Citation Nr: 21069571 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-11 919 DATE: November 18, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, as a result of in service herbicide agent exposure, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to service-connected diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus, type II, and the evidence is at least evenly balanced as to whether he served in the 12-nautical-mile territorial sea of the Republic of Vietnam during the Vietnam era. 2. The medical evidence establishes a nexus between the peripheral neuropathy of the Veteran's upper extremities and right lower extremity and his now service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, as a result of in service herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the right upper extremity, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy of the left upper extremity, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for peripheral neuropathy of the right lower extremity, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to November 1966. This appeal to the Board of Veteran's Appeals (Board) arose from a November 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Previously, in September 2016, VA associated official service department records that had existed but had not been associated with the claims file when VA first decided the claim for service connection for diabetes mellitus, type II, in December 2010. These records were relevant to the claim for service connection for diabetes mellitus, type II, due to in-service exposure to herbicide agents. "At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim "on the merits de novo." Thus, the claim for service connection for diabetes mellitus, type II, is considered pending since the time of his original claim for service connection. 38 C.F.R. § 3.156(c); Vigil v. Peake, 22 Vet. App. 63 (2008). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is associated with the file. In May 2021, the Board granted service connection for an unspecified depressive disorder and remanded the remaining claims for further evidentiary development. As he has not yet filed a NOD contesting either the effective date or the level of compensation assigned following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). Service connection diabetes mellitus, type II & peripheral neuropathy of the right lower and both upper extremities The Veteran asserts that he developed diabetes mellitus as a result of exposure to herbicide agents, to include Agent Orange, during his active service. His neuropathy is claimed to be secondary to his diabetes mellitus. The evidence of the record shows that he has current diagnoses of diabetes mellitus and diabetic peripheral neuropathy. Throughout the appeal, he has asserted that he was exposed to herbicide agents while serving onboard the U.S.S Kearsarge. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Blue Water Navy Vietnam Veterans Act of 2019 created a new section of the U.S. Code, 38 U.S.C. § 1116A, which provides that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting particular points. The law provides specific latitudes and longitudes in this regard. In the current appeal, the Veteran's military records shows that he was authorized to wear the Armed Forces Expeditionary Medal for service in the Vietnamese Waters for the periods of August 1964 to September 1964. He was also authorized to wear the medal and ribbon for duty performed on board while in an area of operations in engaged in direct support of Vietnam operations in October 1964. See September 2016 Military Personnel Records. The Blue Water Ship Locator Dashboard showed that, from December 1963 to November 1966, the U.S.S Kearsarge was located around, or right at, the 12 nautical line limit. It did not show that the ship was within the Blue Water territory. See July and August 2021 Logbooks. In the July 2021 Records Research Response, it was concluded that herbicide exposure could not be conceded based on the ship locator tool or other VBA approved tools. It was noted that the following sources were reviewed in an attempt to substantiate the Veteran's claimed exposure: the 1963, 1964 and 1966 Command History Reports; the 1965 Aviation Historical Summary submitted by the U.S.S Kearsarge; and the Dictionary of Naval American Fighting Ships history of the U.S.S Kearsarge. The records from the Naval History and Heritage Command (NHHC) were requested regarding Naval Command History Reports for 1965. NHHC was unable to locate the 1965 Command History Report for the U.S.S Kearsarge. It was concluded that no evidence was located to support documentation of the claimed exposure event. See July 2021 Other. Based on this, in August 2021, the AOJ found that herbicide agent exposure could not be conceded. See August 2021 VA Memo. In another August 2021 correspondence, the agency of original jurisdiction (AOJ) informed the Veteran of the efforts made to obtain records to confirm active service within the territorial sea extending 12 nautical miles from the shores of Vietnam. The Veteran asserts that the U.S.S. Kearsarge carried troops back from Vietnam. He believed that the gear that troops wore had toxins on them and that the water used may have had toxins. See March 2021 Hearing Transcript. In a relevant advisory opinion, VA's General Counsel noted that, although VA could promulgate a regulation requiring specific types of evidence supporting a veteran's bare assertion that his/her ship entered the territorial sea of Vietnam, "VA is required to consider 'all information and lay and medical evidence of record in a case,' so VA can never limit its inquiry to the point of precluding the full and fair consideration of lay evidence on all matters that lay evidence is capable of establishing." VAOPGCADVIS 1-19 (Mar. 29, 2019), at 2 (quoting 38 U.S.C. § 5107 (b)). While VA can promulgate regulations delineating when lay evidence can establish presence within the territorial sea of Vietnam and when it cannot, "any such rule or policy could not preempt existing laws governing the consideration of evidence in VA benefits cases." Id. at 3. Even if VA compiled a list of ships that were in the territorial waters of Vietnam or promulgated a corroboration requirement, the Board would still have to consider "all information and lay and medical evidence of record." Id. (citing 38 U.S.C. § 5107 (b)). Here, the Board acknowledges that the evidence as to whether the Veteran had service within the 12 nautical mile territory contemplated by 38 U.S.C. § 1116A is not entirely clear or definitive. However, after considering the evidence in its totality, the Board finds that the evidence is at least evenly balanced as to whether he served offshore of the Republic of Vietnam. The records establish that he served in 'Vietnamese waters" during the applicable time period. The Blue Navy Water Ship Locator Tool shows that his ship was at, or right outside of, the 12 nautical mile territorial sea. While this finding does not provide a definitive location within the 12 nautical mile territorial sea, the Board finds that it is within the scope of the ship's service, especially with documented locations so close to the territorial line, that the ship was at some point within the 12 nautical miles during the Veteran's service onboard the ship. In reaching this decision, the Board has also considered the Veteran's statements regarding the alleged exposure. As a reasonable doubt has arisen, it must be resolved in his favor. Thus, the Board finds that the Veteran served offshore in the Republic of Vietnam and that exposure to herbicide agents, to include Agent Orange, is conceded. Service connection based on herbicide agent exposure will be presumed for certain diseases that become manifest to a compensable degree at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Diabetes mellitus, type II, is one of the diseases listed under 38 C.F.R. § 3.309(e). As the Veteran is presumed to have been exposed to herbicide agents based on the finding that he had qualifying service in the waters of the Republic of Vietnam and has now developed diabetes mellitus, type II, after service, service connection for this disorder, based on in-service herbicide agent exposure, is presumed. As the Board has granted service connection for diabetes mellitus, type II, and as the peripheral neuropathy of the Veteran's right lower extremity and both upper extremities has been noted to be secondary to his diabetes mellitus, type IIall such peripheral neuropathy has been diagnosed as diabetic peripheral neuropathy, service connection is warranted on a secondary basis for the peripheral neuropathy of his upper extremities and his right lower extremity. Accordingly, the Board finds that criteria for service connection have been met for all four issues on appeal. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.