Citation Nr: 1438445 Decision Date: 08/28/14 Archive Date: 09/03/14 DOCKET NO. 11-19 288 DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to December 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing is associated with the record. The record before the Board consists solely of electronic files known as Virtual VA and the Veterans Benefits Management System. FINDING OF FACT The Veteran served in the brown waters of the Republic of Vietnam from February 1968 to March 1968, and subsequently developed diabetes mellitus. CONCLUSION OF LAW It is presumed that the Veteran's diabetes mellitus was incurred as a result of his active service. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, including notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for diabetes mellitus. Therefore, no further development is required before the Board decides the claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may 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). 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure in service for enumerated diseases manifested to a degree of 10 percent or more within a specified time period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Veterans who served in the Republic of Vietnam between January 9, 1962, and 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. See 38 C.F.R. § 3.307(a)(6). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involve duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam ("blue water" service) may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). See VAOPGCPREC 27-97 (July 23, 1997). The United States Court of Appeals for the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). Service in inland waterways (also called "brown water" service) is also considered to be sufficient to invoke the presumption. If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops diabetes mellitus to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis The Veteran asserts that service connection is warranted for diabetes mellitus due to exposure to herbicides during his naval service in the coastal waters of Vietnam. The Board notes that June 2005 to May 2011 Bay Pines VA Medical Center treatment records cited in the RO's May 2011 rating decision are not associated with the Veteran's electronic records; however, the RO found that the VA records demonstrated diagnosis and treatment for diabetes mellitus. Therefore, the Board finds the Veteran's diagnosis of diabetes mellitus has been conceded by the RO's May 2011 rating decision. With respect to whether the Veteran served in the Republic of Vietnam, the Board finds the evidence to be in equipoise regarding whether the Veteran served on inland waters during his period of active service. The Veteran reports serving along the coastline of Vietnam, which included service on the inland water ways while on board the U.S.S. Johnston. Specifically, the Veteran asserts that the ship anchored in the mouth of inland rivers. The Veteran's DD Form 214 shows that during active service he was assigned to the U.S.S. Johnston (DD-821). In response to a January 2011 request for information, the service department reported that the U.S.S. Johnston was in the official waters of the Republic of Vietnam from January 7, 1968, to January 28, 1968, February 8, 1968, to March 10, 1968, March 22, 1968, to April 11, 1968, and April 21, 1968, to May 6, 1968. Deck logs for the U.S.S. Johnston reflect that on February 14, 1968, the vessel dropped anchor 2100 yards from shore and noted bearings of the left bank of the Song Houck River, 287 degrees, distance 3250 yards, and right bank of Song Houck River, 283 degrees, distance 3225 yards. A February 15, 1968, deck log reports that the ship dropped anchor 3200 yards from the coast in 12.5 fathoms of water, sand bottom, with 45 fathoms of anchor chain on the bearings of right bank of the Song Houck River, 265 degrees, left bank of the Song Houck River, 268 degrees. A deck log for March 10, 1968, indicates that the ship was in the vicinity of Hue, at the "mouth of the Perfume River," noting that the ship steered at various courses at various speeds to remain 3000 to 5000 yards from the beach to fire on positions north and south of Hue. In an April 2014 Board hearing, the Veteran testified that the U.S.S. Johnston assisted combat operations close to shoreline in order to support the citadel at Hue, which was over nine miles inland from the coast. The Veteran stated that while performing his assigned duties as a lookout, the ship was hit with enemy fire about 400 meters from the shore. The Veteran further remembered seeing river banks on each side of the ship when it was anchored in the mouth of the Song Huong River. The Veteran's representative submitted VA training letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam era, which acknowledges that some larger Navy vessels periodically entered inland waterways to provide gunfire support or supplies. VA training letter 10-06 directed that deck logs referring to entering or anchoring in the "mouth" of an identifiable river location was sufficient to establish service on inland waterways as it was "not practical to establish a bright dividing line between a river entrance and the South China Sea." See 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008). The Board finds that the evidence supporting a finding that the Veteran served aboard a ship on the inland waterways of the Republic of Vietnam is at least in equipoise with that against such a finding. The evidence of record establishes that the U.S.S. Johnston was anchored at the mouth of local rivers. The Veteran testified that, as a lookout, he was able to see the opposing banks of the river on either side of the ship while it was anchored in the mouth of a river. Moreover, the deck logs confirm that the ship dropped anchor between the banks of the Song Houck River and at the mouth of the "Perfume River." Thus, there is sufficient evidence to show that the U.S.S. Johnston was as likely as not present on inland waterways, or brown water, of the Republic of Vietnam. As such, the benefit of the doubt must be resolved in favor of the Veteran. The Veteran's diabetes mellitus is presumed to be service-connected based on presumed herbicide exposure and there is no evidence of record to rebut that presumption. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Accordingly, entitlement to service connection for diabetes mellitus is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for diabetes mellitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs