Citation Nr: 22028475 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 16-40 175 DATE: May 13, 2022 ORDER Entitlement to service connection for diabetes mellitus type II, as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for diabetes mellitus type II, to include as due to environmental exposure, is remanded. Entitlement to a rating in excess of 30 percent prior to May 19, 2016, and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's diabetes is not due to in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for diabetes as due to herbicide exposure are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from August 1966 to July 1970. These issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law judge. The transcript is of record. This matter was recently remanded in January 2020 for additional development. A review of the record shows substantial compliance with the Board's prior remand regarding the diabetes claim in terms of herbicide exposure; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. The Veteran contends that he currently has diabetes that is the result of in-service exposure to herbicide agents while serving in Vietnam. He submitted his claim for VA compensation benefits in November 2014. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. The diseases which are presumed to result from exposure to herbicides include diabetes. 38 C.F.R. § 3.309 (e). The presumption requires exposure to an herbicide agent and a manifestation of the disease to a compensable degree at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term "Service in the Republic of Vietnam" includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents under 38 U.S.C. § 1116, so long as they meet the section's other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966). The Board finds that the Veteran currently has diabetes. The Veteran's post-service VA and private treatment records note a diabetes diagnosis. However, the competent evidence of record persuasively shows that the diabetes is not due to in-service exposure to herbicide agents. Therefore, service connection for diabetes on this basis must be denied. A review of the Veteran's service treatment records (STRs) do not note any complaints, diagnosis, or treatment regarding diabetes. Clinical examination was normal on entrance and separation. The Veteran's post-service VA and private treatment records note complaints and treatment for diabetes. However, none of the Veteran's treating clinicians have given a positive opinion that the Veteran's diabetes are the result of his active duty service, including alleged exposure to herbicide agents. In addition, the Board notes that the Veteran underwent a VA examination in March 2015. However, the examiner did not render an etiology opinion regarding the Veteran's diabetes. The Veteran also submitted a private medical examination in June 2016. However, the clinician also did not render an etiology opinion regarding the diabetes. A review of the Veteran's military personnel records reveals that he served onboard the U.S.S. Forestall (CVA-59). An October 2012 VA memorandum stated that the U.S.S. Forestall was in the "official waters" of Vietnam from July 23, 1967 to July 30, 1967 and August 12, 1967. Logbooks obtained for this period of time does not demonstrate that the U.S.S. Forestall was located within 12 nautical miles of the Republic of Vietnam. In addition, a December 2020 VA record research response memorandum found that the history of the U.S.S. Forestall did not reveal that the ship docked in, transited inland waterways, or that ship's personnel stepped foot in the Republic of Vietnam. The Board finds that evidence of herbicide exposure cannot be conceded based on the Veteran's naval service. Official service department records show that the Veteran was not exposed to herbicides during service. The Board finds this information outweighs the Veteran's own assertions of exposure made for compensation purposes. Thus, the Board finds that the evidence of record does not support a finding that the Veteran was exposed to herbicide agents during active service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307, 3.309. Because the weight of the evidence demonstrates that the Veteran does not have confirmed exposure to herbicide agents within the meaning of 38 C.F.R. § 3.307 in service, there is no duty to obtain a VA etiology opinion regarding the Veteran's diabetes in terms of his claimed herbicide exposure. The Board finds that the weight of the evidence demonstrates no in-service exposure to an herbicide agent, no symptoms, injury, or disease related to diabetes in service, and no continuity of symptoms since service separation. Thus, there is no reasonable possibility that a VA opinion could aid in substantiating the claim for service connection because there is no relevant injury, disease, event, or exposure in service to which any current disability could be related by competent opinion. See 38 U.S.C. § 5103A (a)(2)(VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159 (d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). Because the evidence demonstrates no in-service exposure, disease, injury, or symptoms related to herbicide exposure, referral of this case to obtain an opinion as to the etiology of the Veteran's diabetes on this basis would place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of in-service exposure, and could only result in a speculative opinion or purported opinion of no probative value. The Court of Appeals for Veterans' Claims (the Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Accordingly, the Board finds that a remand for a VA examination or opinion to address diabetes due to exposure to herbicide agents is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran testified at the April 2019 Board hearing that he believed that he was exposed to herbicides while onboard the U.S.S. Forestall. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of his diabetes requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the competent evidence of record demonstrates that the Veteran was not exposed to herbicide agents during his active duty service. Accordingly, his statements are entitled to little probative value. The Board also notes that the Veteran submitted a Board decision that awarded service connection for leukemia based on herbicide exposure while serving aboard the U.S.S. Forestall in another Veteran's case. However, Board decisions are only binding with respect to the specific Veteran and the issues involved in that particular claim and have no precedential value with respect to cases involving other Veterans. 38 C.F.R. § 20.1303. As such, that decision is not entitled to any probative value in this matter. Without competent and credible evidence of an association between the Veteran's diabetes and his claimed herbicide exposure, service connection is not warranted on that basis. The benefit-of-the-doubt rule does not apply, as the evidence is persuasively against the claim regarding herbicide exposure. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II, to include as due to environmental exposure. The Veteran also contends that his diabetes is the result of in-service environmental exposure. He testified at his April 2019 Board hearing that he was exposed to environmental toxins from scrapping paint as well as from a fire onboard the U.S.S. Forestall, which resulted in the inhalation of particulate matter (such as vinyl chlorides and dioxins). In addition, he has submitted several medical articles that suggested a link between exposure to dioxins and vinyl chlorides and the development of diabetes. However, a review of the record does not demonstrate that any RO development regarding the Veteran's claimed environmental exposure has taken place. Therefore, this matter must be remanded to assess the likelihood and extent of the Veteran's environmental exposure while onboard the U.S.S. Forestall during active service. 2. Entitlement to a rating in excess of 30 percent prior to May 19, 2016, and in excess of 50 percent thereafter for PTSD. The Veteran contends that his PTSD symptomology is worse than the ratings currently assigned. A review of the claims files reveals that the Veteran currently attends weekly support group sessions at the Counseling & Wellness Center. See January 2022 VA examination. However, the most recent medical records from this facility that are associated with the claims file are dated from May 06, 2016. Remand is warranted to request and associate updated medical records with the claims file. 3. Entitlement to a TDIU due to service-connected disabilities. The Veteran contends that he is unable to work as a result of his service-connected disabilities. The TDIU claim is inextricable intertwined with the claims being remanded by the Board. As such, the TDIU claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Obtain updated VA and/or private treatment records to the extent possible, including records from the Counseling & Wellness Center from May 2016 to the present. If such records are unavailable, the claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Undertake appropriate development with the VBA Compensation Service's Military Records Research Center (MRRC) to assess the likelihood and extent of the Veteran's exposure while onboard the U.S.S. Forestall (where personnel records show he was deployed from September 1967 to June 1968 and from October 1968 to July 1970) to the following: dioxins, vinyl chlorides, and any other toxic substances other than an herbicide agent. 4. Perform any other development suggested after receipt of the evidence above to include, if necessary, the scheduling of a VA examination to determine the nature and etiology of the Veteran's diabetes based on in-service environmental exposure. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.