Citation Nr: 1303759 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-29 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to October 1973, with service in the Republic of Korea from September 17, 1972 to October 26, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ) seated at the RO. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's service personnel records do not show that he had service in the Republic of Vietnam, and his active duty service in the Republic of Korea began in September 1972, approximately one year after the end of the use of herbicides along the demilitarized zone (DMZ). 2. The evidence does not reflect that the Veteran had exposure to Agent Orange or other herbicide agents during active duty. 3. The competent evidence of record does not demonstrate diabetes mellitus, type II, is related to service or manifested to a compensable degree with one year of separation from service. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in or aggravated by active duty and may not be presumed to have been incurred in active duty, to include as due to exposure to herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided VCAA notice by letter dated in March 2009. The Veteran was notified of the type of evidence required to substantiate the claim for service connection, namely, evidence of a current disability; evidence of an injury or disease in service or event in service causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The Veteran was also notified of the provisions regarding the effective date of a claim and the degree of disability assignable for the claim. As for the content of the VCAA notice, the March 2009 letter complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of a claim for service connection). Duty to Assist The duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service treatment records, personnel records, and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, the Board notes that VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in the Republic of Korea as asserted in the current appeal. Specifically, VA's Adjudication Procedural Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o) directs that a request be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of location of a Veteran's unit(s) if he alleges service along the demilitarized zone DMZ during the period of time outlined and was assigned to a unit not already identified by the Department of Defense (DOD) as having served along the DMZ. In this regard, the Board finds that the RO took all steps required by the M21-1MR to verify the Veteran's alleged herbicide exposure. The record shows that the RO obtained the Veteran's service personnel records and contacted the Veterans Benefits Administration Compensation and Pension Service (Compensation Service) and the JSRRC. The RO furnished the Veteran's description of his exposure to the Compensation Service and requested a review of DOD's inventory of herbicide operations to determine whether herbicides were used as alleged. In March 2010, the Compensation Service reported that because the Veteran's service in the Republic of Korea was well after the dates established for presumed exposure, Agent Orange exposure could not be conceded. In June 2010, the JSRRC responded that exposure to Agent Orange could not be verified based upon the information provided. Therefore, the Board finds that VA has no further duty to assist the Veteran in developing this part of his claim. The Veteran was not provided a VA examination pursuant to his claim. Generally, a VA medical examination is required for a service connection claim only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 Veteran'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, 83 (2006). The record demonstrates the Veteran has a current diagnosis of diabetes mellitus, type 2. However, the evidence of record does not support that the Veteran was exposed to herbicide agents in service. Additionally, there is no competent evidence of record suggesting a relationship between the Veteran's current diabetes mellitus, type II, and any exposure to an herbicide agent. Further, his service treatment records do not demonstrate complaints of or treatment for diabetes mellitus, type II, or symptoms thereof during active duty or for many years after service. Moreover, the Veteran does not claim that he had diabetes mellitus, type II, during service or in the years immediately after service. As a result, the Board finds the evidence of record does not demonstrate that the Veteran's diabetes mellitus, type II may be associated with an in-service event, injury, or disease. See VAPOGCPREC 27-97, 72 Fed. Reg. 63604 (1997); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Consequently, a VA examination is not warranted. McLendon, 20 Vet. App. at 83. As there is no indication of the existence of additional evidence necessary to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars of the United States. The representative asked the Veteran specific questions regarding his in-service duties and any exposure to herbicide agents. The VLJ explained that the Veteran had established a current disability for the purpose of service connection and that the pertinent question was the relationship between the Veteran's currently diagnosed diabetes mellitus, type II, and his active duty service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran have suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Merits of the Claim The Veteran and his representative assert that the Veteran's diabetes mellitus, type II, was caused by exposure to herbicides during his service with the 61st Maintenance Company in the Republic of Korea. The Veteran reports that he worked on a wrecker to pick up broken equipment and assisted in the transportation of missiles. He states that he performed daily exercises in the field on the DMZ. The Veteran and his representative assert that although the Veteran did not serve during the dates established for presumptive service connection, the use of Agent Orange on the DMZ continued to affect service members who served there after that period. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including diabetes mellitus, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962 to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Veterans, diseases 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; 38 C.F.R. §§ 3.307, 3.309. Moreover, effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in the Republic of Korea. Specifically, VA added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307 that reads as follows: A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. The list of diseases associated with exposure to certain herbicide agents is as follows: chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea in or near the DMZ between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related disease to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. In his May 2009 Notice of Disagreement, the Veteran asserted that he walked through the DMZ area where Agent Orange was sprayed and that all of the foliage was still dead from the previous usage. In an August 2009 written statement, the Veteran contended that he was exposed to chemical agents as he walked through the terrain of the DMZ. The Veteran served on active duty from January 1971 to October 1973. The Veteran's DD-214 shows that he had one year and 26 days of foreign service with the U.S. Army Pacific, and his military occupation specialty was crane shovel operator. His service personnel records indicate that he served in the Republic of Korea with the 61st Maintenance Company from September 1972 to October 1973. First, the evidence does not show that the Veteran served on active duty in the Republic of Vietnam nor does he assert that he had active duty service in the Republic of Vietnam. In addition, the evidence of record does not establish that the Veteran had active duty service in the Republic of Korea between April 1, 1968, and August 31, 1971. Moreover, the 61st Maintenance Company has not been determined by DOD to have operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during the presumptive period. As noted above, in June 2010, the JSRRC reported that exposure to Agent Orange could not be verified based upon the information provided. As a result, in-service exposure to an herbicide agent cannot be presumed as a matter of law. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(a)(6)(iv). With respect to the Veteran's assertions regarding the effects of Agent Orange or herbicide agents after the presumptive periods, there is no documentation of the presence of herbicides during his service period, and the competent evidence of record does not substantiate the claims. Further, as noted in greater detail below, the evidence of record does not demonstrate that the Veteran is competent to opine as to the direct or indirect effects of the use of herbicide agents. As a result, the Board finds the competent evidence of record does not establish in-service exposure to herbicide agents for the purpose of presumptive service connection. The Veteran does not claim that he was present when herbicides were used. Rather, he asserts that since he was in Korea a year after herbicides were used, he should be considered exposed based on the presence of Agent Orange in the environment. He presents no scientific or medical evidence for the proposition that Agent Orange can cause his diabetes based on that type of environmental exposure and VA has determined that a presumption of exposure only applies to Veteran who were in Korea between April 1, 1968 and August 31, 1971. Additionally, the evidence of record indicates that diabetes mellitus, type II, was first diagnosed in 2008, approximately 35 years after separation from service. As such, the Veteran's current diabetes mellitus, type II, may not be presumed to have been incurred in service as it did not manifest to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Despite these findings, when service connection cannot be granted on a presumptive basis, a Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of diabetes mellitus, type II. Further, the Veteran has not asserted that his diabetes mellitus, type II, began during active duty or has been continuously present since his separation from service. In a February 2009 VA treatment record, the Veteran reported a history of diabetes mellitus; in a June 2009 VA treatment record, the Veteran stated diabetes mellitus was first diagnosed in 2008. In this case, the approximately 35-year time period without complaints or treatment weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his condition). Here, the Veteran's assertions center on a relationship between his current diabetes mellitus, type II, and in-service exposure to herbicides. The post-service medical evidence of record does not include an etiological opinion relating the Veteran's current diabetes mellitus, type II, to his active duty service. Although the Veteran testified at the April 2012 hearing that a VA physician previously told him that his conditions were more likely than not the result of exposure to Agent Orange, the Veteran has not presented evidence in support of this claim, and as noted above, VA has satisfied the duty to assist with respect to obtaining all identified and available records. The only evidence of record indicating an association between diabetes mellitus, type II, and active duty service are the Veteran's own assertions. Although the Veteran and his representative claim that his diabetes mellitus, type II, is related to his active duty service, to include as due to exposure to herbicides, it is well established that a layperson without medical training, such as the Veteran, is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of diabetes mellitus, type II, is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The question of whether the Veteran's exposure to herbicides caused his current diabetes mellitus, type II, does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. It is not shown that the Veteran or his representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of his diabetes mellitus, type II. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, as there is no competent evidence establishing that the Veteran's diabetes mellitus, type II, was incurred in or aggravated by active duty service, service connection on a direct basis is not warranted. In conclusion, the weight of the evidence does not demonstrate that the Veteran served within the land borders or internal waterways of Vietnam or that he served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during that period. Therefore, exposure to herbicides is not presumed. The evidence of record also does not demonstrate that the Veteran was actually exposed to herbicides in service, and therefore service connection is not warranted on a presumptive basis. Finally, the competent evidence of record does not indicate the Veteran's current diabetes mellitus, type 2, which was first shown 35 years after separation from active duty, is related to his active duty service. Accordingly, the claim for service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, 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); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs