herbicide agents were present onboard the U.S.S. Saratoga during the Veteran's service, or that that the aircraft the Veteran' encountered were involved with herbicides, to include the reported fires. While the Veteran's statements submitted in support of the claims state aircraft onboard the U.S.S. Saratoga had flown sorties over Vietnam, had been involved in spraying Agent Orange, or were otherwise exposed to herbicides, these statements are speculative. The Board finds the Veteran's vague statements of possible herbicide exposure are not competent or credible evidence that he was exposed to herbicides during service. More specifically, there is no proof of herbicide agents aboard the ship and no proof of herbicide exposure while he was aboard the ship. His theory of such exposure is unsupported and is not credible evidence. Documentation the Veteran submitted in support of his claim indicates the U.S.S. Saratoga was at port, in the Mediterranean Sea or the Atlantic Ocean, and off the coast of Florida and Cuba when the Veteran was onboard. There is no evidence any of the aircraft onboard the U.S.S. Saratoga during the Veteran's service sprayed herbicide agents in Vietnam or were otherwise present in Vietnam. We note that the Veteran could not provide dates relating to any aircraft fire or damage, and do not find speculative statements that an unidentified fires or damaged aircraft could have exposed him to herbicide agents is credible evidence that he was in fact exposed to herbicides. The available deck logs from the Veteran's service between January and March 1962 are absent any fires or relevant notations of aircraft involvement in Vietnam. Given the foregoing, the Board finds that further remand to attempt to verify any exposures to herbicides, to include due to aircraft fires or exposure to aircraft used to spray Agent Orange, is not warranted. The Veteran did not serve in the Republic of Vietnam or within the off shore waters of the Republic. There is no evidence he encountered C-123 aircraft during service, and he is not an Air Force Veteran. The Board notes the Veteran's assertion that aircraft onboard the U.S.S. Saratoga were in Vietnam or that fires exposed him to herbicides. However, the statements are unsupported conjecture, and any suggestion that the Veteran was exposed to herbicides onboard the U.S.S. Saratoga is unsupported. There is no basis for a remand which would only result in imposing additional burdens on the VA with no benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds no further assistance in obtaining information relating to herbicide exposure would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C. § 5103A (a)(2). In sum, the Veteran is not presumed to have been exposed to herbicide agents during his service. As such, the law and regulations pertaining to presumptive service connection based on exposure to herbicides are not applicable to this appeal. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Furthermore, there is no credible evidence that the Veteran was exposed to herbicides during his service. As such, the Board finds the Veteran was not exposed to herbicide agents, including Agent Orange, during his service. Prostate cancer, diabetes mellitus, and a heart disability are not due to herbicide exposure. The unavailability of the herbicide presumptions does not preclude the Veteran from otherwise establishing that diabetes mellitus, prostate cancer, and a heart disability are related to service. Furthermore, diabetes mellitus, malignant tumors, and arteriosclerosis are considered chronic diseases. However, the preponderance of the evidence is against these other theories of entitlement to service connection for these disabilities. There is no evidence that diabetes mellitus, prostate cancer, or a heart disability were manifest during service or within one year of separation. Service treatment records are silent for any relevant symptoms, and the March 1962 separation examination shows the Veteran's chest, heart, vascular system, endocrine system, genitourinary system, anus, and rectum were clinically normal at separation. The Veteran does not generally contend that diabetes mellitus, prostate cancer, or a heart disability were present during service. Additionally, there is no competent evidence that any of the relevant diseases are due to any other exposures during the Veteran's service, nor does he generally contend there is any such relationship. Post-service treatment records show that diabetes mellitus has been present since 1980 at the earliest. A private disability benefits questionnaire indicates the Veteran underwent a prostatectomy in May 2001 for prostate cancer. Private treatment records first indicate the Veteran had heart disease in January 2005 following a syncope episode. None of these disabilities were noted during service or within one year of separation from service. All available medical evidence shows the Veteran's diabetes mellitus, prostate cancer, and heart disabilities had their onset many years after service. The Veteran did not have characteristic manifestations of these disabilities during service or within one year of separation. 38 C.F.R. § 3.303 (b). The Veteran has not been provided with a VA examination or nexus opinion with respect to any of these claims. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. Here, no examination or opinion is necessary. The Veteran has diabetes mellitus, ischemic heart disease and congestive heart failure, and has had prostate cancer. However, there is no evidence of any relevant event, injury, or disease during service or during an applicable presumption period. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the Veteran did not serve in the Republic of Vietnam or within the waters of the Republic of Vietnam. He was not exposed to herbicide agents during service. The claimed diseases were not manifest in service or within one year of separation and there is otherwise no relationship to service. The preponderance of the evidence is against the claims for service connection for diabetes mellitus, prostate cancer, and a heart disability. The benefit of the doubt rule is not applicable, and the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.