Citation Nr: 1008317	
Decision Date: 03/05/10    Archive Date: 03/11/10

DOCKET NO.  03-08 134	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Jackson, Mississippi


THE ISSUE

Entitlement to service connection for diabetes mellitus 
Type II, claimed as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from March 1962 to March 
1965.

This matter initially came to the Board of Veterans' Appeals 
(Board) on appeal from a November 2001 decision of the RO 
that, in pertinent part, denied service connection for 
diabetes mellitus Type II.  The Veteran timely appealed.

In May 2003, the Veteran testified during a hearing before RO 
personnel.

In April 2005, the Veteran testified during a hearing before 
the undersigned in Washington, D.C.  In August 2005, the 
Board remanded the matter for additional development.

In a February 2009 decision, the Board denied service 
connection for diabetes mellitus Type II. 

The Veteran appealed the February 2009 Board decision to the 
United States Court of Appeals for Veterans Claims (Court).  
In a July 2009 Joint Motion for Remand, the parties moved to 
vacate the Board decision and remand the case to the Board.  
The Court granted the motion.  Thereafter, the case was 
returned to the Board.


FINDINGS OF FACT

1.  The record reflects no evidence that the Veteran served 
in Vietnam, and no credible evidence of in-service exposure 
to herbicidal agents.

2.  Diabetes mellitus Type II was first demonstrated many 
years after service; and is not related to a disease or 
injury in service, including exposure to herbicidal agents.


CONCLUSION OF LAW

Diabetes mellitus Type II was not incurred or aggravated in 
service, and may not be presumed to have been incurred 
therein.  38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 
3.307, 3.309, 3.313 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA 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. 2009); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  

VA should notify the Veteran of:  (1) the evidence that is 
needed to substantiate the claim(s); (2) the evidence, if 
any, to be obtained by VA; and (3) the evidence, if any, to 
be provided by the claimant.  Pelegrini v. Principi, 18 Vet. 
App. 112 (2004); see also Notice and Assistance Requirements 
and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) 
(codified at 38 C.F.R. Part 3).

Through March 2001 and October 2005 letters, the RO or VA's 
Appeals Management Center (AMC) notified the Veteran of 
elements of service connection, and the evidence needed to 
establish each element.  These documents served to provide 
notice of the information and evidence needed to substantiate 
the claim.

VA's letters notified the Veteran of what evidence he was 
responsible for obtaining, and what evidence VA would 
undertake to obtain.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b).  VA informed him that it would make reasonable 
efforts to help him get evidence necessary to support his 
claim, particularly, medical records, if he gave VA enough 
information about such records so that VA could request them 
from the person or agency that had them.

The Veteran was not provided with notice of the type of 
evidence necessary to establish a disability rating or to 
assign an effective date for the disability on appeal.  See 
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the 
Board addresses a question that has not been addressed by the 
agency of original jurisdiction, the Board must consider 
whether the Veteran has been prejudiced thereby).  The Board 
finds no prejudice to the Veteran in proceeding with a denial 
of the claim for service connection, as concluded below, 
because any question as to the appropriate disability rating 
and effective date to be assigned is rendered moot.  The 
Veteran had previously received all required notice regarding 
service connection.  The claim denied for service connection 
obviously does not entail the setting of a new disability 
rating or an effective date.  Accordingly, the Veteran is not 
harmed by any defect with regard to these elements of the 
notice.

Defects as to the timeliness of the statutory and regulatory 
notice are rendered moot because the Veteran's claim on 
appeal has been fully developed and re-adjudicated by an 
agency of original jurisdiction after notice was provided.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

There is no indication that any additional action is needed 
to comply with the duty to assist the Veteran.  The RO or AMC 
has obtained copies of the service treatment records and 
outpatient treatment records, and has arranged for a VA 
examination in connection with the claim on appeal, a report 
of which is of record.  The Veteran has not identified, and 
the record does not otherwise indicate, any existing 
pertinent evidence that has not been obtained.

Regarding notification of the inability to obtain records, as 
discussed in the Joint Motion for Remand, the Veteran had 
first reported in March 2001 that private treatment records 
from the Hollandale Clinic for the years 1966 to 1973 were 
not recoverable.  The January 2003 statement of the case also 
indicated that these records could not be located.  In May 
2003, the Veteran testified that the Hollandale Clinic could 
not find the records.  In December 2003, the RO notified the 
Veteran that a request for records from the Hollandale Clinic 
had not been made because the Veteran did not properly 
complete a VA Form 21-4142.  In January 2004, the Veteran 
submitted a completed VA Form 21-4142; and indicated that the 
private treatment records from the Hollandale Clinic for the 
years 1965 to present had already been requested.  Later that 
same month, the RO requested the records.  The June 2004 
supplemental statement of the case indicated that a reply 
from the Hollandale Clinic had been received, and that 
treatment records from another facility for the years 1994 to 
2002 had been received.  In April 2005, the Veteran testified 
that attempts were made to get records back from the 
Hollandale Clinic, but that the Hollandale Clinic could not 
find the records and could not come up with them.  A 
statement received from the Veteran in July 2005 indicated 
that these records could not be located.  In October 2006, 
the Veteran again indicated that private treatment records 
from the Hollandale Clinic for the year 1966 were never 
recovered.  The reply received from the Hollandale Clinic 
revealed that all records prior to 1995 have been destroyed.  
Given this chronology, it is clear that the Veteran had 
actual knowledge of the attempts to obtain the records from 
the private clinic.  He was not prejudiced by any failure of 
the agency of original jurisdiction to provide notice in the 
format outlined in 38 C.F.R. § 3.159(e).  

Given these facts, it appears that all available records have 
been obtained.  There is no further assistance that would be 
reasonably likely to assist the Veteran in substantiating the 
claim.  38 U.S.C.A. § 5103A(a)(2).

II.  Analysis

Service connection is awarded for disability that is the 
result of a disease or injury in active service.  38 U.S.C.A. 
§§ 1110, 1131.

Service connection requires competent evidence showing: (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), 
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see 
also Caluza v. Brown, 7 Vet. App. 498 (1995). 

The Veteran contends that service connection is warranted on 
the basis that his current diabetes mellitus Type II is the 
result of exposure to herbicides in service.

The Board notes that, in the absence of evidence of actual 
duty or visitation in Vietnam, the Veteran is not entitled to 
a presumption of Agent Orange, or other herbicide, exposure.  
38 U.S.C.A. § 1116(f).

Direct service connection is for consideration for claims 
based on alleged exposure to herbicide agents in locations 
other than Vietnam.  See 38 C.F.R. § 3.303(d); VA 
Adjudication Procedure Manual M21-1, Part VI, paras. 7.01(a), 
7.01(e), 7.20(b).  Such exposure must be established on a 
factual basis.  Id.  

The Veteran's service treatment records do not establish, or 
even suggest, actual exposure to herbicide agents in service.  
The Veteran reports that, while working as a plane captain on 
the flight deck aboard the USS Hancock (CVA-19) in the South 
China Sea, he cleaned the planes after the military flew 
missions over Vietnam daily; and he tied the planes down, and 
prepared the planes before the flights.  He alleges that he 
was exposed to herbicides in performing these tasks, and that 
there were several propeller planes that were "probably used 
with defoliant."

The Board remanded this matter in August 2005 solely for 
purposes of establishing such exposure on a factual basis.  
The service personnel records and the deck logs added to the 
claims file have not reflected any exposure to herbicide 
agents.  Hence, there is no evidence to substantiate the 
Veteran's allegations of actual exposure to herbicide agents 
in service.  

The Veteran is competent to offer statements of first-hand 
knowledge of cleaning planes and preparing the planes before 
the flights in service.  See Bostain v. West, 11 Vet. App. 
124, 127 (1998).  It is not clear how he could tell that he 
was exposed to herbicides or that the aircraft he cleaned and 
prepared for the flights had participated in defoliant 
operations in Vietnam.  Historical records for the USS 
Hancock (CVA-19) reflect the ship's participation in combat 
deployments in 1965.  There is no indication that these 
deployments involved defoliant operations.  Moreover, the 
defoliant operations in South East Asia primarily involved 
Project RANCH HAND, which consisted of aircraft and crew 
performing operational missions from the air bases near 
Saigon in South Vietnam.  As discussed above, the Veteran's 
official service records do not contain any support for the 
assertion.  While the Veteran contends that he was exposed to 
herbicides in service, this is not convincing.  

In addition, his service treatment records do not contain 
manifestations, complaints, or findings of diabetes mellitus 
Type II.  The Veteran's assertions that he experienced 
"sugar spillage" in service are contradicted by 
contemporaneous service treatment records revealing a normal 
endocrine system, and urinalysis as negative for both albumin 
and sugar, at both his entry and separation examinations.   

The Veteran has now claimed to be a diabetic from when he was 
diagnosed with nonspecific urethritis in service.  There is a 
finding of acute urethritis in service in February 1965.  
Laboratory testing at that time was consistent with a 
diagnosis of gonorrhea.  While a layperson is certainly 
capable of providing evidence of symptomatology, a layperson 
is generally not capable of opining on matters requiring 
medical knowledge or expertise, such as the condition causing 
the symptoms.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992) 
and Stadin v. Brown, 8 Vet. App. 280, 284 (1995).  Here, the 
Veteran is competent to describe any symptoms that occurred 
in service; he is not competent to diagnose a disability.  No 
current disability was diagnosed in service.  Again, the 
Veteran's allegations are unconvincing and not supported by 
anything else in the record.

There is no evidence of diabetes mellitus Type II manifested 
to a compensable degree within the first post-service year, 
to warrant service connection for diabetes mellitus on the 
basis of presumptions referable to chronic diseases.

For the showing of chronic disease, there must be a 
combination of sufficient manifestations to identify the 
disease entity and sufficient observation at the time, as 
distinguished from isolated findings or a diagnosis including 
the word "chronic".  38 C.F.R. § 3.303 (2009).  

The post-service treatment records, in this case, first 
reveal a diagnosis of diabetes mellitus in March 1998.  

A VA examiner in March 2006 reviewed the Veteran's claims 
file, and diagnosed the Veteran with diabetes mellitus Type 
II.  The examiner found no records of diabetes mellitus in 
service.  Given the absence of evidence of diabetes mellitus 
in the decades immediately following service, a clear 
preponderance of the evidence is against a finding of 
continuity of symptomatology of diabetes mellitus Type II 
from service.  The examiner also was unable to determine, 
without resorting to speculation, as to the relationship of 
diabetes mellitus to service.

Accordingly, there is no competent evidence of a nexus 
between any diabetes mellitus, first diagnosed many years 
post-service, and the Veteran's military service.  Nor has 
the Veteran alluded to the existence of any such medical 
evidence.

In July 2009 attorneys for the VA General Counsel asked the 
Court to vacate and remand the Board's February 2009 
decision.  It was specifically asserted that the Veteran's 
credibility had not been adequately discussed.  The Board has 
completely reviewed the record and issued a new decision.  
Just to make sure we respond to the previous criticism, we 
here emphasize that the claim is based solely on the 
Veteran's statements and they are not credible.  Veteran 
makes several points.  He is competent to report that he 
cleaned aircraft that operated over Vietnam and that report 
is credible.  To work, herbicides must stay on the ground 
where the plants are.  On the other hand, aircraft hopefully 
stay up in the air.  This is usually quite away up to avoid 
ground fire.  It is unlikely that the aircraft would be 
exposed to herbicides.  Absent some sort of expert analysis 
of the dust on the aircraft, it is purely speculative and far 
beyond the Veteran's competence to assert that cleaning 
aircraft exposed him to Agent Orange or any other herbicide.  
For this reason, his statements to the effect that cleaning 
aircraft aboard an aircraft carrier exposed him to Agent 
Orange are not credible.  

The Veteran has also alluded to the possibility that some of 
the aircraft on his ship may have been used to spray 
herbicides.  As discussed above, Agent Orange was primarily 
sprayed by US Air Force aircraft, and from some US Army 
helicopters, all operating from land bases in Vietnam.  There 
is no record of the Navy in general or the Veteran's ship in 
particular participating in the program.  After hearing the 
Veteran's testimony in person, this Acting Veterans Law Judge 
was left with the distinct impression that the Veteran was 
speculating and "grasping at straws" when he raised the 
possibility of some aircraft aboard his ship being used to 
spray herbicides.  Consequently, the Board finds that the 
Veteran's statements to the effect that he was exposed to 
Agent Orange by having the spraying aircraft aboard his ship 
are not credible.  

Finally, the Veteran has contended that diabetes was 
manifested by various illnesses in service, or within the 
year after service.  He does not have the medical training 
and experience to diagnose his various symptoms.  38 C.F.R. 
§ 3.159(a).  The diagnoses rendered at the time by trained 
medical professionals who observed his symptomatology, 
performed necessary tests, and treated him are substantially 
more probative than his claims.  Thus, his claims of diabetes 
symptoms in service or within the first post service year are 
not credible.  

In conclusion, there is no credible evidence that the Veteran 
was exposed to Agent Orange or any other herbicide during his 
active service.  Neither is there any credible evidence that 
diabetes mellitus was manifested during service or within the 
first year after he completed his active service.  

The medical records in this case form a preponderance of 
evidence which show the onset of diabetes mellitus was many 
years after the Veteran completed active service, with no 
connection to that service.  As the preponderance of the 
evidence is against the claim, the benefit of the doubt 
doctrine is not applicable and the appeal must be denied.  
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  




ORDER

Service connection for diabetes mellitus Type II is denied.




____________________________________________
C. R. Olson
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs