Citation Nr: 1116659 Decision Date: 04/29/11 Archive Date: 05/05/11 DOCKET NO. 06-32 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from October 1974 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of July 2005. In March 2010, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). FINDINGS OF FACT 1. Diabetes mellitus was first manifested many years after service, and is unrelated to any events which occurred in service. 2. The Veteran did not serve in Vietnam, nor has actual exposure to Agent Orange been demonstrated. 3. The Veteran has not been shown to have been exposed to any other chemical etiologically related to diabetes mellitus. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, such as diabetes mellitus, will be rebuttably presumed if manifest to a compensable degree within one year after separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection, a Veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Numerous medical records, dated from 1999 to 2008, show that the Veteran currently has diabetes mellitus, satisfying the first element. Concerning the second element, service medical records do not show the presence of diabetes mellitus in service, and the medical evidence as well as the Veteran's testimony indicates diabetes mellitus was first diagnosed between 1997 and 1999, many years after service. There is no evidence indicating the presence of diabetes mellitus within a year of his separation from service, nor was diabetes mellitus shown to have been manifested to a compensable degree within one year following the Veteran's separation from service. The Veteran contends, however, that he was exposed to Agent Orange while he was on active duty, and that this caused his diabetes mellitus. VA law provides that service incurrence for certain diseases, including type 2 diabetes, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id.; see MR21-1MR, Part IV, Subpart ii, Chapter 2, § C; Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran did not serve in Vietnam; therefore, exposure may not be presumed on that basis. The Veteran contends that he was exposed to Agent Orange while stationed at the Naval Weapons Station, Concord, California, (Concord NWS) in 1975. He testified at his Board hearing that he was an Explosives Loading Supervisor, and as such loaded Agent Orange barrels that had come from the East Coast and were on their way to Johnston Atoll to be destroyed. He testified that many of these barrels were leaking, and that he wiped up the leaks. In support of his contentions, he was submitted a written statement dated in April 2007 from R.L.R.L.Y., who said he was the Veteran's commanding officer in 1975. He stated that during that time, cargoes of Agent Orange came through the Concord facility, and the EXPLOSIVE LOADING SUPERVISOR were exposed to the cargo. In addition, B.D.D. wrote, in September 2008, that he had been the leading Petty Officer at USCG Port Station from 1973 to 1978, and that during that time, several cargo ships were loaded with a mixture of hazardous chemicals. He said the chemicals were "commonly known" to include chemicals such as Agent Orange, although the cargo was listed and handled as Coast Guard class explosives for "compatibility." Medical evidence in support of his claim includes an Agent Orange registry examination, performed in December 2008, which noted that the Veteran was exposed to Agent Orange during his service in the Coast Guard. The report states that he was exposed to Agent Orange in 1975 at Port Chicago, California, when he was supervising the loading of drums of hazardous chemicals including dioxin, and that some of the drums were leaking. In addition, private medical records contain a history of Agent Orange exposure, and relate the Veteran's diabetes mellitus to such exposure. The authors of these opinions, however, have not indicated any independent basis for their conclusions that the Veteran was exposed to Agent Orange, other than what is contained in the record. Thus, the opinions are of no probative value concerning the question of exposure to Agent Orange, and they do not provide any support for the Veteran's assertion that he was exposed to Agent Orange during service, as they merely restate his own history. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere recording of the Veteran's reported medical history does not constitute competent medical evidence); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (Board is not obliged to accept an opinion based on inaccurate medical history). In this regard, the service department has been unable to verify that Agent Orange was present at Concord NWS. The VA office responsible for verification of Agent Orange exposure, based on evidence provided by the service department, responded, in December 2008, that a list containing 71 sites within U.S. and foreign countries where the use of Agent Orange was acknowledged had been reviewed, and did not include Concord. Such a report provides strong factual evidence against this claim. In addition, the Department of Defense (DoD) had provided VA with a series of official monographs describing, in detail, the use, testing, and storage of herbicides at various locations. These did not show any use, testing, or storage of tactical herbicides such as Agent Orange at Concord. Further, the detailed statement from R.L.Y. did not fit with several official facts and documents. Agent Orange use in Vietnam was terminated in early 1971, and remaining stores were sent to JOHNSTON ISLAND in the Pacific for holding and eventual incineration at sea in 1977. Other stockpiling was at Gulfport, where stores were kept until 1977. DoD records contained no reference of any other locations where Agent Orange was stored. There was no mention of a need to reclassify Agent Orange as a chemical weapon and destroy it in 1975. The RO then sent a request to U.S. Armed Services Center for Research of Unit Records (CRUR), which responded, in December 2008, that to date, they were unable to locate any documentation which would verify that Agent Orange was stored or transported to or from the U.S. Coast Guard Station, Naval Weapons Station, Concord, California, in 1975. Further, Concord was not an herbicide spray area. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining credibility, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Although an appellant's testimony cannot be rejected simply because it was not reported contemporaneously to service, or noted in the service medical records, the Board still must determine whether lay evidence is credible, in light of factors such as possible bias or conflicting statements, and the absence of contemporaneous medical evidence is a factor that may be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board does not find the statements of the Veteran's exposure to Agent Orange during his Coast Guard service to be credible. It should be pointed out, however, that in this context, lack of credibility does not necessarily imply an intentional misstatement of fact. In this regard, the Veteran is attempting to recollect events that transpired approximately 30 years before the first mention of the activities, and appears to sincerely believe that he was exposed to Agent Orange. The Veteran seems to believe that the drums he saw in service were Agent Orange containers. Based on the Veteran's testimony, it is very unclear to the Board how the Veteran would recall seeing containers of Agent Orange decades earlier and somehow distinguish these containers from other containers routinely seen at a military base. His testimony on this point and why someone from the Coast Guard would be transporting such items was, at best, very unclear. When questioned about this issue by the undersigned it appeared clear that his recollection of events from so many years ago was based on working manuals he had recently reviewed, not on his actually recollection of events many years ago. His recollection of events appeared highly imprecise. At hearing, the Veteran seems to suggest that he was transporting Mustard Gas, Lucite Gas, Biological Weapons, Chemical Weapons, explosives, and leaking Agent Orange. However, there is no official documentation that Agent Orange was transported through the Concord, California, NWS, and the explanations as to this omission are not persuasive. R.L.Y. stated, in August 2007, that he had been a former operations officer, executive officer, and acting commanding officer of the USCG Port Safety Station at the NWS at Concord from mid-1972 through mid-1975. He indicated that he had supervised on-board, preload, loading, and post load cargo inspections of merchant and MSTS ships carrying all manner of munitions in support of U.S. military operations in the Pacific and Indian Oceans. He stated that under ordinary circumstances, "dioxin (Agent Orange)" would not have been a cargo item, as prior to 1975 it was classified as an herbicide, not a chemical weapon. He stated that during 1975, the U.S. was frantically disposing of its Bio-Chem arsenal to comply with recent international agreements that in addition to time limits, "indirectly required Dioxin to be classified as a chemical weapon." He stated that most Bio-Chem munitions were shipped from east coast ports, but as "crunch time drew near, the overflow was routed to west coast." There are a number of problems with this statement. First, he did not provide any support for his assertion that Agent Orange had been classified as a chemical weapon. The Veteran submitted information published by the State Department concerning a 1975 international agreement to destroy, within nine months, all biological and chemical weapons, agents, and toxins with no peaceful purposes. It appears that R.L.Y. may be referring to this agreement, since, according to an article submitted by the Veteran, from a website entitled "sunshine-project.org," the use of Agent Orange and similar herbicides was discussed at that convention. Specifically, according to this information, in April 1975, the United States renounced first use of herbicides in war except for control of vegetation in and around U.S. bases and installations. Later, in April 1976, the U.S. agreed that the use of herbicides as an instrument for upsetting the ecological balance of a region was prohibited by the agreement, but retained the right to use herbicides to control vegetation in and immediately around military installations. Thus, according to this information supplied by the Veteran, the U.S. did not agree to a complete ban on the use of the herbicides, and it was not until 1976 that the U.S. agreed to limit the use to clearing military installations. Accordingly, there is no evidence that Agent Orange was included in the destruction of biological and chemical weapons conducted in 1975, or that Agent Orange was reclassified as a chemical weapon. Indeed, inasmuch as the U.S. was defending its right to use the herbicides at that time, classification as a chemical weapon would seem to undermine such efforts. Moreover, Agent Orange stockpiles were not destroyed in accordance with this timeline; it was not until 1977 that the U.S. destroyed its supplies, which were stored at Johnston Island and Gulfport, miles away from the Veteran. Likewise, R.L.Y. has provided no persuasive arguments for the lack of official verification that Agent Orange was transported through Concord NWS. He said that several ships loaded during this period had a "very mixed load of what we now know to be at the very least 'Hazardous Chemicals' (don't ask and don't tell was in effect)." He said that dioxin, "now commonly known as Agent Orange" was present. (Actually, this definition is not correct; Agent Orange was one of a number of herbicides that contained dioxin as an ingredient.) He wrote that because of the "exigencies of the situation these loads were expedited and loaded by 'direction of highest authority'." He said that the "loading plans provided to the on-board teams list[ed] only military classification of the munitions." To the extent that this seems to suggest that perhaps Agent Orange was not identified as such, the Board finds that such assertions lack credibility. As mentioned above, the Board finds that there were no such "exigencies" concerning the disposal of Agent Orange at that time. In this regard, the Sunshine Project excerpt submitted by the Veteran indicates that the primary objection at the time was Agent Orange's use as a herbicide, and the consequent upset in the ecological balance of a region. It does not support the Veteran's argument that there was an emergency rush to destroy Agent Orange stockpiles in a reckless manner in facilities never used for such actions. The Board has reviewed the Veteran's argument in great detail. Although it is reasonable that shipments of the biological and chemical weapon substances covered by an international agreement would have been undertaken with a high level of secrecy and security, it is not credible that Agent Orange would have been considered more sensitive, in terms of secrecy and security, such that no official record would now exist. In fact, this makes no logical sense to destroy an Agent Orange stockpile and deliberately leave no record of its destruction for verification with international authorities that you have, in fact, destroyed the stockpile you agreed to destroy. The fact that he is destroying all these alleged biological and chemical weapons makes even less sense. In this regard, with the passage of time, the Department of Defense has released information in its custody concerning the storage and transport of Agent Orange, but has not discovered the transportation of Agent Orange or other related herbicides through NWS in Concord in 1975. B.D.D.'s statement that hazardous chemicals loaded at that time were "commonly believed" to be Agent Orange is without probative value, as he is simply reporting a rumor, without any direct knowledge of the contents. Moreover, it is inconsistent with the Veteran's testimony that the barrels were labeled as herbicides and contained the characteristic orange band. Finally, the Veteran's own statements as to the presence of Agent Orange at Concord, as well as his own exposure to the substance, also lack credibility. For one thing, his statements as to his duties are not corroborated by the official record. In numerous statements, he said he was an Explosive Loading Supervisor, and, as such, responsible for various supervisory activities involving the loading and inspection of cargo aboard ships. In a December 2004 statement, he said he worked around civilian contract ships as well as Navy ships in this capacity. He stated that he was in charge of the safe handling of various kinds of munitions, chemicals, etc. He stated that he "supervised each pallet or canister as it made its way from the railroad car to the docks and from the docks into the holds of the ships by way of shipboard cranes." At his hearing, he testified that he first inspected the rail cars, and then was aboard ship when the containers came on board. He said that Teamsters unloaded the cargo onto the piers, and that stevedores would sling the cargo and bring it on board ship via cranes. Hearing transcript, page 8. He testified that he had to supervise security precautions. Hearing transcript, page 19. He testified that he, personally, had to recooper barrels of Agent Orange, which he described as some of the "screw tops" having loosened after being in a rail car cross country; and some of the liquid had spilled out, which he would just wipe up. Hearing transcript, page 10. Nevertheless, official service department personnel records do not show that the Veteran was an Explosive Loading Supervisor during the time period at issue. In this regard, while he successfully completed a 2-week course for Explosive Loading Supervisors in January 1975, the evidence does not show that the ever acted in that capacity. He completed winch and hatchtender school and forklift explosives operator school in April 1975, but the numerous personnel records never refer to the Veteran as an explosive loading supervisor. Moreover, he was a Seaman Apprentice during the relevant time period, with less than one year of active duty, which is also incompatible with his assignment in a supervisory capacity, especially one with authority as he described. The Veteran provided a booklet, which he said he relied upon heavily during this period in service, entitled "Rules and Regulations for Military Explosives and Hazardous Munitions," published by the Coast Guard in April 1972, which contains a provision for "explosives loading supervisory detail." See 46 38 C.F.R. § 146.29-19 (1972). This detail could be assigned to any vessel loading, handling, or discharging military explosives to supervise the loading, handling, or discharge of military explosives. Id. Authority was given to the person in charge of such detail. Id. The Board does not find it incredible that the Veteran may have been a part of such an explosive loading supervisory detail during this period, under the supervision of an individual in charge. Indeed, in his initial claim, received in September 2004, the Veteran did not state that he had been an Explosive Landing Supervisor, but said that he said he had been trained in Explosive Loading Supervisor, winch/hatch tender, and forklift explosives operations, and that afterwards, started working on the docks loading all types of munitions, including Agent Orange. While more consistent with what might be expected of a Seaman Apprentice, his detailed statements concerning his supervisory duties, which the Board does not find credible, have tainted his credibility. Specifically, the Board is not persuaded that Agent Orange was among the substances handled by the Veteran, containerized or otherwise. In several statements, the Veteran stated that he had to wipe up spills of chemicals including Agent Orange. He said that in inspecting below-decks, he often had to crawl over the barrels. He stated that Agent Orange barrels were marked as herbicides, and the barrels had 3-inch bands of orange around them. The copy of "Rules and Regulations for Military Explosives and Hazardous Munitions" provided by the Veteran does not include herbicides, and he testified that he was not trained in how to handle Agent Orange, but that it came from the East Coast due to "them" not being able to "handle the timelines" of the treaties. For the reasons discussed above, however, the Board does not find it credible that Agent Orange shipped through Concord NWS in connection with the agreements to destroy biological and chemical weapons during 1975. Moreover, his statement that Agent Orange had to be stored with chemical weapons due to "compatibility factors" is not entirely consistent with his claimed lack of training in handling Agent Orange. The Veteran also testified that he had been told that the herbicides would not hurt humans, only plants, and therefore, just used a rag to wipe off the drums which he carried in his pocket. However, it is not necessary to more specifically address the credibility of his statements concerning this matter, because the Board finds that the evidence establishes that dioxin-containing herbicides such as Agent Orange were not transported through the Concord NWS during the months that the Veteran claims to have worked in explosive loading during 1975. In sum, there is no official record that Agent Orange was transported through Concord NWS, and the lay evidence, for the reasons discussed above, is not persuasive, providing limited probative weight in support of this claim, clearly outweighed by the evidence against this claim. The Veteran also submitted a 2005 report of a Public Health Assessment for the Concord NWS area, which addressed the presence of numerous chemicals in the area, from a public health standpoint, as of 2005. The portion of the report concerning dioxin was based on environmental dioxin, as determined by the presence in fish in the bay, and not on Agent orange. Page C-14 of this report noted that dioxins are a group of 75 chemically-related compounds commonly known as chlorinated dioxins. Even though they are not naturally occurring, they are found everywhere in the environment. They are not intentionally manufactured except for research purposes. They may be formed during the chlorine bleaching process sat pulp and paper mills, the chlorination process at waste and drinking water treatment plants, and the manufacturing of certain organic chemicals. They could be released into the air in emissions from municipal solid waste and industrial incinerators. In the study, dioxins were found to be in increased levels in fish in the bay. By estimating a specific level of bay fish consumption, and estimating that all exposure was to the most toxic type of dioxin, the study concluded that there was no elevated risk for non-cancer effects of dioxin exposure. It was also concluded that the risk for cancer effects was a chronic minimum risk level. This was based on a theoretical lifetime increased risk of more than one cancer death for every ten million people exposed. Moreover, the study sought to assess the adverse health affects on people who lived in the area in 2005, and to estimate a lifetime exposure of 30 years at the current levels of contamination. It did not address, or claim to address, the dioxin level in 1975, or the effects of exposure, through the consumption of fish, on an individual in the area for a period of several months. Finally, as noted, the risk for non-cancerous effects was found to be nil. Thus, this study neither corroborates the presence of Agent Orange at Concord, nor establishes the Veteran's exposure to other dioxin compounds, which, in any event, are found everywhere, according to the report. The presumptive law applies specifically to herbicides. See 38 U.S.C.A. § 1116. This does not mean that actual causation cannot be established; simply that the presumptions do not apply. The Veteran also contends that in his explosive loading duties, he was exposed to numerous other hazardous chemicals, including mustard gas, lewisite, and many others. The Public Health Assessment also discusses other chemicals. No further discussion or development need be undertaken concerning this contention, however, because there is no competent evidence suggesting a connection between exposure to any such chemical and diabetes mellitus. Diabetes mellitus is not a disease presumptively associated the exposure to vesicant agents, such as mustard gas and lewisite. See 38 C.F.R. § 3.316 (2010). Actual causation has not been demonstrated. The Board concludes that the Veteran was not exposed to herbicides such as Agent Orange during service, and that no other chemical to which he claims to have been exposed is etiologically related to diabetes mellitus, and that diabetes mellitus was not of service onset, or related to service. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in December 2004, prior to the initial adjudication of the claim, the RO advised the claimant of the information necessary to substantiate the claims for service connection, and of his and VA's respective obligations for obtaining specified different types of evidence. He was specifically advised of the requirements for establishing entitlement to service connection for conditions based on exposure to herbicide agents including Agent Orange. He was advised of various types of lay, medical, and employment evidence that could substantiate the various elements of his service connection claim. He was provided another letter informing him of the evidence and information needed to establish service connection in a letter dated in December 2008; this letter also provided the Veteran with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in a June 2009 supplemental statement of the case, thus curing any timing defect in the provision of this aspect of the notice. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). The Veteran's service treatment and personnel records have been obtained. All identified VA and private medical records have been obtained, and a VA Agent Orange protocol examination was provided in December 2008. Because the matter turns on whether the Veteran was exposed to Agent Orange, no further examination is needed. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). All possible efforts to verify Agent Orange exposure have been undertaken, including contacting the U.S. Armed Services Center for Research of Unit Records (CRUR) (now known as Joint Service Records Research Center (JSRRC)). The Veteran waived initial RO consideration of evidence received after the Veteran's Travel Board hearing. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs