Citation Nr: 21006345 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 03-28 779A DATE: February 3, 2021 ORDER Service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. FINDING OF FACT The Veteran had active service aboard the U.S.S. Kitty Hawk, which was within 12 nautical miles of the Republic of Vietnam while the Veteran served aboard; therefore, the Veteran is presumed to have been exposed to herbicides. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for presumptive service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of the Veteran, who had active service from August 1961 to August 1965. While the appeal was pending, the Veteran died in November 2017. In December 2017, the Veteran’s appeal was dismissed due to the death of the Veteran. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. The appellant is now pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C. § 5121A. See March 2018 decision granting the request to substitute following a January 2018 request for substitution of claimant upon death of claimant (VA Form 21-0847). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2003 rating decision of the RO in New York, New York, which denied service connection for diabetes mellitus. In August 2006, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) at the RO in Albany, New York. That VLJ is no longer employed at the Board, and the Veteran was offered the opportunity for a new Board hearing. In June 2009, the Veteran testified at a personal Board hearing before the undersigned VLJ in Washington, D.C. Transcripts of the hearings are of record. In a December 2012 decision, the Board denied service connection for diabetes mellitus, to include as due to herbicide exposure. The Veteran appealed the Board’s December 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2013, the Court vacated the Board’s December 2012 decision pursuant to an Amended Joint Motion for Remand. The parties to the Amended Joint Motion for Remand requested that the Court vacate the Board’s decision on the basis that the Board’s decision did not adequately address whether the development undertaken by VA in its attempt to verify the Veteran’s contentions of in-service herbicide exposure was adequate, noting that the Board’s discussion was limited to verification of the use of tactical herbicides and did not adequately consider the Veteran’s contentions that he was exposed to herbicides through routine base maintenance, which would entail the use of a commercial herbicide agent. The parties noted that the theory of commercial herbicide exposure was not developed by VA as part of its duty to assist or addressed by the Board even though the Veteran indicated that the herbicide agent used at the San Diego Naval Base was Dalapon, a non-tactical herbicide agent. The parties further agreed that the Board’s determination that the Veteran’s assertions of herbicide exposure was not credible was inadequate. The Amended Joint Motion for Remand instructed the Board to consider whether additional development was necessary based on the Veteran’s statements of exposure to an herbicide agent. In May 2014, the Board remanded the appeal to the RO for further development pursuant to the Amended Joint Motion for Remand. Specifically, the May 2014 Board remand directives instructed the RO to attempt to document the use of commercial herbicides, including Dalapon, at the San Diego Naval Base, and if commercial herbicides were used, the RO was instructed to obtain a VA medical opinion as to whether the Veteran’s diabetes mellitus was etiologically related to in service exposure to commercial herbicides. In an April 2018 decision, the Board found that the May 2014 remand directives were complied with and the matter had been properly returned to the Board for appellate adjudication. In June 2017, the Board sought a Veterans Health Administration (VHA) advisory medical opinion from an internist, which was received in September 2017. In October 2017, the appellant was sent appropriate notice of the opinion, and was given 60 days to respond. 38 C.F.R. § 20.903. The Board again denied service connection for diabetes mellitus in an April 2018 decision, finding, in pertinent part, that the Veteran did not have service in the Republic of Vietnam and was not presumptively or actually exposed to tactical herbicides during service. The appellant appealed the April 2018 Board decision to the Court. In an Order dated July 2019, the Court granted a Joint Motion for Remand (JMR), which again remanded the issue on appeal back to the Board for development consistent with the JMR. Specifically, the parties agreed that, in light of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the Board needed to address whether the Veteran’s service on the USS Kitty Hawk brought him within the 12 nautical mile territorial sea of the Republic of Vietnam, particularly in light of the Veteran’s prior testimony. In March 2020, the Board again remanded the instant matter for additional development in compliance with the June 2019 JMR. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to contact the appropriate records custodians to ascertain whether the U.S.S. Kitty Hawk was within the 12 nautical mile territorial sea of Vietnam during the Veteran’s service. As the instant matter grants service connection for diabetes mellitus, type II, for accrued benefits purposes, which is a complete grant as to the issue on appeal, the Board need not address remand and/or JMR compliance at this time. See Forcier v. Nicholson, 19 Vet. App. 414 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for diabetes mellitus, type II, for accrued benefits purposes, no further discussion of VA’s duties to notify and assist is necessary. Service Connection for Diabetes Mellitus, Type II Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a),(d). Diabetes mellitus, type II, is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. “Service” in the Republic of Vietnam includes (but is not limited to) duty on aircraft carriers and other ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio, 913 F.3d 1371. Type II diabetes mellitus or adult-onset diabetes) is on the list of herbicide presumptive diseases. 38 C.F.R. § 3.309(c). 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). Prior to death, the Veteran sought service connection for diabetes mellitus, type II, on the basis of herbicide exposure during service. The Veteran contended that the USS Kitty Hawk was within 12 nautical miles of the Republic of Vietnam while he was aboard ship. Initially, the Board finds that, prior to death, the Veteran was diagnosed with diabetes mellitus, type II. A February 2001 VA Agent Orange examination report reflects a diagnosis of diabetes, and a history of first diagnosis in 1993. Private medical records indicate the Veteran was first diagnosed with diabetes mellitus in July 1994. Next, the Board finds the evidence at least in equipoise on the question of whether, during service, the U.S.S. Kitty Hawk was within 12 nautical miles of the Republic of Vietnam while the Veteran served aboard. As such, the Veteran is presumed to have been exposed to the herbicide Agent Orange. In June 2001, the Veteran filed a claim for service connection for diabetes due to agent orange exposure while serving aboard the U.S.S. Kitty Hawk in the waters off the coast of the Republic of Vietnam. Per the Board’s prior April 2018 decision, the Board has previously found that ship histories show that the U.S.S. Kitty Hawk was stationed off the coast of Vietnam from May 1964 to June 1964 in the South China Sea. Further, the Board found that the Veteran had offshore, blue water service aboard the U.S.S. Kitty Hawk in the South China Sea from May 1964 to June 1964, without operations on inland waterways. As such, the Question before the Board is whether the U.S.S. Kitty Hawk entered within 12 nautical miles of the Republic of Vietnam while the Veteran was stationed aboard. For the reasons discussed below, the Board resolves doubt to find that the ship did enter within 12 nautical miles of the Republic of Vietnam during the Veteran’s service. In the August 2003 notice of disagreement (NOD), approximately 16 years prior to the United States Court of Appeals for the Federal Circuit’s (Federal Circuit) decision in Procopio, the Veteran advanced that during service the U.S.S. Kitty Hawk approached within three miles of the coast of the Republic of Vietnam. At the original August 2006 Travel Board hearing, the Veteran credibly testified that the U.S.S Kitty Hawk approached within three miles of the coast of the Republic of Vietnam. The Veteran testified to being close enough to see the soldiers fighting on the ground. Subsequently, at the June 2009 Board Central Office hearing, the Veteran again credibly testified that the U.S.S Kitty Hawk approached within three miles of the coast of the Republic of Vietnam. Again, the Veteran testified to being able to see the soldiers fighting. The Veteran also testified to seeing the trees and the mortar shells being fired back and forth. As discussed in the introduction, VA received a VHA opinion in September 2017. Per the VHA opinion, the examiner opined that it was unlikely that the Veteran’s diabetes was due to commercial herbicide exposure; however, the examiner also explained that the evidence of record did not indicate that the Veteran fit into any of the other known risk categories that dramatically increase the likelihood of developing diabetes. In a March 2020 brief, the appellant’s representative argued that the Veteran’s testimony and lay statements prior to death, specifically that he was able to see trees and combat from the ship, shows that the Veteran was within the territorial waters of Vietnam. VA received a records research response and copies of the deck logs in November 2020. Per the records research response, a professional researcher from the Veterans Benefits Administration was asked to verify whether the Veteran was 12 nautical miles from the coast of the Republic of Vietnam during service. Upon reviewing the records, the VA researcher noted that, during the period from January and July of 1964, the U.S.S Kitty Hawk participated in operations in the South China Sea; however, at the conclusion of the review, the VA researcher found that the evidence did not document that the U.S.S. Kitty Haw was anchored/docked in a qualifying bay/harbor or traveled along inland waterways in the Republic of Vietnam. The Board notes that the VA researcher did not specifically address whether the operations in the South China Sea ever brough the Veteran within 12 nautical miles of the Republic of Vietnam, as opposed to anchoring or docking on shore. As such, the records research response is inadequate for VA rating purposes. Nonetheless, as the instant decision finds that the USS Kitty Hawk was within 12 nautical miles and grants service connection, the Board need not remand for an addendum record evaluation. In sum, deck logs and other relevant evidence of record reflect that the Veteran served aboard the U.S.S Kitty Hawk during service. During said service, the U.S.S. Kitty Hawk was stationed off the coast of Vietnam and performed operations from May 1964 to June 1964 in the South China Sea. From 2001 until death in 2017, the Veteran credibly advanced, in both written lay statements and testimony, that during these operations the U.S.S. Kitty Hawk would approach within three miles of the Coast of the Republic of Vietnam. As the Veteran credibly advanced being able to see the tree line and observe soldiers fighting, the Board finds that the Veteran’s ship must have been within 12 nautical miles of the Republic of Vietnam on one or more occasions. As the Board finds that the Veteran served aboard a ship that was within 12 nautical miles of the Republic of Vietnam, the Veteran is presumed to have been exposed to herbicides. See Procopio, 913 F.3d 1371. The above finding is supported by a December 2017 private opinion letter from an internist who had examined and treated the Veteran prior to death. Per the opinion letter, the private physician explained that, during the course of his career, he had seen hundreds of cases of diabetes mellitus. Based on his experiences, diabetes caused by Agent Orange exposure was always more pernicious, pervasive, and severe than diabetes due to other factors. The private physician specifically noted that the Veteran’s diabetes symptoms near the time of death were pervasive and severe. As such, the private physician opined it more likely than not that the Veteran’s diabetes mellitus, type II, was due to herbicide exposure. Further, in a November 2017 statement, the appellant, who met and married the Veteran in October 1967, explained that, in her capacity as a registered nurse, she observed that the Veteran had always displayed health symptoms that were consistent with herbicide exposure. The Veteran was diagnosed with diabetes melitis, type II, which is presumptively associated with herbicide exposure. For the reasons discussed above, the Board has found that during service the Veteran served aboard a ship that was within 12 nautical miles of the Republic of Vietnam. Resolving reasonable doubt in the appellant’s favor, such evidence warrants the grant of service connection for diabetes mellitus, type II, on a presumptive basis. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309; Procopio, 913 F.3d 1371. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.