Citation Nr: 21023040 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-34 255 DATE: April 20, 2021 ORDER Entitlement to accrued benefits at the time of death for service connection for type II diabetes mellitus is denied. FINDING OF FACT The Veteran’s type II diabetes mellitus was not incurred in or due to his time in service, to include as due to exposure to herbicide agents in Vietnam. CONCLUSION OF LAW The criteria for service connection for accrued benefits purposes for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1955 to August 1976. The Veteran died in November 2009. The Appellant is the Veteran’s surviving spouse. This matter was previously before the Board in April 2020 and was remanded for further development. This development has been completed and the matter is again before the Board. Entitlement to accrued benefits at the time of death for service connection for type II diabetes mellitus is denied. Generally, accrued benefits are benefits that are due but unpaid to which a veteran was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death, and are payable to the living first person in the following list (in this order): the veteran’s surviving spouse; the veteran’s children; and the veteran’s dependents. 38 U.S.C. § 5121 (a)(2)(B); 38 C.F.R. § 3.1000. There is no basis for an accrued benefits claim unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In other words, to support a claim for accrued benefits, the deceased veteran (or other payee) must have had a claim pending (filed but not finally adjudicated by VA) at the time of his or her death, or otherwise have been entitled to the benefits under an existing. Accrued benefits are those benefits to which an individual was entitled at the time of death under an existing rating or based on evidence in the file at the date of death, and which were due and unpaid at the time of death. See 38 U.S.C. § 5121 (a); 38 C.F.R. § 3.1000 (a). Upon the death of a beneficiary, any accrued benefits are payable to his or her spouse, or to specific others if the spouse is not alive. 38 U.S.C. § 5121 (a)(2); 38 C.F.R. § 3.1000 (a)(1). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also 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. 38 C.F.R. § 3.303 (d). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic Bcell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, nonHodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (emphasis added). For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii); 3.313(a). In an important case, the United States Court of Appeals for the Federal Circuit held that “Service in the Republic of Vietnam” also includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to Veterans who served within that area, and such Veterans are entitled to presumptive service connection under 38 U.S.C. § 1116 (f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. Under the Blue Water Navy Vietnam Veterans Act of 2019, Congress codified Procopio and established that a Veteran who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service for the diseases listed in 38 U.S.C. § 1116. Section 1116 includes diabetes mellitus, being the disease at issue in this case. 38 U.S.C. § 1116 (a)(1)(H). The Act detailed that a location can be considered as “offshore of Vietnam” 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. The Act provides various intersecting points used in determining the demarcation line, including Con Co Island of the Binh Tri Thien Province. The Appellant contends service connection for the Veteran’s diabetes is warranted because the Veteran was exposed to herbicide agents while aboard the USS Franklin D. Roosevelt (USS FDR) in the waters off the coast of Vietnam. At the outset, the Board notes that the Veteran had a current diagnosis of type II, diabetes mellitus. See July 2020 Medical Treatment Record- Non-Government Facility. This case was remanded for additional development to determine whether the Veteran had active service within 12 nautical miles of Vietnam. Specifically, to address whether the USS FDR travelled within 12 nautical miles of Vietnam while the Veteran was on board the ship. A January 2021 VA Memo made a formal finding that exposure to herbicides cannot be conceded as the evidence of record indicates that while the USS FDR did conduct special operations off the coast of North Vietnam, it 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. The Board therefore finds that service connection cannot be granted on a presumptive basis. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A review of the service treatment records (STRs) notes normal endocrine system in the August 1955 enlistment examination, July 1959 examination, March 1965 examination, January 1971 examination, and the November 1974 examination. See April 2014 STR- Medical. There were no complaints, symptoms, or diagnosis of diabetes mellitus or borderline diabetes mellitus. In fact, the records state that the Veteran had diabetes mellitus in 2006, about 30 years after service. See June 2010 Medical Treatment Record- Non-Government Facility. Regarding all the contentions above, the Board acknowledges and has considered the Veteran’s statements and the Appellant’s statements and arguments that the Veteran’s diabetes was caused by his service. However, while the Veteran and the Appellant are competent to report the symptoms of the Veteran’s diabetes, they are not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more weight on the medical evidence of record. The medical evidence of record, including the Veteran’s treatment records, simply does not support a finding that the Veteran’s diabetes was incurred in or due to his time in service. There is no indication that the Veteran was diagnosed with his diabetes while in service or suffered from symptoms. Indeed, the Veteran’s diabetes was diagnosed almost 30 years after his time in service. It is important for the Appellant to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Appellant’s belief that the Veteran’s diabetes was the result of service, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Lastly, the Board would like to offer its sympathies to the Appellant for the loss of her husband. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.