Citation Nr: 21041224 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-46 781 DATE: July 8, 2021 ORDER Entitlement to service connection diabetes mellitus, type II, to include as due to in-service herbicide exposure, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The most probative evidence of record does not establish that the Veteran was exposed to herbicide agents during his active service or that his diabetes mellitus, type II, manifested in service, or within one year of separation from service, or that it otherwise relates to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2019, the issue of entitlement to service connection diabetes mellitus, type II, was initially before the Board. The Board remanded the claim for further development. It now returns for appellate review. Additionally, a May 2017 rating decision denied entitlement to service connection for bilateral hearing loss. In April 2018, the Veteran submitted a timely Notice of Disagreement (NOD), VA Form 21-0958, as to this denial. However, the record does not reflect a Statement of the Case (SOC) has been issued with respect to this claim nor does review of VA's Veterans Appeals Control and Locator System (VACOLS) indicate that the Agency of Original Jurisdiction (AOJ) acknowledged the NOD or that the AOJ is continuing to work on the issue. As the record does not indicate action is pending at the AOJ, the Board has listed this issue on the title page pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to service connection diabetes mellitus, type II, to include as due to in-service herbicide exposure Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as diabetes mellitus, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents (colloquially known as Agent Orange), a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307. Service incurrence for certain diseases, including diabetes mellitus, will be presumed on the basis of an association with certain herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). First, in January 2019, the U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. In short, the Federal Court has concluded that a presumption of herbicide exposure may be granted to any Veteran who served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (2019). Second, in June 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). The BWN Act adds section 1116A to title 38 of the United States Code which extends the existing Agent Orange Act of 1991 presumption codified at section 1116 to veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The BWN Act defines "offshore" as a geographical area "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 eleven points of latitude and longitude listed in an included table." Id. Accordingly, to show service in the Republic of Vietnam and establish entitlement to presumptive service connection due to alleged herbicide exposure, the evidence must show that the Veteran served within the land borders (including the inland waters) or served on a ship within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam or 12 nautical miles seaward of the line defined by the BWN Act. If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides is established, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Here, the Veteran argues that his diabetes mellitus, type II, is due to his service, and that he was exposed to herbicide agents when he was allegedly near the Republic of Vietnam while aboard the U.S.S. Hancock (CVA-19). He also argued that when aboard the U.S.S. Hancock, he flew with the mail plane a few times to Da Nang, Vietnam. The record reflects that the Veteran has a diagnosis of diabetes mellitus, type II; thus, this is not in dispute. Specifically, an April 2012 private medical letter endorsed a diagnosis of diabetes mellitus, type II, which is consistent with the other clinical evidence of record. The record also reflects the Veteran served aboard the U.S.S. Hancock from December 20, 1966 to November 22, 1967. However, for the reasons set forth below, the Board finds that the preponderance of the evidence demonstrates that the Veteran was not present in the Republic of Vietnam, including its 12-mile territorial waters. The preponderance of the evidence does not support the Veteran's report of in-service herbicide exposure due to his claimed flights on mail plane to Da Nang, Vietnam. In this regard, a DD-215 reflected the Veteran was awarded a Vietnam Service Medal with 2 Bronze Stars and a Republic of Vietnam Meritorious Unit Citation (Gallantry Cross Medal Color with Palm). The Board notes, however, that these medals were awarded for those who served in-country and those who served elsewhere in support of operations in Vietnam, and thus, do not establish service in Vietnam. Also, a September 2012 Personnel Information Exchange System response found the Veteran served aboard the U.S.S. Hancock (CVA-19) which was in the official water of the Republic of Vietnam from February 4, 1967 to February 26, 1967, from March 15, 1967 to April 12, 1967, from April 27, 1967 to June 5, 1967, and from June 11, 1967 to June 28, 1967. However, "official waters" is not synonymous with being within the 12 nautical mile territorial sea of Vietnam. Thus, pursuant to the July 2019 Board remand, in a December 2019 response, the Joint Services Records Research Center (JSRRC) reviewed the 1965/1966 command history and the deck logs submitted by the U.S.S. Hancock (CVA-19). The JSRRC explained, in part, the U.S.S. Hancock had a final of period of combat operations, which included 25 days on Yankee Station, in June 1966 and July 1966, and eight days on Dixie Station in June 1966, returned to Alameda, California on August 1, 1966, and did not deploy to the Western Pacific for the remainder of the year. The JSRRC also explained the deck logs concurred with the ship's history, and the incidents listed by the Veteran were not recorded in the history or deck logs. The JSRRC also explained, according to the Naval History and Heritage Command, Washington Navy Yard, Washington D.C., flight records detailing crew and passenger manifests were not identified for permanent retention by the Navy. The JSRRC further explained Naval aircraft landing in the Republic of Vietnam without mishap or unusual circumstances were not normally documented in Navy unit histories or deck logs, and if the Veteran retained his personal flight log, the information regarding his landing in Vietnam may be documented therein. With respect to the Veteran's assertions regarding helping to deliver mail to Vietnam, the Board recognizes that nonspecific statements based on a lack of records, such as the response from the JSRRC here, cannot be used as substantive evidence against the direct evidence of what actually happened in this case. Also, VA performed further development in May 2021 matching the movements of the Veteran's vessel when he was aboard with the territorial sea of Vietnam as defined by the BWN. A May 2021 Formal Finding from a JSRRC Coordinator determined the Veteran's exposure to herbicides could not be conceded as the evidence of record did 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 BWN Act. Additionally, findings from a professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, were associated with the record in March 2021, and reflect the professional researcher completed comprehensive research on the Veteran's claimed exposure to herbicides while serving aboard the U.S.S. Hancock (CVA-19) from December 20, 1966 to November 22, 1967. This review utilized the 1966 and 1967 Command Histories submitted by the U.S.S. Hancock in an attempt to substantiate the Veteran's claimed exposure. However, no evidence was located to support documentation of the claimed exposure. Moreover, data from the Blue Water Navy Ship Locator Dashboard and a map plotting the latitude and longitude of the U.S.S. Hancock from December 20, 1966 to November 22, 1967, was associated with the record in May 2021, and demonstrates the ship was not within 12 nautical miles of the Republic of Vietnam. Specifically, the only date listed in brown or blue water was May 29, 1967 and the map plotting clearly showed a quartermaster error for the 2000 position on May 29, 1967 placing the ship on land. Moreover, associated deck log observation sheets provided data on the U.S.S. Hancock's position during the period at issue and support the Blue Water Navy Ship Locator Dashboard finding showing no service within 12 nautical miles of the Republic of Vietnam. The Board finds that the deck logs and information from the Blue Water Navy Ship Locator Dashboard which plotted the U.S.S. Hancock's position based on information from the deck logs is probative and does not support the Veteran's contention that his service aboard the U.S.S. Hancock constituted service in the Republic of Vietnam during the Vietnam Era. The Board acknowledges that the Veteran and his brother reported that the Veteran went to Da Nang, Vietnam with a mail plane on a few occasions. Specifically, in an August 2013 notice of disagreement, the Veteran reported he served on the U.S.S. Hancock from December 20, 1966 to November 22, 1967, with a tour of duty in the Gulf of Tonkin, at which time he drew flight pay for one month as he flew with the mail plane into Da Nang and back to help deliver the mail. Similarly, in a December 2013 Report of General Information, the Veteran stated, for a period of one month between February 1966 to April 1966, although he was not sure of the dates, he went to Da Nang on a few occasions when he flew on a plane to deliver mail. He also stated that his brother served on the same aircraft carrier for a period of time and his brother has firsthand knowledge of his service in Vietnam. Similarly, a statement received by VA in February 2014, the Veteran's brother, J. C., stated when the Veteran was serving abroad the U.S.S. Hancock in the Persian Gulf around May 1969 or June 1969, he received flight pay for one month and flew with the mail plane into Da Nang to deliver mail and pick up mail. Conversely, a statement received by VA in December 2015, the Veteran's brother stated in his previously letter, he mistakenly put the date as 1969 and it should have 1967 instead. He further stated his brother helped deliver mail in Da Nang, Vietnam for one month around May 1967 or June 1967. However, the Veteran's and his brother's contentions are not credible as they are inconsistent with each other and with contemporaneous military personnel records. First, the Veteran and his brother provide various differing years and months for dates for when he delivered mail. The Veteran reported in December 2013 his mail duties were between February and April 1966; in December 2015 the Veteran's brother adjusted dates he had provided in 1969 and identified the mail duties as occurring in May or June 1967. In addition, with respect to the corrected dates provided by the Veteran's brother, the service personnel records affirmatively show he completed messman duties as the latter end of June 1967. These personnel records provide an evidentiary foundation for drawing inferences against the Veteran from a lack of documentation. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). A June 21, 1967 service record, within the corrected date range identified by the Veteran's brother in a letter received by VA in December 2015, documented the Veteran completed messman duties on this date. The Veteran's service records are devoid of any indication he completed mail duties for one month. Further, the Veteran's military occupational specialty, as listed on his DD-214, related to a civilian occupation of radio operator, which is not supportive of his reported temporary mail related duties. In January 2020 correspondence, VA explained if the Veteran had retained his personal flight log, the information regarding his landing in Vietnam may be documented therein. However, the Veteran did not respond to this correspondence. Also significantly, as discussed above, in the December 2013 Report of General Information, the Veteran stated he was not sure of the dates that he went to Da Nang but indicated it was for one month between February 1966 to April 1966. However, the fact that the Veteran reported he did not recall when he went to Da Nang generally indicates that he did not, in fact, recall the circumstances of his reported trips to Da Nang. Moreover, the record reflects the Veteran served aboard the U.S.S. Hancock beginning in December 1966, thus the date range he identified between February 1966 to April 1966 is inconsistent with his service aboard U.S.S. Hancock. Further, the date range the Veteran identified, from February 1966 to April 1966 is not even within the same year as the date range his brother identified, as corrected to be May 1967 or June 1967. Additionally, in Veteran's brother's statement received by VA in February 2014, he identified the Veteran went flew into Da Nang when was serving abroad the U.S.S. Hancock in the Persian Gulf around May 1969 or June 1969, and although he corrected year to be 1967 in a subsequent letter, such still casts doubt on his recollection. Also, in the Veteran's brother's statement received by VA in February 2014, the Veteran's brother also identified the Veteran went flew into Da Nang when was serving abroad the U.S.S. Hancock in the Persian Gulf, which is also inconsistent with flying to Da Nang as these are not geographically proximate locations. Credibility determinations of a witness or claimant are multifaceted and require consideration of factors such as: inconsistent statements, internal inconsistency of statements, consistency with other evidence of record, and other factors. See Southall-Norman v. McDonald, 28 Vet. App. 346, 356 (2016). In light of these inconsistent statement from the Veteran and his brother regarding the Veteran's reported service flying on a mail plane to Da Nang, Vietnam, they are not credible regarding such allegations. Based on the above, the Board finds that the Veteran is neither presumed, nor upon facts found, to have been exposed to herbicide agents. Nevertheless, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can otherwise be established. Here, the Board notes that it is not in dispute that the Veteran has diabetes mellitus, type II. However, the Veteran's diabetes mellitus, type II, was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, was not noted in service with attributable continuity of symptomatology, and is not otherwise etiologically related to an in-service injury or disease. In this regard, the Veteran has not reported his diabetes mellitus, type II, or symptoms of such, onset during service and continued after service, or that it onset within one year after separation from service. Further, review of the Veteran's service treatment records reveals no diagnosis of diabetes mellitus, type II, or symptoms thereof. Specifically, an October 1969 in-service examination, conducted with the Veteran's separation from service, found, in pertinent part, his endocrine system was clinically normal upon examination. Additionally, the October 1969 in-service examination also documented urinalysis was negative as the existence of sugar or albumin. Additionally, the Veteran's post-service treatment records first show a diagnosis of and treatment for diabetes in 2005, over three decades after his active service. In this regard, an April 2012 private medical letter noted the Veteran was diagnosed with diabetes in August 2005. Also, an August 2005 private medical record noted the Veteran brought in a list of medications which includes Metformin but he stated he was not diabetic and just had high blood sugar. A June 2006 private medical record also noted the Veteran was newly diagnosed diabetic last August. Consequently, service connection for diabetes on the basis that such disease became manifest in service and persisted, or on a presumptive basis (as chronic diseases under 38 U.S.C. §§ 1112, 1137) is not warranted. Although diabetes is a chronic disease listed in 38 C.F.R. § 3.309(a), there is no evidence in the record of post-service continuity of diabetes symptomatology; the Veteran has not alleged that symptoms of diabetes were manifested in service and/or have been continually manifest ever since. There is also no probative and competent evidence indicating that the Veteran's current diabetes mellitus, type II, was incurred in or otherwise related to his active service. There is no indication in the Veteran's post-service medical records that his diabetes mellitus, type II, diagnosed many years after his service, is directly related to service (other than by virtue of alleged in-service exposure to herbicides). The lengthy interval of over three decades after the Veteran's service and the earliest post-service clinical documentation of a diagnosis of diabetes mellitus, type II, is of itself a factor for consideration against a finding of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). In reviewing the Veteran's claim for service connection for diabetes mellitus, type II, the Board has reviewed the lay statements of the Veteran and his brother; however, as discussed above, his assertions of flying on a mail plane to Da Nang, Vietnam, are not credible. Moreover, the Veteran has not been shown to have the medical training and expertise necessary to be deemed competent to provide a complex medical opinion as to the etiology of his diabetes mellitus, type II. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran has not been afforded a VA examination to assess the etiology of his diabetes mellitus, type II. However, a remand for a VA examination is not warranted in this case. The Veteran has consistently alleged that his diabetes mellitus, type II, is due to in-service exposure to herbicides. While there is evidence that the Veteran currently has diabetes mellitus, type II, the evidence does not establish that he had symptoms of diabetes mellitus, type II, during his service, nor does he so claim, and there is no evidence of presumed or actual exposure to herbicides, nor any other in-service event. Thus, there has been no trigger to the VA's duty to assist in providing the Veteran with an examination, and an examination is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. Thus, service connection for diabetes mellitus, type II, is denied. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, type II, that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. As discussed above, a May 2017 rating decision denied entitlement to service connection for bilateral hearing loss. In April 2018, the Veteran submitted a timely NOD as to this denial. The record does not reflect a SOC has been issued with respect to this claim nor does VACOLS reflect the AOJ is taking action with respect to this claim. Manlincon, 12 Vet. App. at 240-41. Accordingly, in the circumstances presented in this case, the AOJ must issue an SOC as to the issue of entitlement to service connection for bilateral hearing loss. The matter is REMANDED for the following action: Issue a SOC pursuant to the NOD received in April 2018, as to the May 2017 rating decision, which the Veteran is appealing for entitlement to service connection for bilateral hearing loss. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations, and afford the appropriate period for response. Only if a timely substantive appeal is received for such issue, should the issue be forwarded to the Board for appellate consideration. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.