Citation Nr: 1030176	
Decision Date: 08/12/10    Archive Date: 08/24/10

DOCKET NO.  09-18 985	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Jill Mitchell


ATTORNEY FOR THE BOARD

D. Ganz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1961 to February 
1964.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2008 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, 
which, in pertinent part, denied service connection for diabetes 
mellitus.


FINDING OF FACT

Diabetes mellitus was not diagnosed in service or for many years 
thereafter, and a preponderance of the competent evidence is 
against a finding that the current diabetes mellitus is related 
to service, directly or presumptively.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus have 
not been met.  38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 
(2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

Upon receipt of a complete or substantially complete application, 
VA must notify the claimant of the information and evidence not 
of record that is necessary to substantiate a claim, which 
information and evidence VA will obtain, and which information 
and evidence the claimant is expected to provide.  38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a service 
connection claim: 1) Veteran status; 2) existence of a 
disability; (3) a connection between the Veteran's service and 
the disability; 4) degree of disability; and 5) effective date of 
the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 
Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd 
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the appellant pre-adjudication notice by letter 
dated in November 2007.  The pre-adjudication notification 
substantially complied with the specificity requirements of 
Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the 
five elements of a service connection claim, and; Quartuccio v. 
Principi, 16 Vet. App. 183 (2002), identifying the evidence 
necessary to substantiate a claim and the relative duties of VA 
and the claimant to obtain evidence.  

Additionally, the Veteran has neither alleged nor demonstrated 
any prejudice with regard to the content or timing of the 
notices.  See Shinseki v. Sanders, 129 U.S. 1696 (2009) 
(reversing prior case law imposing a presumption of prejudice on 
any notice deficiency, and clarifying that the burden of showing 
that an error is harmful, or prejudicial, normally falls upon the 
party attacking the agency's determination). 

A medical examination was not provided regarding the etiology of 
the claimed diabetes mellitus.  VA's duty to assist doctrine does 
not require that the Veteran be afforded a medical examination, 
however, because there is no competent or credible evidence, 
including credible lay statements of a continuity of 
symptomatology, indicating an association between an in-service 
event, exposure, or disability and the claimed diabetes mellitus.  
See McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); Charles 
v. Principi, 16 Vet. App. 370 (2002); 38 C.F.R. § 3.159 (c).

VA has obtained service treatment records (STRs) and assisted the 
Veteran in obtaining evidence.  All known and available records 
relevant to the issues on appeal have been obtained and 
associated with the Veteran's claim file; and the Veteran has not 
contended otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the Veteran is not prejudiced by a decision on 
the claim at this time.

Analysis

The Veteran seeks service connection for diabetes mellitus.  The 
Veteran claims that he was exposed to Agent Orange and other 
dioxins while he cleared foliage in northern training grounds at 
Camp Schwab, Okinawa, Japan, in 1962-1963.  The Veteran claims 
that he was never told what was used to kill vegetation and was 
working all over it.  The Veteran argues that a March 1997 Board 
decision, which granted service connection for prostate cancer on 
a presumptive basis based on exposure to dioxins for a service 
member who served in Okinawa, Japan, in 1961-1962, supports his 
claim.  

Board decisions are not precedential.  38 C.F.R. § 20.1303.  
Thus, any reasoning, conclusions, or other findings made in any 
other Board decision, including the Board decision dated in 
January 1998 submitted by the Veteran (which he noted was the 
March 1997 Board decision), has absolutely no relevance to this 
adjudication and the Veteran's claim will be decided on the basis 
of the individual facts of the case in the light of the 
applicable procedure and substantive law.  See Id.  

Service connection may be granted for a disability resulting from 
disease or injury incurred in or aggravated by service.  38 
U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Regulations also provide 
that service connection may be granted for a disability diagnosed 
after discharge, when all the evidence, including that pertinent 
to service, establishes that the disability is due to disease or 
injury which was incurred in or aggravated by service.  38 C.F.R. 
§ 3.303(d).

Generally, to prevail on a claim of service connection on the 
merits, there must be medical evidence of (1) current disability; 
(2) medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and (3) 
medical evidence or other competent evidence of a nexus between 
the claimed in-service disease or injury and the present disease 
or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); 
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the Veteran prevailing in either event, 
or whether a preponderance of the evidence is against a claim, in 
which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990).

The competent evidence of record indicates that the Veteran 
currently has diabetes mellitus.  Following service, an October 
2001 VA treatment record notes that the Veteran was given an 
assessment of diabetes mellitus.  An August 2007 VA examination 
report conducted for the Veteran's claim of erectile dysfunction 
notes that the Veteran has a history of diabetes for about 3.5 
years.  An April 2008 VA examination report notes a diagnosis of 
diabetes mellitus, type 2.  

The Veteran's STRs do not indicate that the Veteran was treated 
for, or complained of, any type of diabetes.  His February 1964 
separation examination does not note a diagnosis of any type of 
diabetes and a sugar laboratory finding was noted to be normal.  

However, if a Veteran was exposed to an herbicide agent during 
active military, naval, or air service, certain diseases, 
including diabetes mellitus, shall be service-connected, even 
though there is no record of such disease during service, 
provided further that the rebuttable presumption provisions of 38 
U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied.  38 
C.F.R. § 3.309(e).  

A Veteran who, during active military, naval, or air 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 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 C.F.R. § 3.307(a)(6)(iii).

The Veteran's personnel records, including his Form DD-214, do 
not indicate that the Veteran served in Vietnam during his period 
of service, nor does the Veteran contend that he did.  Thus, he 
is not presumed to have been exposed to herbicides pursuant to 38 
C.F.R. § 3.307.  

Nevertheless, the lack of entitlement to presumptive service does 
not preclude a claimant from establishing service connection with 
proof of direct causation.  See Combee v. Brown, 34 F.3d 1039, 
1043 (Fed. Cir. 1994). 

The Veteran claims that he was exposed to herbicides, including 
Agent Orange while serving in Japan.  The Veteran's personnel 
records do indicate that the Veteran served in Okinawa, Japan, 
during the period he claimed he did, and that his miliary 
occupational specialty was a machine gunner.  A document from the 
RO dated in May 2008 notes that a Department of Defense (DOD) 
listing, which lists 71 sites in the United States and foreign 
countries where herbicides/Agent Orange was used, does not 
indicate any use, testing, or storage, of herbicides in Okinawa, 
Japan.  Additionally, there is no DOD record of the Veteran's 
claimed small scale brush clearing around his base and no way to 
know the chemical content of any non-tactical herbicide use.  
Therefore, the Veteran's claimed exposure to herbicides, to 
include Agent Orange, is not supported by available records.  
Importantly, the Veteran himself acknowledged that he was never 
told what was used to kill vegetation, which casts doubt on his 
claim that he was exposed to dioxins, including Agent Orange, 
during service when he cleared vegetation in Okinawa, Japan.  

The first contemporaneous medical evidence of any treatment for, 
or diagnosis of, diabetes mellitus is more than 30 years after 
the Veteran was discharged from active service.  The passage of 
more than 30 years before any evidence of the disability weighs 
against a finding that such disability is related to service on a 
direct basis.  See Savage v. Gober, 10 Vet. App. 488 (1997); 38 
C.F.R. § 3.303. 

The negative evidence in this case heavily outweighs the positive 
evidence.  The Veteran may genuinely believe that his diabetes 
mellitus is related to his claimed herbicide exposure during 
service.  However, as a layperson, lacking in medical training 
and expertise, the Veteran cannot provide a competent opinion on 
a matter as complex as the etiology of his claimed disability and 
his views are of no probative value.  And, even if his opinion is 
entitled to be accorded some probative value, it does not 
outweigh the evidence of record which does not show that the 
Veteran was actually exposed to herbicides during service; which 
does show that the Veteran is not entitled to a presumption of 
exposure to herbicides during service; and does show that his 
diabetes mellitus did not develop for many years after service.  
See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007).

The preponderance of the evidence is against the claim; there is 
no doubt to be resolved; and service connection for diabetes 
mellitus is not warranted.  Gilbert, 1 Vet. App. at 57-58.


ORDER

Entitlement to service connection for diabetes mellitus is 
denied.





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs