Citation Nr: 1313200 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-07 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States (VFW) WITNESSES AT HEARINGS ON APPEAL Appellant, his wife, and a friend ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1959 to March 1979. His military occupational specialty (MOS) was in telecommunications. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In May 2009, the Veteran, his wife, and a friend, testified before a Decision Review Officer. In March 2010, the Veteran testified before an Acting Veterans Law Judge (VLJ) who is no longer employed at the Board. The Veteran appeared at a Travel Board hearing before the undersigned in November 2012. A transcript of each hearing conducted over the course of this appeal is of record. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, nor is there competent or persuasive evidence of herbicide exposure during his service while at the Udorn Air Force Based in Thailand. 2. There is no competent evidence or opinion indicating that the Veteran's type II diabetes - first diagnosed many years after service - is medically related to service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in July 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in October 2008. Nothing more was required. It follows that letter sent in 2011 and 2012, which readdressed the notice elements, went above and beyond what was necessary. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), private post-service medical treatment records, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. With regard to the Veteran's alleged time spent in Vietnam, the RO undertook considerable development in an attempt to verify the Veteran's alleged Vietnam service, including but not limited to a search of the Veteran's service personnel records (SPRs), as well as request to the Air Force Historical Research Agency (AFHRA) who reviewed the unit history of the 1st Mobile Communication Squadron in the Southeast Asia Communications Region. Requests were also made to the Defense Personnel Records Information Retrieval System (DPRIS) and U.S. Joint Services Records Research Center (JSRRC) for verification of service in Vietnam, but negative responses were received regarding alleged Vietnam service. (For further discussion of these documents, see the "Background" section below.) As to exposure to herbicides in Thailand, the Board has reviewed the claims file and the Veteran's detailed testimony as to his time there and finds that additional attempt to procure records regarding alleged herbicide exposure is not necessary. Thus, VA's duty to assist in attempting to procure these records has been satisfied. Recognition is given to the fact that a VA examination has not been conducted. Such is not prejudicial to the Veteran. The Veteran's sole assertion is that his diagnosed diabetes mellitus developed due to in-service exposure to herbicides either in Vietnam or in Thailand. He does not assert that his diabetes mellitus arose during active service, within one year of his service discharge, or is otherwise etiologically related to his active service (other than due to herbicide exposure). He likewise has not asserted any theory of entitlement other than herbicide exposure (such as continuity of symptomatology since service); and, in that regard, a review of the record does not reflect that diabetes was diagnosed until many years after service. Put another way, as a diagnosis of diabetes mellitus is clearly established, and that there is a presumption of service connection for diabetes mellitus if exposure to herbicides is shown, the outcome of the appeal turns on whether there is sufficient showing that the Veteran was exposed to herbicides. A medical opinion is simply not warranted. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist as contemplated by McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently 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 the regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has testified on several occasions in support of this claim, to include at the RO in May 2009 and before the Board in March 2010 and in November 2012. At the time of the hearing in November 2012, the undersigned VLJ noted the elements of the claim that were lacking to substantiate the claim for service connection for diabetes mellitus. The Veteran was assisted at the hearing by an accredited representative from the VFW service organization. The representative and the VLJ asked questions regarding the Veteran's service in trying to ascertain whether such service included exposure to herbicides. 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 diabetes mellitus. 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) (2012). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). If a chronic disease, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection for diabetes mellitus is presumed for veterans exposed to the herbicide referred to as "Agent Orange" during active service, absent evidence to the contrary. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). A veteran, who during active service, 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 service. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (2012). The presumptive provisions of 38 C.F.R. § 3.307(a)(6) pertaining to herbicide exposure do not apply to a Veteran serving in a deepwater vessel off the coast of Vietnam who did not actually set foot in Vietnam or enter the inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VAOPGCPREC 27-97 (1997). VA's General Counsel has also determined that service in high altitude planes flying over Vietnam without any other contact with Vietnam did not constitute "service in Vietnam" under 38 C.F.R. § 3.313 (2012). VAOPGCPREC 7-93 (1993). Even if a Veteran is found not entitled to a statutory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724-2727 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). The ruling in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). For claims alleging herbicide exposure in Thailand, the M21-1MR provides that, after receiving information from a veteran regarding the approximate dates, location, and nature of the alleged exposure, VA should consider this evidence in light of VA's Memorandum for the Record regarding "Herbicide Use in Thailand during the Vietnam Era" and determine whether "exposure to herbicides [can] be acknowledged on a direct or facts-found basis." See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. If so, a request should be sent to JSRRC for verification of exposure to herbicides. If not, then the case should be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist, and the claim should then be decided based on the evidence of record. Here, in light of the Veteran's statements and testimony regarding alleged exposure to herbicides while in Thailand, it is concluded that sufficient information is already of record and attempts to verify herbicide exposure outside of Vietnam are not necessary. 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Background The Veteran contends that he was exposed to herbicides during his military service while serving in Vietnam or in Thailand. Following his discharge, he was first diagnosed with diabetes mellitus in approximately 2004, as documented by private treatment records. The Veteran and others have testified at several hearings in support of his claim. Primarily, it is alleged that the Veteran's active service included time in Vietnam and in Thailand. (See, e.g. testimony provided at the 2010 hearing, pgs. 7 and 17, and at the 2012 hearing at pg. 5.) At the November 2012 hearing, he discussed his alleged herbicide exposure while in Thailand in detail. For example, he noted that he crossed the perimeter about twice per week to go into town. (Hrg. tr. at pg 6.) There was no warning to avoid herbicide exposure at the time. (Tr. at pg. 7.) His barracks were about a 10 minute walk to the perimeter. (Tr. at pg. 9.) The building where he worked was further in toward the center of the base away from the perimeter, and he testified that he was never actually near the perimeter other than when crossing it. (Tr. at pgs. 10-11.) In a December 2008 statement, the Veteran pointed to a TDY (temporary duty) in SEA (Southeast Asia) from January 4, 1965, to May 6, 1965 as evidence of his service in Vietnam. He said he was assigned to the 1st Mobile Communications Group at Clark Air Force base (AFB) in the Philippines during this period, and that there is no other logical place he could have been sent except for Vietnam. He recalled be stationed in Qui Yon, Vietnam. He also cited to his receipt of the Vietnam Service Medical (VSM) and Vietnam Campaign Medal (VCM) as evidence that he served in Vietnam. The record includes a May 1990 document as provided by a fellow serviceman who was also stationed with the 1st Mobile Communications Group at Clark Air Force base (AFB) in the Philippines. He recalled that they were both deployed to Vietnam for several months in early 1965, although stationed in separate areas. He offered similar testimony at the RO hearing in May 2009. Additional records in the file include a September 2012 statement by the Veteran's brother attesting to the fact that the Veteran served in Vietnam. He recalled that letters from that time noted that he was in Vietnam. Also of record is a polygraph report dated in 2012. The report reflects that the Veteran was being truthful when he said that he served in Vietnam. The RO/AMC contacted the AFHRA and in a July 2011 response from the Archivist, it was noted that the official unit histories of the 1st Mobile Communications Squadron, the Southeast Asia Communications Region, and the Pacific Communications Area, were reviewed, but no deployments to Vietnam that matched the dates of January 4, 1965, through May 6, 1965, were found. Instead, the Archivist was able to determine that five air traffic controllers (Team 12-65) from the 1st Mobile Communications Squadron were deployed to Qui Nhon on May 12, 1965. Notwithstanding the fact that there was no indication that communication center specialists were brought along, the Board emphasizes that this deployment occurred six (6) days after the Veteran's TDY SEA ended. The RO/AMC also contacted the DPRIS and JSRRC in an effort to document that the Veteran served in Vietnam and was exposed to herbicides. The DPRIS responded in 2011 that the available history of the 1st Communications Group stationed at Clark Air Base in the Philippines for the period from January through June 1965 but were unable to document that personnel traveled to Qui Nhon, Vietnam, during the period. In a November 2011 Memorandum, it was acknowledged that the Veteran was sent on TDY SEA from January 4, 1965, to May 6, 1965, but that no exact location was provided. It was further noted that AFHRA did not find deployments to Vietnam for the dates in question. Moreover, response from JSRRC as to history of the 1st Communications Group stationed at Clark Air Base in the Philippines was also negative for verification that the Veteran traveled to Qui Nhon, Vietnam, during the period. It was concluded that the Veteran's herbicide exposure had not been corroborated and no further herbicide development should be conducted. Also of record are pay records from the Veteran's military service, but there is nothing in these documents that is supportive of the Veteran's claim (e.g., combat pay in Vietnam is not indicated). The Board notes, however, that the Veteran's SPRs do show that he was at the AFB in Udorn, Thailand, in early 1965. The SPRs include a June 1965 service document which refers to his time in Udorn, Thailand. The "period of report" was from February 1965 to June 1965. In support of his assertion that he was exposed to herbicides during his service in Thailand, the Veteran submitted a copy of the Project (Contemporary Historical Examination of Current Operations (CHECO) Southeast Asia Report: Base Defense in Thailand. The Thailand CHECO Report does not reflect the use of tactical herbicides on allied bases in Thailand. Instead, the report references sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran's MOS or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. There are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. Analysis As an initial matter, the Veteran has been diagnosed with diabetes mellitus (initially around 2004). Element (1) of the Davidson analysis is thereby met. Inservice herbicide exposure is the Veteran's only theory of entitlement. The Board again notes that it is not required to address every other possible theory of entitlement sua sponte. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). In any event, the Board finds that there is no other competent, credible evidence otherwise linking the Veteran's diabetes mellitus to service. His service treatment records are negative for any complaints, treatment, or diagnosis of diabetes mellitus. Further, as noted, the condition was not diagnosed until over 20 years after service discharge. There is also an absent of evidence that links the Veteran's diabetes mellitus to his active service other than the assertion of herbicide exposure. There is no continuity of symptomatology evidence either. As such, the Board finds that there is no basis for service connection on a direct basis (38 C.F.R. § 3.303), on the basis of continuity of symptomatology (38 C.F.R. § 3.303(b)), by causation (38 C.F.R. § 3.303(d)), or on presumptive basis (38 C.F.R. §§ 3.307, 3.309(a)). As for his assertion that he was exposed to Agent Orange in service, which would trigger a presumption of service, the record reflects that the RO undertook considerable development in an attempt to verify the Veteran's alleged Vietnam service, including but not limited to search of his SPRs, and through the AFHRA and the DPRIS/JSRRC. These attempts proved to be unsuccessful as service in Vietnam could not be verified. Indeed, as discussed above, the evidence is actually convincing that for the period in question, the Veteran was in Thailand. While the Board has considered the testimony and statements of record attesting to the fact that the Veteran was in Vietnam in 1965, such is not corroborated by the record. The fellow serviceman's recollection that the Veteran served in Vietnam carries limited value. This individual does not recall that he and the Veteran served together and provides no evidence showing that the Veteran was in Vietnam. He only recalls that they were assigned to be in separate areas in Vietnam. The integrity of the statement from the Veteran's brother is similarly compromised. He only recalls receiving letters from Vietnam. Copies of those letters have not been provided. Moreover, and of significant import, both statements are outweighed by the multiple service department reports that clearly indicate that the Veteran's service did not include service in Vietnam. The Board again emphasizes that that an extensive search was conducted to determine whether the Veteran served in Vietnam, and that all sources have determined that the Veteran did not have active service in Vietnam. Put another way, the recollections of these two individuals, which could be clouded by 30 years of faded memory, are less probative than the objective research data collected by the service department. The Board also notes that the Veteran's service medals and awards do not necessarily demonstrate that he was in Vietnam. The Veteran argues that he was awarded the "Vietnam Service Medal" and "Vietnam Campaign Medal", and that this is evidence of him having been in Vietnam. The Board notes, however, that the Vietnam Service Medal was not only awarded to members of the Armed Forces serving in Vietnam, but that also members in Thailand, Laos, or Cambodia, or the airspace thereover, who served in direct support of operations in Vietnam are also eligible for this award. See 32 C.F.R. Part 578. Similarly, the Republic of Vietnam Campaign Medal is awarded to those personnel who (1) served in the Republic of Vietnam for 6 months during a specified period; or, (2) served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months; or, (3) served in the Republic of Vietnam or outside its geographical limits for less than 6 months but were wounded, captured or killed. See Army Regulation 672-5-1, 28. Consequently, as there is no record of the Veteran having been in Vietnam, it is more likely that he received the Vietnam Service Medal and Vietnam Campaign Medal because, while serving in Thailand, he was attached to an organization that participated in or directly supported military operations in Vietnam. Consideration has been given to the aforementioned polygraph test result. In this regard, the Board has no doubt that it is the Veteran's sincere belief that he served in Vietnam. However, the fact that he was found to be truthful when stating this still does not satisfy the actual requirement that his service was indeed in Vietnam (when the evidence is actually convincing that he was in Thailand for the period in question.) Based on the foregoing, and with due consideration to the Veteran's many years of service to our country, the Board finds that there is no credible evidence to establish his alleged service in Vietnam. The evidence is not in equipoise on this issue; and, therefore, there can be no presumed herbicide exposure based on service in Vietnam. "Service members who are not entitled to the presumption of [herbicide] exposure [based on service in the Republic of Vietnam] are nonetheless entitled to show that they were actually exposed to herbicides." Haas, supra. Consideration is thereby given to the Veteran's assertion that he was exposed to herbicides (Agent Orange) while he was stationed in Thailand. In cases involving purported Agent Orange exposure in Thailand, the Board must decide the claim based on the evidence of record, to include whether there was actual herbicide exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Haas, supra. Based on the evidence of record, the Board finds that there is no evidence that the Veteran had herbicide exposure during his conceded TDY in Thailand in 1965. Due consideration has been given to all of the statements made by the Veteran regarding his alleged herbicide exposure in Thailand, including but not limited to his account of crossing the perimeter a couple of times per week. In that regard, the Veteran may be sincere in his belief that he was exposed to herbicides when at the base, but as his testimony indicates, neither his barracks nor the building where he worked was near the perimeter. His MOS was not one where exposure is conceded. The only time that he was even near the perimeter was when he crossed over to leave the base. To find that the Veteran was exposed to herbicides based on these details as offered by the Veteran is speculative on its face and simply does not constitute evidence of actual exposure. In this regard, the Veteran testified at the 2012 hearing that he was never told that there was Agent Orange in the area that should be avoided. The Board notes that there is no other evidence of record of actual herbicide exposure in service. In determining that the Veteran is not entitled to a presumption of herbicide exposure due to his service in Thailand, it is noted that the Veterans' Benefits Administration (VBA) Fast Letter 9-20 provides updated information concerning herbicide use in Thailand during the Vietnam era. Previous development procedures that VBA was using for purposes of developing information concerning possible Agent Orange exposure in Thailand was replaced by a memorandum for the record that was jointly prepared by the Compensation and Pension Service and the Department of Defense. Now, if a claimed herbicide exposure cannot be resolved based on the information contained in this memorandum, then follow-up inquiries are being sent to the Army and JSRRC. This memorandum reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. See VBA Fast Letter 09-20 (May 6, 2009). This memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. While the 1966 missions involved the spraying of malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. The memorandum further concedes that non-tactical, commercial herbicides were used within fenced perimeters at other times during the Vietnam War period. Therefore, if a Veteran's MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood that the Veteran had been exposed to commercial pesticides. Security police units were known to have walked the perimeters, especially dog handlers. Id. In this case, although it is evident that strict adherence to the VBA Fast letter was not accomplished (as the Fast Letter does not appear in the record), it is clear from the Veteran's statements/testimony and documents (e.g., CHECO Report) submitted in support of his claim, that he had actual knowledge of what evidence was needed to show that he was exposed to herbicides when he was in Thailand. Further, and significantly, the Veteran's testimony reflects that he was only exposed to herbicides on occasion when he crossed the perimeter to enter town. Moreover, as already pointed out above, there is additionally no evidence that the Veteran's MOS caused him to be present at the perimeter of his military base. Thus, in light of the Veteran's statements/testimony in this case, and upon review of his SPRs and documents of record, the Board finds that the weight of the evidence is against a finding that he was exposed to commercial herbicides while stationed in Thailand. Further verification with the JSRRC is not necessary and presumptive service connection for diabetes mellitus is not warranted on that basis. In summary, the Board finds that the preponderance of the evidence is against granting service connection for diabetes mellitus, to include as a result of herbicide exposure, and the benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicides, is denied ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs