Citation Nr: 1221911 Decision Date: 06/22/12 Archive Date: 07/02/12 DOCKET NO. 06-12 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to service connection for diabetes mellitus, to include as due to exposure to an herbicide agent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to February 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, denied the benefits sought on appeal. In a December 2009 decision, the Board affirmed the February 2005 rating decision. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated the Board's December 2009 decision and remanded the matter back to the Board. The Veteran presented personal testimony in support of his claim in June 2009 before a Veterans Law Judge who is no longer employed by the Board. The Veteran was afforded the opportunity for a new hearing, which he declined in April 2012. In June 2011, the Veteran raised claims for prostate cancer and a kidney growth, to include as due to exposure to herbicides. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam. 2. The Veteran was not exposed to herbicides at anytime during his active duty service. 3. Diabetes mellitus was not manifested during the Veteran's active duty service or for many years thereafter, nor is his diabetes mellitus otherwise causally related to such service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service nor may it be presumed to have been incurred in service, to include as a result of exposure to an herbicide agent. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a November 2004 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. 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). In this case, the RO provided VCAA notice to the Veteran in November 2004, which was prior to the February 2005 rating decision. After reviewing the November 2004 letter, the Board believes that it is arguable that the letter may not have fully advised the Veteran of all of the types of evidence necessary to substantiate his claim. However, the Board finds that the Veteran has demonstrated actual knowledge of such as evidenced by his various statements, testimony, and pleadings of his representative both before VA and before the Court. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. With regard to any lack of notice as to the manner of assigning effective dates and disability ratings, any such deficiency is harmless in view of the following determination by the Board. In sum, the Veteran is not prejudiced by any technical notice VCAA deficiency. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). Moreover, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Further no VCAA deficiency was identified by the Court in its August 2011 decision. Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment and personnel records, post-service VA and private medical records, internet and newspaper articles, photographs, a lay statement from JAK, the transcript from the June 2009 Board hearing, records from the Department of Defense (DoD) and a response from the U.S. Armed Services Center for Unit Records Research (now known as the U. S. Army and Joint Services Records Research Center (JSRRC)). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For reasons explained in the analysis section of this decision, the Board further finds that a VA examination with nexus opinion is not necessary as the Veteran was not exposed to herbicides during service. IN other words, there is no persuasive evidence establishing that an event, injury, or disease occurred during service or within an applicable presumptive period. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2010); Pelegrini, supra; Quartuccio, supra; Dingess, supra. II. Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era 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). Diseases associated with such exposure include diabetes mellitus. 38 C.F.R. § 3.309(e). This shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "Service 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). Recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 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. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The U.S. Supreme Court has denied further review of that decision, in Haas v. Peake, 129 S. Ct. 1002 (2009). However, if exposure to Agent Orange or other herbicide agent(s) during active service at any location were to be established by the evidence, then the above presumptions as to service connection of the listed diseases could be invoked. See 38 C.F.R. § 3.307(a)(6)(ii); see also Haas, supra (providing that, even where a veteran did not serve upon the landmass of Vietnam, he is always "free to pursue his claim that he was actually exposed to herbicides while" in service.) When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303 ; Combee at 1043-44. III. Analysis The Board has reviewed all the evidence in the Veteran's claims file, including all of the Internet articles submitted by the Veteran regarding the testing and use of herbicides in various countries. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends that his diabetes mellitus, Type II, is related to herbicide exposure in service. Specifically, he asserts that during his active Navy service from 1960 to 1963, he was stationed in Bermuda, where his duties included transporting empty barrels that had previously been filled with Agent Orange to a landfill at Kindley Air Force Base. He further contends that while at the United States Naval Station in Bermuda, he dumped barrels (containing remnants of Agent Orange) into pits, burned them along with other waste, and ultimately bulldozed the hazardous waste into the ocean. The Veteran also claims exposure while he was stationed in Puerto Rico from October 1963 to February 1964. Specifically, he argues that Mt. El Yunque, which was within a few miles of the Roosevelt Roads Naval Station where he was stationed, as well as the perimeter fence of the base, were sprayed with herbicides both before and during his temporary assignment. He also claimed during his June 2009 Board hearing to have witnessed an aerial spraying of Agent Orange at Mt. El Yunque by a C-123. The Board initially notes that there is no evidence the Veteran served in the Republic of Vietnam (RVN). The Veteran's service personnel records reveal the Veteran had no RVN service, nor does he contend that he was ever in that country. The next question is whether the Veteran had exposure to Agent Orange or other herbicide agent(s) during active service at any location established by the evidence. The Veteran's service personnel records do show that he was stationed in Bermuda from November 1960 to June 1963, and in Puerto Rico from October 1963 to February 1964. However, there is no indication in these records that he was assigned to work with toxic chemicals such as Agent Orange or other herbicides, to include defoliating the perimeter. The Veteran has submitted numerous articles in support of his claimed exposure. Notably, he submitted a document entitled "Agent Orange Use Outside of Vietnam," which includes a letter to Secretary Rumsfeld of the DoD from a Congressman Evans requesting an assessment of the use, testing, or storage of herbicides in several towns in Puerto Rico. A September 2003 response to that request from DoD includes an attachment which provides a summary of information obtained from a search of the records at JSRRC regarding use of herbicides in locations other than Vietnam. This attachment shows that testing of herbicides was conducted as follows: in Guanica and Joyuda, Puerto Rico, in 1956; Las Mesas and La Jagua, Mayaguez, Joyuda at Cabo Rojo, and Guanica Insular Forest at Guanica, Puerto Rico, in 1956; Las Mesas and La Jagua, Mayaguez, Guanica Beach, Puerto Rico, in 1957; Las Marias, Puerto Rico, in 1967; Las Mesas Cerros, Mayaguez, Puerto Rico, in 1968; Las Mesas and La Jagua, Puerto Rico, in 1956 and 1957; and Rio Grande in 1967. However, the record shows that the Veteran was not in service during these years. The Veteran also submitted an Internet article entitled "Freedom to Puerto Rican Parrots" that described the effect on parrots of testing of Agent Orange in 1962 and the next few years in areas of the El Yunque mountains in Puerto Rico. The author indicated the source of information for the article was a 'good source from CNN'; however, the allegations of testing have not been confirmed by any other evidence of record. The Veteran included an online article from The Royal Gazette entitled "Legacy of Guilt and Ill Health." This article simply relays the Veteran's contentions that he bulldozed empty barrels of Agent Orange and other poisonous substances into pits at the Kindley Air Force from 1965 to 1967. These allegations reference the time when the Veteran was a civilian employee and are not pertinent to his period of active duty service. An article entitled "Southside Agent Orange Report Released" reports the a review by the government of Bermuda contamination at Kindley Air Force Base in the 1960s was conducted as a result of the Veteran's allegations that Agent Orange was dumped and burned at that site. The article reported that the result of the study was that testing undertaken in 1995 after the United States closed bases showed no appreciable levels of Agent Orange. However, the article does not report whether Agent Orange was every used there in the 1960's. A report which appears to be co-authored by employees of the Environmental Protection Agency (EPA) entitled "Documentation of Environmental Indicator Determination" describes migration of contaminated groundwater at the Naval Station Roosevelt Roads, in Puerto Rico, though does not specifically identify such contamination as Agent Orange residuals. Soil testing in several areas of the base had revealed higher than acceptable levels of contaminants, including one site that was used for drum storage, while testing in other areas did not reveal any unacceptable risks to human health resulting from exposure to contaminants found. However, there was no indication in this article that Agent Orange was used at the base in Puerto Rico during the time the Veteran was stationed there. The Veteran has submitted pictures of himself during service alongside a bulldozer and next to drums that allegedly contained Agent Orange; however, these photographs are not persuasive proof that the drums contained Agent Orange. They are not marked as such and in fact, contain no identifying information. The Veteran has also submitted a letter from J.A.K., who indicates that he was active duty Air Force and based in Bermuda at Kindley Air Force Base. He stated that he arrived on assignment there in May 1965 and was a neighbor of the Veteran. He indicated that he observed the Veteran in the performance of his employment and on one occasion, saw the Veteran driving a bulldozer over barrels that contained a liquid, which the Veteran said was Agent Orange. JAK further indicated that the Veteran told him that he also worked with Agent Orange when he was stationed in Puerto Rico. The incident JAK was said to have witnessed occurred after the Veteran was discharged from service. His assertions that the barrels contained Agent Orange were based on what the Veteran told him and not his own personal knowledge. The same can be said of the Veteran's statements to JAK regarding allegedly working with Agent Orange in Puerto Rico, which the objective evidence of record does not support. The claims file contains a series of electronic mail messages (e-mails) exchanged between VA employees in July and August 2008. The e-mails indicate that the list of locations of herbicide use outside Vietnam provided by DoD does not show any testing, use, or storage of herbicides at the U.S. Naval Station in Bermuda. Further, there was no record kept of small-scale brush or weed clearing activity around bases, nor is there any way to determine what type of herbicide would have been used in such instances. With regard to herbicide use in Puerto Rico, the e-mails note that herbicide testing was performed in Puerto Rico in 1956 and 1957, mainly in the southwestern part of the island. From August to December 1967, tests were conducted at Rio Grande , also known as El Yunque. The Board notes that the mentioned 1967 testing occurred after the Veteran had separated from active service. Further, the e-mails noted that testing occurred between 1963 and 1967 at small sites located at Mayaguez, Maricago, Guajataca, Guanica, Toro Negro, El Verde and Jimenez, which were not near Roosevelt Roads. Also, the Veteran was only in Puerto Rico from October 1963 to February 1964. There was no documentation of storage of herbicides in Puerto Rico. Finally, a response from JSRRC, as noted above states that there was no documentation which verified that Agent Orange was stored or used at the Naval Station in Bermuda during the period of November 1960 to June 1963. The list of herbicide testing sites from DoD was also reviewed, showing that herbicides were not listed as being sprayed, stored, tested, or transported in Puerto Rico during the Veteran's temporary assignment between October 1963 and February 1964. The Veteran asserts, correctly, that in recent years the Department of Defense has acknowledged the use of Agent Orange and other herbicides in countries other than Vietnam. For example, see the VA Revised Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10(o), entitled "Exposure to Herbicides Along the DMZ in Korea," pertaining to herbicide use there between April 1968 and July 1969. However, the Board finds that the above documentation does not establish that herbicide testing or storage occurred in Bermuda. Moreover, official documentation shows that herbicide testing was conducted in Puerto Rico a number of years prior to the Veteran's service there and several years thereafter Although some information does refer to small site testing of Agent Orange between 1963 and 1967, it was reported that the identified areas were not near Roosevelt Road. In sum, official attempts to corroborate the claim that herbicides were used in areas where the Veteran was stationed during his service have all been negative. The Board finds these records from official sources to be highly probative. The Board further finds that the RO's efforts to request and obtain information from official sources regarding the claimed exposure were quite exhaustive. Guidance offered by the Court in its August 2011 decision requires the Board to undertake an analysis of the credibility and probative value of the various items of evidence, to specifically include the Veteran's statements. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). At this point, the Board acknowledges that the Veteran is competent to report what he has actually witnessed, such as spraying from aircraft and onground spraying of the perimeter of the base as well as the disposal of drum barrels. However, assuming his statements in this regard to be credible, the Veteran (as a layperson) is nevertheless not competent to identify the liquid that was being sprayed or contained in the drum barrels. It is not shown that he has the specialized education or experience to offer such an opinion as to the nature of the liquid. In other words, his statements cannot be accepted as competent evidence that these were herbicide agents, and thus his statements alone are not accepted for the purpose of showing exposure to such agents. With regard to a January 2004 statement from J.A.K. submitted in support of the Veteran's claim, the time period that he reported knowing the Veteran (1965) appears to be after the Veteran was discharged from service. However, even assuming this to be due to faulty memory as to the time period, nothing in the statement offers any first-hand or eyewitness information as to actual exposure to herbicides. The letter merely reports what the Veteran told J.A.K. Even assuming the statement by J.A.K. to be credible, it is not competent evidence of exposure by the Veteran to herbicide agents since the Veteran was not competent to offer such an opinion. The Veteran bases his contentions in large part on Internet articles which suggest that there was such testing in 1962. However, the Internet evidence does not cite any persuasive authority for the assertion that herbicides were used or tested at El Yunque in 1962. The sole reference to a good source at CNN leads the Board to find that on its face it is of questionable reliability. The Board finds the official information obtained from DoD and JSRRC to be more reliable and thus more probative. In making this finding, the Board does not find that only official government records are needed to establish any chemical exposure. However, there is no other evidence in this case which even approaches the point where the evidence would be in equipoise. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Based on the above determinations as to credibility and competency, and after weighing the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange or other such herbicide agents at anytime during his active duty service. As exposure to Agent Orange or other herbicide agent(s) during active service has not been established, the presumptions as to service connection for diabetes mellitus cannot be invoked. See 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee, 34 F.3d at 1042. The Board will now consider the issue of direct service connection, including on a one-year presumptive basis for diabetes mellitus under 38 C.F.R. § 3.309(a). The Veteran's service treatment records are negative for complaints, treatment, or diagnoses of diabetes mellitus, to include the February 1960 enlistment examination, an April 1963 medical examination, and the February 1964 separation examination reports. Notably, the urine tests for sugar were negative in 1963 and 1964. The Veteran was first diagnosed with diabetes mellitus in June 2005, which is clearly outside the one-year presumptive period. 38 C.F.R. §§ 3.307, 3.309. The evidence of record reveals that there was a prolonged period without medical complaint or treatment, and the amount of time which has elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As diabetes mellitus was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disability to service. Here, there is no such competent evidence. As noted in the Introduction, a remand for a VA medical opinion is not necessary in order to decide the claim in this case because the record does not contain any evidence that the Veteran suffered an injury, disease, or event in service or that the claimed diabetes mellitus may be associated with service. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Appellants of Am. V. Sec'y of Appellants Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003). The Board has considered the Veteran's statements asserting a nexus between his currently diagnosed diabetes mellitus and active duty service. Although the Veteran is competent to report that he has diabetes mellitus, he is not competent to render a medical opinion as to the etiology of this disability. In this regard, the Board notes evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the weight of the competent medical evidence is against finding any direct connection between the Veteran's diabetes mellitus and active service. See 38 C.F.R. § 3.303(b). Since the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for diabetes mellitus, the benefit-of-the-doubt doctrine is inapplicable in the final analysis, and the claim must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to an herbicide agent, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs