Citation Nr: 1030698 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 04-38 359A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1973. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In January 2007, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In October 2007, the Board remanded the appeal for further development. FINDING OF FACT Type II diabetes mellitus did not have its onset in service or for many thereafter and it is not related to any incident of service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009), was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. The Board notes that a "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim in the September 2002 rating decision, he was provided notice of the VCAA in January 2002. The VCAA letter indicated the types of information and evidence necessary to substantiate a claim for service connection, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. Thereafter, the Veteran received additional notice in December 2007, pertaining to the downstream disability rating and effective date elements of his claim, with subsequent readjudication in an April 2010 supplemental statement of the case (SSOC). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Mayfield, 444 F.3d 1328; Pelegrini, 18 Vet. App. 112. In the October 2007 remand, the Board requested, in part, that the RO ask the Veteran to identify any additional medical evidence, including the VA physician who told him that his diabetes mellitus was related to pesticides he worked with while at Fort Hood; take appropriate action to identify the pesticides the Veteran allegedly used while working on Project Transition at Fort Hood; and afford the Veteran a VA examination. The RO asked for the above information via a December 2007 letter, but the Veteran did not reply. To identify the pesticides the Veteran allegedly used, the RO contacted the Department of the Army, National Personnel Records Center (NPRC), Freedom of Information and Privacy Act (FOIA) Office, and Fort Hood. The RO afforded the Veteran a VA examination in December 2008. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment and personnel records, VA outpatient treatment reports, a VA examination, and statements and testimony from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2009). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection may be presumed for certain diseases, including diabetes mellitus, if the disease manifests to a degree of 10 percent within one year after separation from service or if a veteran has been exposed to certain herbicide agents. 38 C.F.R. § 3.309(e) (2009). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, from February 28, 1961, 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 U.S.C.A. § 1116 (f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2009). Analysis The Veteran contends that he has diabetes mellitus due to exposure to herbicides (Agent Orange) in service. On his December 2001 claim, he stated that he may have been exposed to Agent Orange while stationed in Korea from December 1970 to December 1971. In August 2002 correspondence, he stated that he may have been exposed to Agent Orange while stationed at Fort Hood from September 1972 to March 1973 spraying homes, buildings, and fields to control pests while working with civilian employees in the entomology department as part of Project Transition. The service treatment records do not reflect, and the Veteran does not contend, that he developed diabetes mellitus in service. The Board notes that, although he was treated for glycosuria, further evaluation confirmed that he did not have diabetes mellitus. Thus, diabetes mellitus did not have its onset in service. Post-service medical records establish a diagnosis of type II diabetes mellitus many years after service. The earliest report of the disorder is in an October 1995 VA hospital discharge report, which reflects a history of diabetes mellitus. On his claim, the Veteran stated that he was diagnosed in 1993. The passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, diabetes mellitus did not have its onset until many years after service. The service personnel records reflect that he was assigned to Fort Hood on January 1972 and to Korea prior to that time. The service treatment records reflect that he was in Korea as early as December 1970. Initially, the Board observes that the Department of Defense has confirmed that Agent Orange was used in Korea from April 1968 through July 1969 along the DMZ. As this was prior to the Veteran's entry into active service, the record does not support his contention that he was exposed to Agent Orange in Korea. As regards the Veteran's contention that he may have been exposed to Agent Orange while stationed at Fort Hood from September 1972 to March 1973 while working with civilian employees in the entomology department as part of Project Transition, the objective evidence of record does not support his contention. As noted earlier, the RO contacted several agencies to identify the pesticides the Veteran allegedly used at Fort Hood while participating in Project Transition. The Military History Institute of the Department of the Army replied that it did not have the resources with the type of information requested. The FOIA Office replied that it was only a referral point and referred the matter to the NPRC. The NPRC replied that the information requested was not a matter of record. The FOIA officer at Fort Hood initially replied that they were not able to locate any responsive records. She then forwarded information found by the historian. This information, however, does not document the use of any herbicides or pesticides at Fort Hood. Given the above, the evidence of record fails to show that Agent Orange was used at Fort Hood. Thus, without competent evidence that the Veteran was exposed to Agent Orange in service, his claim for service connection for diabetes mellitus as due to such exposure must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs