Citation Nr: 18123956
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-27 402
DATE:	August 6, 2018
ORDER
Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied.
FINDING OF FACT
The evidence of record does not show that the Veteran stepped foot within the landmass of the Republic of Vietnam or served within the inland waterways of Vietnam and exposure to herbicides may not be presumed. 
CONCLUSION OF LAW
The criteria for service connection for diabetes mellitus, type II are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.
 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Navy from October 1970 to January 1977 and from January 1977 to January 1981.
Entitlement to service connection for diabetes mellitus, type II, to include as due to Agent Orange exposure 
To establish service connection for a 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006).
A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents during that service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).
Certain disorders, including type II diabetes mellitus, associated with herbicide agent exposure in service, may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309.
Veterans diagnosed with an enumerated disease who, during active service, served in 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 herbicide agent during that service. 38 C.F.R. § 3.307.
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. 38 C.F.R. § 3.307 (a)(6)(iii). Service in the Republic of Vietnam includes service on the landmass or on the inland waterways. Haas v. Peake, 525 F.3d 1168 (2008). 
The Veteran expressed that he has been treated for diabetes mellitus, type II since 2001, which was caused by exposure to Agent Orange while serving on the U.S.S. Oklahoma. See November 2013 Statement in Support of Claim. Specifically, the Veteran contends that he was on the USS Oklahoma City that operated in the inland waters of Vietnam. See VA Form 9. 
The Board notes that, as the Veteran has a current diagnosis of diabetes. Resolution of this appeal based on the Veteran’s contentions, rests on the determination of whether the presumptions contained in 38 C.F.R. §§ 3.307, 3.309 based on exposure to herbicide agents as defined in these regulations. 
The Veteran’s DD Form 214 shows that the Veteran received a Combat Action Ribbon and Vietnam Campaign and Vietnam Service Medals. The Board acknowledges and thanks the Veteran for his combat service.  Review of the record does not indicate that the Veteran’s contentions in this appeal are based on his actions of combat.  The Veteran’s Military Personnel Records confirm that the Veteran served on the USS Oklahoma City from 1971 to 1975. 
Upon review of the evidence, the Board finds that in-service exposure to herbicide exposure cannot be presumed. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). 
The Board recognizes the Veteran’s assertion that exposure to herbicides should be presumed based on the fact that his ship operated in the inland waters of Vietnam. However, the Board reviewed the most current Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents listing and the listing showed that the USS Oklahoma City docked in Saigon but, the date of the docking was July 21 to 24, 1964. The Board finds that the USS Oklahoma City docked in Saigon prior to the Veteran entering active duty. (https://www.benefits.va.gov/compensation/claims-postservice-agent_orange.asp)  
In addition, the listing showed that the USS Oklahoma City sent small boats ashore while anchored in Da Nang Harbor during September 1966 and January-February 1970 and sent ship’s softball team ashore during July 1969. However, this also occurred prior to the Veteran entering active duty. Id. 
Furthermore, the Veteran has not contended that he was physically present in the Republic of Vietnam.
Therefore, in this case, the presumption of exposure to herbicides does not attach where, as in this case, the Veteran did not have service in the Republic Vietnam or the inland waterways of the Republic of Vietnam or another location where exposure to herbicides can be presumed, and the service records do not otherwise show exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii).
Furthermore, the Veteran has not contended, nor is there any evidence of record, that diabetes mellitus manifested within one year of separation from active service. 
The service medical records are negative for any indication, treatment or diagnosis for diabetes mellitus. A review of the private medical records indicates that the Veteran was diagnosed with diabetes many years following service separation. The Veteran also expressed that he has been treated for diabetes mellitus, type II since 2001. Therefore, a presumption of service connection as a chronic disease is also not warranted. 38 C.F.R. § 3.309(a).
Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
Based on the Board’s finding that the Veteran was not exposed to an herbicide agent, to include Agent Orange during service, a VA examination is not necessary because the Veteran did not undergo an event, injury or disease in service. 38 C.F.R. § 3.159(c)(4)(i); see Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran’s claim).  
Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes mellitus and must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M.D., Associate Counsel 

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