Citation Nr: 21039844 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-12 326 DATE: July 1, 2021 ORDER Entitlement to service connection for diabetes mellitus, type 2, as due to exposure ot herbicide agents, is denied. Entitlement to service connection for hypertension, as due to exposure ot herbicide agents, is denied. Entitlement to service connection for sleep apnea, to include as secondary to diabetes or hypertension, is denied. FINDINGS OF FACT 1. The Veteran did not serve on the landmass of Vietnam; records show that the USS Chicago did not sail and was not stationed within 12 nautical miles off the Vietnam coast during the Veteran's service; the Veteran was not exposed to herbicide agents during service. 2. The Veteran's diabetes mellitus, type 2, was not present in service or for many years thereafter and is not otherwise related to service. 3. The Veteran's hypertension was not present in service or for many years thereafter and is not otherwise related to service. 4. The Veteran's sleep apnea is not caused or aggravated by a service-connected disability, and not otherwise related or attributable to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) In July 2020, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In August 2020, the Board remanded the case for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for diabetes mellitus, type 2, as due to exposure ot herbicide agents. 2. Entitlement to service connection for hypertension, as due to exposure ot herbicide agents. The record shows the Veteran has been diagnosed with type 2 diabetes mellitus and hypertension. He has not contended these conditions were present in service, and the record shows the initial diagnoses were made many years after service. Specifically, an April 2010 VA primary care initial evaluation note shows essential hypertension, which was improved on medication; the examination was negative for diabetes. Subsequently, an October 2012 VA record notes that the Veteran had prior medical history of diabetes mellitus and hypertension. During a September 2013 VA examination, the Veteran reported that he was diagnosed with diabetes in 2010 and the onset of symptoms was 2009 or 2010, when he started noticing dizziness, dry mouth, and headaches. He further reported the onset and initial diagnosis of his hypertension was in 2004. The Veteran contends service connection is warranted based on presumptive exposure to herbicide agents during his tour of duty. A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). The Republic of Vietnam includes the landmass, the inland waterways, and the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). As a result, the presumption of exposure to herbicides extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Procopio, 913 F.3d 1371. With regard to the claim for hypertension, while hypertension is not a disease eligible for presumptive service connection, the National Academy of Science (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018) upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. The Veteran has not contended he served on the landmass of Vietnam. Instead, he claims that while serving on the USS Chicago, the vessel operated in the waters offshore Vietnam. Thus, the Veteran's case hinges on a determination of whether he served in the Republic of Vietnam, which includes the 12 nautical mile territorial sea of Vietnam. A review of the record shows the Veteran had active service during the Vietnam war and served aboard the USS Chicago CG-11. He reported that his ship was up and down the Da Nang Harbor from 1973 to 1976. He provided testimony during the July 2020 Board hearing that his ship was operating rescue missions in the waters off Da Nang Harbor. In August 2020, the Board remanded the case to obtain and review the deck logs of USS Chicago in order to ascertain its whereabouts while the Veteran served aboard the ship. Blue Water Navy Ship Locator Dashboards reflect that for the period from November 9, 1973 to July 6, 1976, the USS Chicago was not within 12 nautical miles off the coast of Vietnam nor in "blue waters." A January 2021 VA memorandum indicates that after a special Blue Water Navy Review directed search of the deck logs for the Chicago also did not find evidence that the Chicago traveled within the territorial waters of the Republic of Vietnam while the Veteran was assigned to USS Chicago from November 9, 1973 to July 6, 1976. A professional researcher from the Military Records Research Center completed comprehensive research on the Veteran's claimed exposure during service. The Naval History and Heritage Command Ship History for the USS Chicago the ship was moored in San Diego at Long Beach Naval Shipyard and the ship was deployed to Western Pacific (WESTPAC) from May to November 1974 and from April to September1976 with port visits at locations including Subic Bay, Singapore, Hong Kong, Philippines, Japan, the South China Sea, and Taiwan; these locations are not within 12 nautical miles off the coast of Vietnam. A review of the 1974 Command History for the Chicago found the Chicago departed San Diego on a WESTPAC deployment on May 21, 1974 and returned to San Diego on December 14, 1974, but the history did not document the Chicago as in port in the Republic of Vietnam. Further, the World Almanac of the Vietnam War revealed that on March 29, 1973, the last U.S. combat troops departed Vietnam, ending nearly 10 years of U.S. military presence in that country. 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. The preponderance of the evidence does not show the Veteran ever served in the Republic of Vietnam, either boots on ground or aboard USS Chicago. Extensive research has been conducted to verify the Veteran's claim, and the objective evidence does not put the USS Chicago within 12 miles of the coast of Vietnam. In summary of the foregoing, the evidence does not show the Veteran's diabetes or hypertension was present in service or for many years thereafter, or that it is otherwise related to any in-service event or illness. In addition, the evidence shows the Veteran did not serve on the landmass of Vietnam or within 12 nautical miles of the landmass of Vietnam. The Veteran has not asserted, and there is no evidence to show, that he was directly exposed to Agent Orange or other herbicide agents during service. Based on the foregoing evidence, the Board finds a preponderance of the evidence weighs against the Veteran's claims for service connection for type II diabetes mellitus and hypertension, whether based on a theory of direct or presumptive service connection. 3. Entitlement to service connection for sleep apnea, to include as secondary to diabetes or hypertension. The Veteran contends that his currently diagnosed sleep apnea may be related to his diabetes and/or hypertension. During the July 2020 Board hearing, the Veteran testified that he was told by a doctor that his weight may be a contributing factor to his sleep apnea and that it is not easy for him to maintain his weight with diabetes and hypertension. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, as service connection for diabetes, type 2, and for hypertension is denied herein, his secondary service connection for sleep apnea cannot be established. Service treatment records contain no complaint, finding, history, treatment, or diagnosis of sleep apnea in service. Therefore, the condition was affirmatively shown to have been present during service, and service connection under 38 C.F.R. § 3 303(a) is not established. After separation from service, VA treatment reports first show a diagnosis of obstructive sleep apnea in October 2015, which is approximately 40 years after service separation. Initially, the Board points out that the passage of many years between discharge from active service and the lack of documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, the Board observes that the Veteran does not contend that he has experienced any symptoms related to this condition in service or prior to the initial diagnosis. Additionally, there is no competent opinion of record as to whether the Veteran's current sleep apnea is related to his active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Accordingly, the Board concludes that the weight of the evidence is against the Veteran's claim of service connection for sleep apnea. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.