Citation Nr: 1317205 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-15 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus to include as due to exposure to chemicals, including Agent Orange. 2. Entitlement to service connection for neuropathy of the feet (claimed as numbness of the lower extremities) as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from April 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). All documents in the Veteran's Virtual VA electronic folder were considered by the RO prior to certification of the Veteran's claim to the Board. The Veteran's claims were remanded by the Board in May 2010, August 2011, and January 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam during the Vietnam War. 2. Herbicide agents, as defined by 38 C.F.R. § 3.307(6)(i), were not used, tested, or stored in Guam when the Veteran served in Guam. 3. Type II diabetes mellitus was not manifest in service or within one year of separation, and is not shown to have developed as a result of an established event, injury, or disease during active service. 4. Neuropathy of the feet (claimed as numbness of the lower extremities) was not manifest in service or within one year of separation, is not shown to have developed as a result of an established event, injury, or disease during active service, and is not proximately related to, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Neuropathy of the feet (claimed as numbness of the lower extremities) was not incurred in or aggravated by service, may not be presumed to be, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In April 2007, prior to the July 2007 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claims, and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's service treatment records, service personnel records, and VA treatment records have been obtained. As described below, extensive research has been conducted to determine whether Agent Orange, or any other tactical herbicide, was used in Guam while the Veteran was stationed there. The Veteran has submitted extensive documentation in support of his claims. He has provided testimony at an RO hearing and at a Board hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Veteran has not been scheduled for or provided with a VA examination for the claim of entitlement to service connection for type II diabetes mellitus as a result of exposure to chemicals, to include Agent Orange. As will be discussed in more detail below, the Board finds that an examination is not necessary to decide this claim because there is no in-service injury, disease, or event of exposure to Agent Orange, no evidence of symptoms or disease of diabetes in service or continuously after service, and there is competent medical evidence to decide the question of whether the Veteran has a current disability. For these reasons, a VA examination is not necessary to decide this claim. With respect to a March 2010 Board Video Conference hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2010 hearing, the Veterans Law Judge enumerated the issues on appeal. Information was obtained regarding onset of the Veteran's claimed disabilities, his current symptoms, and any causal link between the claimed disabilities and his active service. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or sought. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. II. History The service treatment records do not reveal any findings related to diabetes mellitus and the Veteran's July 1966 discharge examination report notes "negative sugar." The post service medical records do not reveal a diagnosis of diabetes mellitus until 2001. A June 2001 VA treatment record indicates that the Veteran had just received a diagnosis of diabetes mellitus. In December 2006 the Veteran submitted a claim for service connection for diabetes mellitus. The Veteran's service personnel records show that the Veteran served in Guam. These records do not show that the Veteran ever visited Vietnam during service. In March 2009 the Veteran provided testimony at a hearing before a Decision Review Officer at the RO. The Veteran reported that when he served in Guam he guarded a communication tower. He stated that the area around the antenna was sprayed with a chemical herbicide every two weeks, sometimes more frequently, to keep the vegetation from growing. He said that it was in a liquid form and that the mist covered everything. The Veteran asserted that he now has diabetes mellitus due to his exposure to herbicides, including Agent Orange, and to his exposure to DDT in Guam. In March 2009, the Veteran submitted many reports from the Internet that state that Guam is contaminated with DDT, Agent Orange, and other herbicides. He also submitted a letter from his ex-wife. She stated that she was with the Veteran when he was in Guam and that he would come home from work with a strong odor on his uniform, with flushed face, and breathing in short breaths. She stated that the chemicals must have gotten into the Veteran's blood stream because all four of their children had significant health problems. Additionally, he submitted a copy of an October 2005 Board decision which granted service connection for diabetes mellitus based on a veteran's exposure to herbicides while serving in Guam. At a March 2010 Video Conference hearing before the undersigned, the Veteran testified that his duties in Guam included guarding an antenna installation. He reported that the area was sprayed with Agent Orange several times a month to keep the grass down. The Veteran stated that the mist from the spraying would cover his clothes and that he would have to cover his face with his handkerchief. He reported additional exposure from planes returning to the airport after spraying. He said that they would empty any herbicides remaining on board the aircraft onto the cliffs where he practiced repelling. He also reported exposure from loading and transporting drums of herbicides that leaked. The Veteran testified that when the VA diagnosed diabetes, he was told that the cause was probably Agent Orange exposure. In May 2010 the Board remanded the Veteran's claims to attempt to verify the Veteran's exposure to chemical dioxins in Guam. The AMC attached a December 2009 email to the claims file from a member of the VA Compensation and Pension Policy Staff. The email states that research shows that there was no use, testing, or storage of tactical herbicides, such as Agent Orange, at any location on Guam at any time with the exception of a brief period during the Korean War (1951-53). Those herbicides were shipped back to Fort Detrick, Maryland following the Korean armistice. The email also states that there was some small-scale commercial herbicide use for brush and weed clearing activity. It noted that commercial herbicides are used on every U.S. military base in the world and do not fall under the statutes and regulations governing presumptive service connection for tactical herbicide exposure. In a September 2010 statement in support of claim, the Veteran asserted that he was assigned to temporary additional duty to the USS Banner from February 1, 1965 to June 23, 1966. He reported that he participated in rubber boat training off the coast of Vietnam during the Vietnam War. In September 2010 the AMC wrote to the Marine Corps Archives and Special Collections Branch (MCASCB) regarding the Veteran's claims that he was exposed to Agent Orange in Guam. In October 2010, the MCASCB responded that Command Chronologies covering the Vietnam era had been permanently transferred to the National Archives. The MCASCB also noted that because the Veteran claimed that he transported Agent Orange from Anderson Air Force Base, the Air Force Historical Research Agency (AFHRA) should be contacted to determine if they had information relating to the presence of Agent Orange at Anderson Air Force Base during the specific time frame of the Veteran's claim. In November 2010, the AMC contacted the AFHRA regarding use of Agent Orange in Guam. Later in November 2010 the AFHRA responded that there were no records showing that Agent Orange was ever used, stored, or transited through Anderson Air Force Base, Guam at any time. The response states that the United States Air Force never used Agent Orange on Guam. In November 2010, the AMC also contacted the Joint Services Records Research Agency (JSRRC). Later in November 2010, the JSRRC responded that the historical data does not document any Agent Orange or tactical herbicide spraying, testing, storage, dispersal, or usage on the island of Guam during 1964 through 1966, to include perimeter fence areas, antennae fields and base housing areas as described by the Veteran. The JSRRC noted that the Department of Defense listing of herbicide spray areas and test sites outside the Republic of Vietnam, does not include Guam as a listed location. In August 2011 the Board again remanded the Veteran's claims in for additional attempts to be made to verify the Veteran's exposure to herbicides in Guam. In June 2012, the AMC provided a detailed statement of the Veteran's claimed herbicide exposure to the VA Compensation and Pension Service (C&P) and requested a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used, tested, or stored as alleged. The response stated that available evidence does not show that tactical herbicides such as Agent Orange were used, tested, or stored on Guam during 1964-1966. There was no evidence from DoD, JSRRC, or EPA corroborating the presence of tactical herbicides on Guam during that time period. When C&P contacted EPA, personnel at EPA responded that they were not aware of tactical use of pesticides on Guam. C&P went on to state that because the presence of tactical herbicides on Guam has not been established, it is likely that the vegetation control the Veteran notes was accomplished with commercially available herbicides. Commercial herbicides to control unwanted weeds and brush are used on military bases worldwide and do not fall under VA regulations which cover the tactical herbicides used in Vietnam and the presumptive diseases associated with them. The AMC contacted the National Archives in June 2012 for the Command Chronologies for the Marine Corps Barracks in Guam from June 1964 to January 1966. The National Archives responded in July 2012, noting that a copy of the chronology for the period July 1965 to January 1966 was enclosed. That National Archives stated that they did not have a chronology for the Marine Corps Barracks, Guam prior to July 1965. The Command Chronologies received make no reference to Agent Orange or herbicide spraying in Guam while the Veteran was there. A request to the Naval History and Heritage Command (NHHC) provided a 1966 Command History for the U.S. Navy Public Works Center on Guam. The Command History notes tests of soil sterilizing herbicides to ascertain the best chemical combinations to tolerate the high rainfall and rapid growth of the tropical vegetation. In June 2012, the AMC obtained the 1965 Command History Report from the USS Banner. This ship history indicates that the ship did not operate off the coast of Vietnam in 1965. In August 2012, the Veteran's description of his Agent Orange exposure was again forwarded to the JSRRC. In October 2012 the JSRRC responded that there was no documentation of the transportation, use of, spraying of, or storage of Agent Orange or tactical herbicides, including near housing, antenna fields, fence line, etc. on Guam. JSRRC stated that it could not verify that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed in Guam. In January 2013 the Board once again remanded the Veteran's claims. This time in order that information from the deck logs of the USS Banner could be reviewed for the period from February 1, 1965 to June 23, 1965. In January 2013, the National Archives responded that the deck logs revealed that the USS Banner operated out of Guam and visited other Pacific ports. These ports were identified and did not include Vietnam. The letter from the National Archives states that the deck logs do not provide information regarding storage or use of chemical dioxins. In a March 2013 statement the Veteran asserted that he was on the USS Banner from February 1, 1965 to June 23, 1965. He stated that they were not allowed to shore. He reported that they were on a secret mission and that he only later found out that the ship went to Vietnam. He went on to state that he did not feel that he was exposed to Agent Orange in Vietnam. He asserted that he was exposed to Agent Orange in Guam. He said he was exposed to spraying in Guam, where he saw many barrels marked with different colored markings. He said that the spray came from barrels marked with an orange stripe. III. Analysis The Veteran does not claim that he developed diabetes mellitus during service or within a year of discharge from service. The evidence of record clearly shows that the Veteran developed diabetes mellitus many years after discharge from service. Consequently, the Veteran is not entitled to service connection for diabetes mellitus on a presumptive basis for a chronic disability which developed within a year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. The Veteran has asserted that he is entitled to service connection for diabetes mellitus on a presumptive basis due to exposure to Agent Orange while in service. If a veteran was exposed to Agent Orange during active service, presumptive service connection is warranted for certain specified diseases, including diabetes mellitus, type II. 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "[S]ervice 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). In order for the presumption of service connection based upon herbicide exposure to apply, a veteran must have set foot on the landmass of the country of Vietnam or served in the inland waters of Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Nicholson, 20 Vet. App. 257 (2006). Although the Veteran has asserted that he went Vietnam during his service, the Board does not find that the Veteran is entitled to service connection for diabetes mellitus based on Vietnam service. As noted above, the 1965 Command History Report from the USS Banner, and the deck logs from the USS Banner, dated from February 1, 1965 to June 23, 1965, indicate that the USS Banner did not visit Vietnam during the period the Veteran states he was aboard. Furthermore, in March 2013 the Veteran stated that he was never ashore in Vietnam. See Haas, 20 Vet. App. 257 (2006). As the Veteran has not asserted that he ever set foot on the landmass of the country of Vietnam or served in the inland waters of Vietnam, and as the Veteran's personnel records and the evidence related to the USS Banner indicate that the Veteran never went to Vietnam, the Board finds that the Veteran had no service in Vietnam. Accordingly, the Veteran is not entitled to service connection for type II diabetes mellitus based on the presumed exposure to Agent Orange for those who served in the Republic of Vietnam from January 9, 1962 through May 7, 1975. The Veteran, however, has consistently asserted that he is entitled to presumptive service connection for diabetes mellitus based on his exposure to Agent Orange while stationed in Guam. If a Veteran had exposure during service to an herbicide agent as defined by 38 C.F.R. § 3.307(a)(6), service connection for type II diabetes mellitus will be presumed. See 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term "herbicide agent" means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is considered to be a herbicide agent as defined by § 3.307. As noted above the Veteran submitted many documents purporting to show that Agent Orange and other tactical herbicides were used in Guam. However the Board does not find these documents to be of significant probative value. These consist of letters and newspaper articles that provide anecdotes regarding use of Agent Orange in Guam, but do not provide proof of such use. Although the Veteran is certainly competent to state that he observed and worked around colored barrels in Guam, there is no persuasive evidence that such barrels contained Agent Orange. The Board recognizes that the Command History for the U.S. Navy Public Works Center on Guam noted tests of soil sterilizing herbicides in 1966. However, the greater weight of the most probative evidence indicates that such herbicides were not Agent Orange, or any other tactical herbicide as defined by 38 C.F.R. § 3.307(6)(i). The most probative evidence consists of the reports from the JSRRC, AFHRA, and the National Archives that neither Agent Orange, nor any other tactical herbicide, was used, tested, or stored on Guam during 1964-1966. The JSRRC, AFHRA, and National Archives researched the Veteran's claims and provided documentary proof that Agent Orange and other similar herbicides were not used, tested or stored on Guam when the Veteran served there. Because the most probative evidence of record indicates that there was no Agent Orange, or any other tactical herbicide, on Guam when the Veteran served there, the Board finds that the weight of the evidence is against a finding of exposure to a herbicide agent, as defined by 38 C.F.R. § 3.307(a)(6)(i), during active service, and presumptive service connection for type II diabetes mellitus based on exposure to a § 3.307 herbicide is not warranted. Therefore, the Board finds that presumptive service connection under 38 C.F.R. § 3.309(e) for diabetes due to exposure to a § 3.307 herbicide is not warranted. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). However, the regulations governing presumptive service connection for Agent Orange do not preclude a Veteran from establishing service connection with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there generally must be: (1) a medical diagnosis of a current disability; (2) medical or, in some cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although the Veteran testified that when VA diagnosed diabetes he was told that it was probably caused by Agent Orange, the VA treatment records at the time diabetes was discovered contain no reference to Agent Orange. Furthermore, as noted above, the evidence indicates that the Veteran was not exposed to Agent Orange during service. The Board further notes that there is no medical evidence supporting the Veteran's assertions that his children have health problems due to his exposure to chemicals in service. In support of his claim, the Veteran submitted a copy of a Board decision from October 2005 that granted service connection for diabetes mellitus for another veteran based on that veteran's service in Guam. The Veteran cited to the prior decision as being similar to his case, and as proving the herbicides were used in Guam. Although the veteran was not granted service connection on a presumptive basis in the October 2005 decision, service connection was granted based on favorable medical evidence that the claimed diabetes mellitus was as likely as not related to that veteran's service in Guam. Such evidence has not been presented in this case. There is no medical evidence of record relating the Veteran's diabetes to any aspect of his service, including his claimed exposure to herbicides. Moreover, prior Board decisions have no precedential authority. See 38 C.F.R. § 20.1303 (2012). Here, the Board does not find that the Veteran is competent to determine the etiology of his diabetes. The Board notes that the Veteran may very well have been exposed to various chemicals while serving on Guam, including commercial herbicides and DDT. Although the Veteran and his ex-wife are competent to report that the Veteran was at times covered with some sort of chemical when he served in Guam, they have not been shown to be competent to link any alleged chemical exposure to his current type II diabetes mellitus. Further, although the Veteran testified that barrels containing herbicides were near where they lived on the base and that sometimes the contents of these barrels leaked out, he has not provided any concrete evidence to show that those barrels contained any hazardous chemicals, to include herbicide agents, and he has not demonstrated the medical knowledge required to establish an etiological nexus between his onset of diabetes and any possible exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran developed type II diabetes mellitus as a result of exposure to various chemicals during service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Board recognizes the Veteran's sincere belief in the merits of his claim, the preponderance of the evidence is against a finding of service connection for his type II diabetes mellitus. There is no probative medical evidence that the Veteran's current disorder had its onset during, or is otherwise related to, his service. As noted above the most probative evidence reveals that the Veteran was not exposed to Agent Orange or any other tactical herbicide agent during his period of service. The Board finds it to be particularly significant that the Veteran's record is negative for medical documentation of diagnosis of diabetes until 2001, approximately 34 years after the Veteran's separation from active duty. See Maxson v. West, 12 Vet. App. 453, 459 (1999). Despite the Veteran's contentions that his diabetes is related to his period of service, the most probative evidence simply weighs against service connection at this time. In reaching this conclusion, the Board acknowledges that the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application in this case and service connection is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. Neuropathy of the feet With respect to claim for neuropathy of the feet, the Veteran asserts that this condition is due to his diabetes mellitus. The Board has determined that service connection for diabetes mellitus is not warranted. As such, there is no basis upon which to grant service connection for neuropathy of the feet on a secondary basis. 38 C.F.R. § 3.310. In this case, the Veteran does not assert and the evidence does not show that his neuropathy of the feet manifested during service or within one year of separation. The Board notes that the medical evidence of record indicates that the Veteran did not develop neuropathy of the feet until many years after discharge from service and none of the medical evidence indicates that the Veteran's current neuropathy of the feet is in any way related to service. Consequently the Veteran is not entitled to service connection for neuropathy of the feet on a direct basis, or on a presumptive basis for a chronic disability that developed within a year of discharge from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. For the foregoing reasons, the claim for service connection for neuropathy of the feet must be denied. In arriving at the decision to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. In the absence of competent evidence to support the claim, however, that doctrine is not applicable. See Gilbert. ORDER Entitlement to service connection for type II diabetes mellitus to include as due to exposure to chemicals, including Agent Orange, is denied. Entitlement to service connection for neuropathy of the feet (claimed as numbness of the lower extremities) as secondary to diabetes mellitus is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs