Citation Nr: 21020827 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-14 759 DATE: April 8, 2021 ORDER Entitlement to service connection for diabetes, to include as due to herbicide exposure and/or exposure to other harmful chemicals or toxins is denied. Entitlement to service connection for prostate cancer to include as due to herbicide exposure and/or exposure to other harmful chemicals or toxins is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes and/or prostate cancer is denied. Entitlement to service connection for numbness in the legs and feet, to include as secondary to diabetes is denied. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam and, thus, he is not presumed to have been exposed to herbicide agents. 2. Diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident in service to include exposure to herbicide agents and did not manifest within one year of discharge. 3. Prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service to include exposure to herbicide agents and did not manifest within one year of discharge. 4. Erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident in service to include exposure to herbicide agents, did not manifest within one year of discharge, and is not caused or aggravated by a service-connected disability. 5. Numbness in legs and feet is not shown to be causally or etiologically related to any disease, injury, or incident in service to include exposure to herbicide agents, did not manifest within one year of discharge, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for numbness in legs and feet have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to June 1970. These matters are on appeal to the Board of Veterans’ Appeals (Board) form an October 2012 rating decision. A hearing was conducted by the undersigned Veterans Law Judge in May 2017. The claims were remanded by the Board in January 2018 and June 2020. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Certain diseases, such as diabetes mellitus and prostate cancer, may be service connected on a presumptive basis if manifested in a Veteran exposed to herbicide agents during service, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1), (2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f). Even if the claimed disability cannot be awarded under 38 C.F.R. § 3.309 (d) or under 38 C.F.R. § 3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service, including presumptive service connection for chronic diseases. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran contends he was exposed to Agent Orange and other harmful chemicals and toxins while aboard the USS Kitty Hawk, as well as boots on ground in Vietnam on liberty. Personnel records confirm the Veteran served aboard the USS Kitty Hawk from December 1968 to June 1970. Thus, the dispositive issue is whether the Veteran served in the Republic of Vietnam or was otherwise exposed to herbicide agents. The Veteran’s DD-214 reflects receipt of a Vietnam Service Medal with one bronze star, and a Republic of Vietnam Campaign Medal. His listed MOS was machinist mate/marine mechanic. His personnel records confirm he served aboard the USS Kitty Hawk. In a September 2011 statement, the Veteran stated that he was unsure of his exposure to Agent Orange during his military service, but he has suffered for years with several physical and mental disabilities. In September 2012, a VA Memorandum made a formal finding that the available information required to corroborate exposure to herbicides was insufficient to send for meaningful research by the Joint Services Records Research Center (JSRRC) , Marine Corps, National Archives, and Records Administration (NARA) records. In his December 2012 Notice of Disagreement, the Veteran stated he felt the chemicals, toxins, and potentially harmful foreign substances he was exposed to aboard the ship and during liberty in foreign lands played a contributing factor in the development of diabetes. In his May 2017 hearing, the Veteran stated he was on land in the Republic of Vietnam when he would get three-day passes to leave the ship. A June 2017 statement from A.L., a fellow service-member, reflects that he and the Veteran served in the “Vietnam era in the Philippines and Japan.” Another statement from E.M. reflects that he and the Veteran served in the combat zone of Vietnam, and that the Veteran visited inland in Olongapo, Philippines, Sasebo, Japan, Hong Kong, and Korea on several occasions. In the January 2018 Board remand, it was noted that the Veteran’s personnel records reflect the dates he was stationed aboard the USS Kitty Hawk as well as a period of unauthorized absences from the ship from November 1, 1969 to November 3, 1969, which was eventually charged as leave. Thus, the Board found that sufficient information may have been received to conduct a meaningful search. The claims were remanded for a meaningful search of the ship history, deck logs, and leave records for the USS Kitty Hawk from December 1968 to June 1970 to determine whether he had service on the inland waterways of the Republic of Vietnam; whether his service on the waters offshore involved duty or visitation in the Republic of Vietnam; and/or whether harmful chemicals or toxins were carried or utilized on the ship to which he would have been exposed. The June 2020 Board decision found that the requested development, particularly regarding the Veteran’s exposure to other harmful chemicals or toxins in service, had not been thoroughly conducted, warranting an additional remand. In a December 2020 statement, the Veteran explained that he served and was stationed in places like Olongapo, Philippines, Sasebo, Japan, Hong Kong, and Korea. He served wherever needed, sometimes in general quarters for days in Korea and Vietnam. He was responsible for loading bombs onto fighter jets, though in other parts of the record indicates he had varying responsibilities, to include as an electrician. He reiterated his belief that his medical conditions are a result of Agent Orange exposure. An August 2019 VA memorandum regarding the Veteran’s documented leave during service reflects that during his December 1968 leave, the USS Kitty Hawk was moored in San Diego. During leave from September to October 1969, the USS Kitty Hawk was moored at Puget Sound Naval Shipyard while the Veteran was in Bremerton, Washington. During his November 1969 absences that were eventually charged as leave, the USS Kitty Hawk was again moored at Puget Sound Naval Shipyard. After review of the deck logs, the memorandum concluded there was no evidence that the Veteran took leave or went boots on ground from the Kitty Hawk while deployed to Vietnam waterways, specifically Yankee Station, the Tonkin Gulf on multiple occasions. The claims were referred to JSRRC for herbicide/Agent Orange exposure review. A professional researcher from the Records Research Center completed comprehensive research on the Veteran’s claimed exposure. The 1968 command history of the USS Kitty Hawk reveals the ship departed San Diego en route to Pearl Harbor on December 30, 1968. The Kitty Hawk arrived in Hawaii on January 5, 1969 and later departed for WESTPAC deployment on January 9, 1969. Between January 28 and August 16, the Kitty Hawk conducted special operations at Yankee Station during five separate periods with intervening port calls at locations including the Philippine Islands, Hong Kong, and Japan. On August 21, 1969, the Kitty Hawk went underway for San Diego and arrived on September 4, 1969. The Kitty Hawk moved to Bremerton, Washington later that month and did not return to the Western Pacific for the remainder of 1969. The 1970 command history reveals the ship was in port at Bremerton on January 1, 1970 and did not depart for her next WESTPAC deployment until November 6, 1970 for Hawaii. In conclusion, the evidence does not document the ship anchored/docked in a qualifying bay/harbor or traveled along inland waterway in the Republic of Vietnam. While Yankee Station, Tonkin Gulf is within the waterways of Vietnam, a Blue Water Navy Ship locator document in the claims file does not pinpoint the USS Kitty Hawk’s location ever within 12 miles of the coast during the applicable timeframe as required by § 1116. The preponderance of the evidence does not show the Veteran ever served in the Republic of Vietnam, either boots on ground or aboard USS Kitty Hawk. Extensive research has been conducted to verify the Veteran’s claim, and the objective evidence does not put the USS Kitty Hawk within 12 miles of the coast of Vietnam. The Board takes judicial notice that Yankee Station was a point in the Gulf of Tonkin used by US Navy aircraft carriers to launch strikes during the Vietnam War, that was located approximately 90-100 miles off the coast of North Vietnam. See Blue Water Navy Veterans and Agent Orange Exposure, NATIONAL ACADEMIES PRESS, 2011, Ch. 2, p. 29. While the Veteran is competent to recall memories from his personal experience, his testimony has been inconsistent. For example, in his April 2019 VA mental disorders examination, the Veteran recalled getting a break on deployment every six months and spending 4 to 5 days of leave time in Japan or the Philippines. He did not mention spending leave time in Vietnam. The examination revealed significant difficulty with memory, and medical records reflect a diagnosis of dementia. In light of this, the Board finds the Veteran’s testimony to be uncredible. The lay statements submitted by the Veteran’s fellow servicemembers do not endorse boots on ground in Vietnam. One statement only endorses service in the Philippines and Vietnam, and one statement recalls going inland in the Philippines, Japan, Hong Kong, and Korea, which is consistent with other evidence of record. The Board acknowledges the April 2017 letter submitted by Dr. L stating that the Veteran was exposed to Agent Orange, which has been associated with aggressive prostate cancer. However, Dr. L provides no explanation for what information leads him to conclude exposure, or on what he is basing his conclusion. Thus, the Board affords this opinion little probative value. Regarding the Veteran’s contention that he was exposed to Agent Orange, or other harmful chemicals, aboard USS Kitty Hawk, the Board finds that sufficient development has been conducted, and the evidence is against this claim. While the Veteran has made a conclusory statement that he was exposed to chemicals, toxins, and potentially harmful foreign substances aboard the ship and during liberty on foreign lands, he gives no further details and also stated in other correspondence that he was unsure of his exposure. In his hearing, he focused his exposure contention on liberty time with boots on ground in Vietnam. With no further information as to how he was exposed on the USS Kitty Hawk, and the deck logs, personnel and medical treatment records providing no indication of herbicide usage, the Veteran’s claim must be denied on a direct basis as well. In sum, herbicide exposure has not been shown by the evidence of record, and there is no other evidence of record that would indicate an in-service incurrence of his claimed disabilities or linking them to service. The Veteran’s claims are denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.