Citation Nr: 1308129	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  10-04 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.




REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel



INTRODUCTION

The Veteran served on active duty from December 1956 to December 1976.  

This case was originally before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).  The case was reopened and remanded by the Board in November 2011 and then remanded again in July 2012.  The case is now ready for appellate review. 

A December 2012 Memorandum from the VA Appeal Management Center (AMC) indicated that the issue of entitlement to service connection for peripheral neuropathy, an issue not on appeal to the Board and referred to them by the July 2012 remand, was a "Non-AMC" issue and required the attention of the RO.  To the extent such attention by the RO has not been accomplished, any indicated action with respect to the claim for service connection for peripheral neuropathy is to be accomplished by the RO.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The evidence of record does not indicate the Veteran served in the Republic of Vietnam nor is there competent or persuasive evidence of herbicide exposure during his service in Thailand.

2.  Diabetes mellitus was not present in service or for many years thereafter. and has not been shown to be related to active duty.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, to include on presumptive bases as a chronic disorder or due to herbicide exposure, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  A February 2009 letter issued prior to initial adjudication contained the content of notice required with respect to the information and evidence necessary to prevail in a claim for service connection, to include on a presumptive basis as due to exposure to herbicides.  Additionally, the Veteran was represented by a certified Veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. 

VA's duty to assist the Veteran has also been satisfied in this case.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs), VA medical records, and private medical records have been obtained.  As directed by Board remand, the record also reflects receipt of the information requested therein in as to the distance between the areas the Veteran served at Korat Royal Thai Air Force and the perimeter of the base, as wall a map of this base, from an Air Force historian in July 2012.  A memorandum completed by the AMC in that month found that all attempts to obtain verification of the Veteran's alleged exposure to herbicides had been exhausted and that any further attempts to obtain such records would be futile.  As such, the Board finds that the pertinent provisions of the VA Adjudication Manual with respect to the procedures VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam, particularly in Thailand, have been complied with.  See M21-1MR, Part IV.ii.2.C.10(o), (q); see also VBA Fast Letter 09-20, "Developing for Evidence of Herbicide Exposure in Haas-Related Claims from Veterans with Thailand Service during the Vietnam Era."  The Board also finds that there has been substantial compliance with its remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  In addition, as there is no evidence establishing that diabetes occurred in service and no indication that such disability may be associated with the Veteran's service, a VA examination is not necessary in this case.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

II.  Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  (The April 2012 supplemental statement of the case reflects consideration of additional records contained in the Virtual VA file that are not of record and also not pertinent to the matter on appeal.)  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

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. §§ 1110, 1131 38 C.F.R. § 3.303.  Service connection may 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). 

For certain chronic disorders, including diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

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 a 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); 38 C.F.R. § 3.307(a)(6)(iii).

In addition, it has been determined that there was significant use of herbicides on the fenced perimeters of military bases in Thailand that was intended to eliminate vegetation and ground cover for base security purposes.  See Department of Defense (DOD) article, Project CHECO Southeast Asia Report: Base Defense in Thailand.  Therefore, certain Veterans would have been exposed to herbicides while stationed at these bases, depending on the nature of their duties.  The Director of Compensation and Pension Service's Memorandum entitled "Herbicide Use in Thailand during the Vietnam Era" indicates that herbicides were used and stored in Thailand from April to September 1964 and not at any point thereafter.  This Memorandum also indicates that the small-scale herbicide usage to clear weeds in and around the bases and airstrips were using commercial products and not Agent Orange.  There are no presumptions based on exposure to commercial herbicides.  If the Veteran was exposed to commercial herbicides in Thailand, his exposure risk would be similar to exposure to the commercial herbicides sold and used in the United States.

If a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied:  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).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to a herbicide agent during active military, naval, or air service.  38 C.F.R. 
§ 3.307(a)(6)(ii). 

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).  The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

The STRs, to include the reports from the January 1976 separation examination, do not reflect any evidence of diabetes.  After service, the Veteran did not refer to diabetes in his original claim for service connection filed in January 1977, nor was diabetes shown upon the first VA examination conducted after service in March 1977.  The first clinical evidence of diabetes is demonstrated by a March 2001 VA outpatient treatment report.  Thus, as diabetes mellitus was not diagnosed within one year of service, service connection for this disability as a chronic disorder cannot be presumed under law.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 
§§ 3.307, 3.309. 

With respect to the allegation that service connection for diabetes is warranted under the presumptions based on exposure to herbicides, the Board find that the Veteran may not avail himself of this presumption as his service record does not show that he served in the Republic of Vietnam or in the particular areas of Thailand detailed in the DOD article referenced above.  

Detailing the Veteran's service record, one of his DD Form 214s confirms that he had received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  A September 2001 service verification report from the United States Air Force indicated that the Veteran had been deployed to Thailand from August 6, 1966, to May 24, 1967, but did not confirm that the Veteran served in Vietnam.  Parenthetically, the Board notes that any United States armed forces member stationed in Thailand between July 1965 and March 1973 who served in direct support of operations in Vietnam was eligible for the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  Thus, the Veteran's receipt of those decorations was consistent with his documented Thailand service and did not necessarily indicate that he also served in Vietnam.

The Veteran contends that he was exposed to herbicides while serving at the Royal Thai Air Force base in Korat, Thailand (STRs dated in 1966 reflect treatment at this base).  As support for this assertion, the Veteran's representative in her October 2011 presentation to the Board referenced the VA Public Health memorandum "Thailand Military Bases and Agent Orange Exposure" that notes that Air Force Veterans who served on Royal Thai Air Force bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides.  One of the Veteran's DD Form 214s reflects that, during this period, he was assigned to the 4532nd Combat Crew Training Squadron as an aircraft electronics repair technician.  In addition, his military occupational specialty is consistent with the Veteran's account of maintaining and repairing fighter jets returning from missions in Vietnam.  What remains in dispute is whether the Veteran was ever stationed near the base perimeter of one of the aforementioned Royal Thai Air Force Bases where Agent Orange was reportedly sprayed. 

In order to obtain corroboration of in-service exposure to herbicides, and to comply with the VA Adjudication Manual procedures required to verify herbicide exposure in locations other than the Republic of Vietnam referenced above, the November 2011 Board remand directed that the National Personnel Records Center (NPRC) be contacted to obtain the Veteran's complete service personnel records and to otherwise comply with the pertinent procedures required by the VA Adjudication Manual.  However, the NPRC responded in January 2012 that despite an extensive and thorough search, they were unable to locate any of the Veteran's service personnel records.  The AMC completed a "Formal Finding on the Unavailability" of records to verify herbicide exposure in March 2012.   The Veteran was notified of this fact by SSOC dated in December 2012.  

Thereafter in an April 2012 memorandum, the AMC determined that a referral to the United States Army and Joint Services Records Research Center (JSRRC) was inappropriate because the NPRC was unable to locate the Veteran's service personnel records, and therefore could not confirm the Veteran was assigned near the base perimeter of a Royal Thai Air Force Base where herbicides were reportedly sprayed.  In other words, there was insufficient evidence to allow the JSRRC to make a proper verification of the alleged exposure. 

In response to the request in a January 2012 letter for the Veteran to provide additional information regarding how his military duties exposed him to herbicide agents, he completed a statement later in that month indicating that from August 6, 1966 to May 24, 1967, he was assigned to the 388 FMS as an aircraft electrician at the Korat Royal Thai Air Force Base.  He stated he was required to work on the flight line and much time was spent on the trim pad and run up area.  The Veteran further stated that "[t]hese areas were located at the base perimeter next to the fence.  The flight line [itself] was located on the perimeter area of the base." 

In light of January 2012 statement, the July 2012 Board remand requested that the JSRRC and/or appropriate agency obtain information, to include a map of the base, as to where the flight line, trim pad, and run up areas were located on the Korat Royal Thai Air Base.  In particular, it was requested that the distance of the flight line, trim pad, and run up areas from the perimeter of the base be ascertained.  In response, a map of the Korat Royal Thai Air Base was received in July 2012 from an Air Force historian.  This historian also indicated that the perimeter fence would be a "very long way," from the flight line, trim pad, and run up areas.  This information was noted in a July 2012 AMC memorandum summarizing the actions taken in attempt to corroborate the alleged exposure to herbicides.  The memorandum found that the AMC was unable to verify the alleged herbicide exposure based on the evidence of record, all procedures for obtaining corroboration had been properly followed, all efforts to obtain the needed information had been exhausted, and that further attempts to obtain the information would be futile.  

In this case, exposure to an herbicide agent in service is not established.  There are no objective records from military service indicating that such exposure occurred, and the official response obtained from the Air Force historian was that the location of the Veteran's duties at the Korat Royal Thai Air Base did not involve the perimeter areas of the base associated with exposure to herbicides.  This evidence is more probative than the uncorroborated assertions by the Veteran as set forth in his statements of record.  See, e.g., Soria v. Brown, 118 F.3d 747, 748 (Fed.Cir.1997); Duro v. Derwinski, 2 Vet. App. 530 (1992) (the service department's decisions on matters within its provenance are conclusive and binding on VA).  Thus, the Veteran may not be presumed to have been exposed to herbicides in Thailand, and service connection on a presumptive basis as due to exposure to herbicides is not warranted.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).

The Board has further considered whether service connection for diabetes is warranted on a direct basis without regard to whether there was herbicide exposure in service.  See Combee, 34 F.3d at 1042 (Fed Cir. 1994).  However, the preponderance of the evidence is against a conclusion that diabetes is warranted on such a basis.  The Board bases this determination in part on the fact that diabetes was first shown, and service connection for such disability was first claimed, many years (well ever twenty years) after service.  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 low back condition).  Moreover, there is no competent medical evidence link diabetes to service, and the Veteran, as a lay person, is not competent to provide an opinion as to such a complex medical question as the etiology of his diabetes.  As such, while the Board concedes the credibility of the Veteran's statements for the purpose of this analysis, it simply finds the probative weight of these statements to be overcome by the negative evidence of record.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  

In short therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for diabetes, to include as due to exposure to herbicides.  Therefore, the doctrine of reasonable doubt is not for application and the claim must be denied.  Gilbert, supra.  


ORDER

Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. 


____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs