Citation Nr: 1314693 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-25 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides. 3. Entitlement to service connection for ankylosing spondylosis. 4. Entitlement to service connection for arthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1967 to July 1969, service in the Army National Guard of New York from May 1984 to May 1985, and additional unverified Reserve service. This matter came before the Board of Veterans' Appeals (Board) on appeal from a August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims currently on appeal were remanded by the Board in August 2010 for further development. The Veteran was scheduled for a hearing before a Board Member in August 2008. However, the Veteran cancelled his request for a hearing in a July 2008 written statement. The record does not reflect that the Veteran has requested that he be rescheduled for another hearing. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are duplicative of the physical evidence in the paper claims file. The issues of entitlement to service connection for ankylosing spondylosis and arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran served in Thailand during his active military service and that he was not exposed to herbicidal agents such as Agent Orange during this service. 2. The Veteran's diabetes mellitus type II is not related to Agent Orange, as there is no evidence of herbicide exposure during his active military service. 3. The Veteran's diabetes mellitus type II did not manifest during, or as a result of, a period of military service. 4. The Veteran has not been diagnosed with a skin disorder during the pendency of this claim that is related to Agent Orange, as there is no evidence of herbicide exposure during his active military service. 5. The Veteran's current skin disability of diabetic ichtyosis did not manifest during, or as a result of, a period of active duty, but rather, is secondary to nonservice-connected diabetes mellitus type II. 6. The Veteran has not been diagnosed with any other skin condition during the pendency of his claim that manifested during, or as a result of, active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for a skin condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board notes that notice was not provided to the Veteran prior to the initial adjudication of his claim seeking service connection for a skin disorder, as this issue has been pending since September 1996. However, the unfavorable rating decision that is the basis of this appeal was already decided prior to the enactment of the current § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial rating decision, the RO did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Letters subsequently sent to the Veteran in April 2005 and March 2006 addressed all notice elements listed under 3.159(b)(1). The April 2005 letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This letter was also sent prior to the initial RO decision regarding the issue of entitlement to service connection for diabetes mellitus type II. While the Veteran was not provided with all required notice until after the initial adjudication of his claims, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. The Veteran's personnel records pertaining to his period of service from 1967 to 1969 have also been incorporated into the claims file. Attempts were made to obtain the Veteran's National Guard records and verify his periods of Reserve service. Regrettably, aside from a May 1984 enlistment examination, additional records could not be obtained. Also, the Veteran received a VA medical examination for his skin condition in January 2012, and VA has obtained a copy of this report as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records and Social Security Administration (SSA) records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. In fact, in a May 2005 statement, the Veteran notified VA that he did not have any dates of medical treatment during service, any statements from persons he knew in service or any records or statements from medical personnel. The Board recognizes that the Veteran was not afforded a VA examination for his diabetes mellitus, type II, claim. However, he was not prejudiced by this fact. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claim of entitlement to service connection for diabetes mellitus because there is no evidence to satisfy the McLendon criteria discussed above. Specifically, there is no medical or lay evidence to suggest that diabetes mellitus manifested during, or as a result of, active military service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran is not prejudiced by the lack of VA examination. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its August 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the AMC took the necessary steps to attempt to verify the Veteran's reported exposure to herbicides, attempted to obtain National Guard records and identify additional periods of Reserve service and scheduled the Veteran for a medical examination in January 2012. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Criteria & Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as diabetes mellitus, becomes manifest to a degree of 10 percent within one year from the 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, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or 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); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). (VA's requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam). In other words, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Also, the Department of Defense (DOD) has confirmed that the herbicide, Agent Orange, was used from April 1968 through July 1969 along the Korean demilitarized zone (DMZ) to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There is no indication that the herbicide was sprayed in the DMZ itself. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Field artillery, signal and other engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Diabetes Mellitus The Veteran contends that he is entitled to service connection for diabetes mellitus. Specifically, the Veteran has alleged exposure to herbicidal agents such as Agent Orange. However, the evidence of record fails to demonstrate that the Veteran served in Vietnam or that he was exposed to Agent Orange while serving in Thailand. Likewise, the preponderance of the evidence of record demonstrates that diabetes mellitus did not manifest during, or as a result of, active military service. As such, service connection is not warranted. The Board is not disputing that the Veteran has a current diagnosis of diabetes mellitus. A March 2005 VA problem list reflects a history of diabetes mellitus, type II. Diabetes mellitus is a disease associated with exposure to certain herbicide agents used in support of military operations during the Vietnam era and is presumed to have been incurred in service if there is exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 U.S.C.A § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii), 3.309(e). In the present case, there is no evidence of service in Vietnam. Rather, verification of the Veteran's service and unit history reflects service in Thailand. There is also no evidence of herbicide use during the Veteran's time of service in Thailand. As such, the presumption of in-service incurrence due to herbicide exposure is not applicable in this case. The National Personnel Records Center (NPRC) notified VA in May 2005 that while the Veteran had received the Vietnam Service Medal, they were unable to determine the dates of service in country. Personnel records did not reflect any service in Vietnam. However, the Veteran did serve in Thailand from April 26, 1968, to July 24, 1969. The Veteran served with the 207th Signal Company and the 379th Signal Battalion, which was attached to Company B of the 442nd Signal Battalion. The Veteran's DD-214 further reflects that he was the recipient of the Vietnam Campaign Medal. The record contains a Memorandum from the Compensation and Pension Service regarding the use of herbicides in Thailand during the Vietnam era. A listing of herbicide use and test sites outside of Vietnam from the Department of Defense (DoD) was reviewed. This indicated that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964. Specifically, this was done at the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army near Pranburi, Thailand. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam and not Thailand. Also, a letter was received from the Department of the Air Force stating that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There were also no records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, and all such use required approval of the Armed Forces Pest Control Board and the Base Civil Engineer. The Memorandum further notes that while there is no record of aircraft spraying tactical herbicides in Thailand, insecticides were sprayed from August 30 to September 16, 1963, and from October 14 to October 17, 1966. In May 2012, VA sent an exposure verification request to the Joint Services Records Research Center (JSRRC). The JSRRC informed VA in July 2012 that after coordinating their search with the National Archives and Records Administration (NARA) and the US Army Center for Military History (CMH), they were able to verify that the Veteran's battalion was stationed in Sattahip, Thailand from December 1968 to May 1969 and in June 1969 they were stationed in Korat, Thailand. However, due to a lack of available records, they were unable to determine the duties performed by the Veteran's battalion or other locations they may have been sent to while in Thailand. Available historical records, however, did not document the use, storage, spraying or transporting of Agent Orange or any other tactical herbicides in Sattahip during the period from November 1968 to May 1969. In July 2012, VA issued a formal finding of lack of information required to corroborate the Veteran's allegation of exposure Therefore, there is no evidence of service in Vietnam or herbicide exposure on the part of this Veteran while in Thailand. As such, the presumption of in-service incurrence due to Agent Orange exposure is not applicable. VA has followed the specific procedures outlined in VA's Adjudication Procedure Manual (M21-1MR), requiring that a detailed statement of a veteran's claimed herbicide exposure be sent to Compensation and Pension Service so that a review of DoD's inventory of herbicide operations can be undertaken. Since exposure was not verified, the request was subsequently submitted to JSRRC. Despite these efforts, confirmation of exposure to herbicide agents was found and the presumption of in-service incurrence is not applicable. The Board recognizes that the Veteran has reported exposure to Agent Orange since his original claim of September 1993. A May 1993 private treatment record also reflects that the Veteran reported being exposed to Agent Orange. The Veteran indicated in September 2005 that he was stationed in Camp Cloudy in Thailand and that he would pick up mess hall rations and mail at a location identified as "Necome Faenom" [Nakhon Phanom] in Thailand three times per week. He indicated that there was a large storage of drums containing the herbicide, Agent Orange. The Veteran also reported that it was not uncommon to raid the Vietnam Camp that was stationed nearby with the Green Berets and that these raids were considered highly secret and not for public information. While the Board has considered the above assertion, it does not demonstrate that the Veteran was in fact exposed to Agent Orange or any similar herbicidal agent. A review of the Veteran's personnel records and his unit history fails to reflect that the Veteran himself was exposed to herbicidal agents. Tactical herbicides were tested in Thailand from April 2, 1964, to September 8, 1964. However, the Veteran was not present in Thailand at this time. There is no record of tactical herbicidal use in Thailand during the Veteran's military service. The mere fact that the Veteran reported seeing barrels of an herbicide while at Nakhon Phanom Air Force Base is not in and of itself evidence of any exposure on the part of the Veteran. The Veteran also reported in September 2005 that it was not uncommon to raid the Vietnam camp that was stationed nearby while he was in Thailand. This assertion has not been verified. The evidence reflects that the Veteran served as a cook while stationed in Thailand. There is nothing in his personnel records to suggest that he had any service outside of Thailand from April 1968 to July 1969, or, that raiding missions in Vietnam were part of his duties. The JSRRC was also unable to find any evidence to suggest that the Veteran or his particular unit ever stepped foot in Vietnam as well. As such, the assertion that the Veteran visited camps in Vietnam is not in and of itself sufficient evidence of service in Vietnam or exposure to herbicides such as Agent Orange. The Veteran's representative also provided VA with a number of Internet links in July 2010, suggesting that these reflected that the Veteran was exposed to Agent Orange. One of these links is a Record of Proceedings for another veteran requesting to correct an error and receive the Vietnam Gallantry Cross Unit Citation with Palm. According to the record, that veteran served with Company B, 442nd Signal Battalion and was in Vietnam from November 1967 to November 1968. The Veteran's representative has alleged that this suggests that the Veteran was also in Vietnam. However, while the Veteran's personnel records reflect that he was attached to Company B, 442nd Signal Battalion while serving with the 379th Signal Battalion, the evidence of record does not demonstrate that the Veteran himself served in Vietnam. The Veteran was a cook with this Battalion and none of his personnel records reflect Vietnam service. In fact, the Veteran indicated in his original claim of September 1993 that he sought medical treatment in Thailand while stationed with the 442nd Signal Battalion, further suggesting that the Veteran himself did not serve in Vietnam while attached to this Battalion. Therefore, the mere fact that another veteran who served with Company B, 442nd Signal Battalion had Vietnam service does not demonstrate that the Veteran must have had Vietnam service as well. The Board notes that the Veteran has submitted a number of articles and reports regarding Air Force operations in Thailand. One of these articles, which is only partly legible due to the right margin being cut off during printing, appears to suggest that herbicides were in fact used or stored in Thailand. Another letter, which reports to be a fax from the DoD, indicates that herbicides were used in the perimeter defense areas. The Board is not disputing that non-tactical (commercial) herbicides were used within fenced perimeters in Thailand, as confirmed by the "Project CHECO Southeast Asia Report: Base Defense in Thailand." However, such commercially available herbicides are not the same as those used in Vietnam. Furthermore, the DoD has confirmed that tactical herbicides such as Agent Orange were used and stored in Vietnam and not Thailand, aside from testing in 1964. Therefore, the articles submitted by the Veteran fail to demonstrate that he was in fact exposed to an herbicide, like Agent Orange, during his military service. Since there is no evidence of service in Vietnam or exposure to herbicidal agents such as Agent Orange, service connection for diabetes mellitus type II on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(6)(iii). While the Veteran has asserted that his diabetes mellitus should be presumptively service-connected due to his alleged exposure to Agent Orange, the Board has also considered the Veteran's claim on a direct basis to afford him all possible avenues of entitlement. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). That is to say, the Agent Orange presumption does not preclude a veteran from establishing direct service connection with proof of actual direct causation. As previously noted, in order for a claim to be granted on a direct basis, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally, Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom.; Epps v. West, 18 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A review of the Veteran's service treatment records fail to reflect treatment for diabetes mellitus or any associated symptomatology. According to the Veteran's July 1969 separation examination, a urinalysis revealed the Veteran's sugar and albumin to be negative. The Veteran also denied having, or ever having had, sugar or albumin in his urine at this time. The Veteran again denied this in his May 1984 National Guard examination, and a urinalysis was again negative for sugar or albumin. As such, there is no evidence of diabetes mellitus during active military service or within some 15 years of his separation from active duty. The first evidence of diabetes mellitus of record is the Veteran's claim of March 2005. At this time, the Veteran asserted that he was first diagnosed with diabetes mellitus in January 2003. This would be approximately 34 years after his separation from active duty. As previously noted, VA treatment records from 2005 confirm a diagnosis of diabetes mellitus type II. However, none of these records suggest any potential relationship between the Veteran's diabetes mellitus and military service. The preponderance of the above evidence demonstrates that service connection for diabetes mellitus type II, on a direct basis, is not warranted. There is no evidence of this condition during active duty and a urinalysis performed in 1984 was negative for sugar or albumin. The first evidence of diabetes mellitus is the Veteran's assertion that he was diagnosed with this condition in 2003. This would be approximately 34 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the lack of evidence of a diagnosis of diabetes mellitus or treatment for any associated symptomatology for more than three decades after separation from active duty tends to suggest that this condition has not existed since a period of active duty. Finally, there is no medical evidence of record suggesting any potential link to military service and the Veteran has not alleged any such connection aside from herbicide exposure. As such, service connection for diabetes mellitus on a direct basis is not warranted. As a final matter, the Board recognizes that VA has been unable to verify all periods of Reserve service. Active military, naval or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), 24; 38 C.F.R. § 3.6(a). Accordingly, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, ACDUTRA. In the present case, however, the first medical evidence diagnosing diabetes mellitus is dated 2005. The Veteran himself confirmed in his March 2005 claim that this disability was not diagnosed until 2003. This would still be some 18 years after the completion of the Veteran's National Guard service. Any period of inactive duty for training (INACDUTRA) would not warrant service connection, as service connection is only warranted for injuries (and not diseases) incurred during a period of INACDUTRA. There is nothing of record to suggest that diabetes mellitus manifested during, or as a result of, a period of ACDUTRA. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for diabetes mellitus, to include as due to exposure to Agent Orange, must be denied. Skin Condition The Veteran also contends that he is entitled to service connection for a skin disorder. Specifically, the Veteran has asserted that he was exposed to Agent Orange while on active duty. However, as will be discussed in greater detail below, there is no evidence of service in Vietnam and no evidence of exposure to herbicidal agents such as Agent Orange. Likewise, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current skin disability that manifested during, or as a result of, active military service. As discussed in the previous section, the evidence of record does not demonstrate that the Veteran stepped foot in Vietnam during his active military service or that he was exposed to herbicides, to include Agent Orange, during military service. Furthermore, the Veteran has been diagnosed with pruritus, solar keratosis, diabetic ichtyosis and acute atopic dermatitis during the pendency of this claim. None of these conditions have been found to be associated with Agent Orange. See 38 C.F.R. § 3.309. Therefore, further consideration of this claim on a presumptive basis due to herbicide exposure is not necessary. The Board will now turn to whether service connection for a skin disorder, on a direct basis, may be warranted. According to the Veteran's September 1967 pre-induction examination, an evaluation of the skin was deemed to be normal. The Veteran also denied having, or ever having had, a skin disease. Subsequent treatment records reflect no treatment, diagnosis or complaint related to a skin disorder or any associated symptomatology. An evaluation of the skin was also deemed to be normal during the Veteran's July 1969 separation examination. The Veteran again denied a history of skin diseases in his report of medical history associated with this examination. As such, there is no evidence of in-service skin symptomatology. In his original claim seeking service connection for a skin disorder received in September 1996, the Veteran indicated that he suffered from a skin rash that had itched since 1971. This is the first evidence of a condition of the skin of record. In March 2005, the Veteran asserted that his skin condition first manifested in January 1970. However, the Board notes that the record contains a National Guard examination report dated May 1984. An evaluation of the skin performed as part of this examination was deemed to be normal and the Veteran denied having, or ever having had, suffered from skin diseases. The Veteran was scheduled for a VA examination for his claimed skin condition in November 1996. However, the record reflects that the Veteran failed to report to this examination. As such, any evidence that could have been of assistance to the Veteran's claim as a result of this examination cannot be considered. Records were also requested from the VA Medical Center (VAMC) in Northport, New York at this time. However, VA was notified that the Veteran was never admitted to this facility nor had he had any appointments. The first medical evidence of record diagnosing a skin condition is a March 2005 VA problem list notes a history of pruritus, as well as the Veteran's reported history of exposure to Agent Orange. The Veteran was afforded a VA examination of the skin in January 2012. The examiner diagnosed the Veteran with diabetic icthyosis and solar keratosis. Eczema was also noted in the examination report. It was noted that the Veteran was in combat and that he was exposed to Agent Orange. The Veteran told the examiner that he complained of a lot of itchiness and hair loss during military service but that nothing was done regarding these complaints. The examiner opined that there was little doubt that the Veteran's current skin condition (diabetic ichtyosis (or eczema)) was related to diabetes mellitus type 2. The examiner also indicated that the Veteran developed an acute atopic dermatitis upon exposure to Agent Orange. However, his current examination was most consistent with a diabetic icthyosis. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a skin condition on a direct basis. The Veteran's service treatment records do not reflect any treatment for a skin condition, and the Veteran denied a history of skin diseases upon separation in 1969. The Veteran again denied a history of skin diseases during his May 1984 National Guard examination - suggesting that he did not suffer from a chronic skin disorder within 15 years of separation from active duty. The first post-service evidence of a skin condition is the Veteran's claim of September 1996. This is approximately 27 years after the Veteran's separation from active duty. The lack of evidence of any skin condition for several decades tends to suggest that the Veteran had not in fact been suffering from a chronic skin condition since military service. See Maxson, 12 Vet. App. at 459. The record does reflect a confirmed diagnosis of pruritus as of 2005. However, the record contains no credible evidence linking this condition to military service. According to the January 2012 VA examiner, the Veteran's current skin condition was diabetic ichtyosis. The examiner opined that there was little doubt that this skin condition was secondary to diabetes mellitus. As outlined in the previous section, the Veteran is not service-connected for this condition. Also, while a diagnosis of solar keratosis was made, it was noted that this condition was not diagnosed until 2012. The record contains no evidence suggesting a relationship between this condition and military service. Also, while the Veteran was previously diagnosed with pruritus during the pendency of this claim, there is no credible evidence relating this to service. The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Nonetheless, service treatment records reflect no complaints of a skin condition and the Veteran denied any history of skin diseases upon separation in 1969 and again in 1984. There is also no credible evidence of record relating this condition to military service. As such, the preponderance of the evidence of record is against a finding that pruritus manifested during, or as a result of, active military service. The Board recognizes that the Veteran has reported a skin condition since approximately 1970 or 1971. However, the Board does not find these assertions to be credible. The Veteran specifically denied ever having suffered from a skin disability upon examination in May 1984. This greatly calls into question the Veteran's more recent assertions that he had in fact been suffering from a chronic skin disorder for 13 to 14 years prior to this date. The Board finds the Veteran's assertions offered closer to his time in service to be more credible than his assertions offered years later in 1996 that were made in conjunction with his claim for benefits. The Board may properly consider financial interest when assessing credibility. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Finally, the Board also notes that the January 2012 VA examiner concluded that the Veteran did suffer from an acute skin disorder during military service that was secondary to Agent Orange exposure. This finding is of no probative value. Initially, the evidence of record indicates that the Veteran was not exposed to Agent Orange during military service. Furthermore, a review of the Veteran's service treatment records fail to reflect that he was ever treated for, or diagnosed with, a skin condition. In fact, the Veteran denied such a history in May 1984. The examiner's diagnosis of an in-service skin condition is, therefore, without probative value. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a skin disorder, to include as secondary to exposure to Agent Orange, must be denied. CONTINUED ON NEXT PAGE... ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange, is denied. Service connection for a skin disorder, to include as due to exposure to Agent Orange, is denied. REMAND The Veteran asserts that he is entitled to service connection for ankylosing spondylosis and arthritis. Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. These claims were previously remanded by the Board in August 2010 so that the Veteran could be scheduled for a VA examination to determine the etiology of these conditions. In formulating a decision, the examiner was asked to specifically consider a February 1968 in-service treatment record reflecting a right shoulder injury. A review of the January 2012 VA examination report, and its associated addendum of January 2012, fails to reflect that the Veteran's shoulder injury of 1968 was ever mentioned - let alone discussed. As such, further remand is necessary so that the previously requested examination/medical opinion can be provided. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file and a copy of this remand should be returned to the VA examiner of January 2012 (to the extent that this examiner is still available) so that an addendum to the previous examination report can be prepared. If this examiner is no longer available, the Veteran's claims file, along with a copy of this remanded, should be forwarded to a VA physician of similar experience and knowledge. It is not necessary that the Veteran be present for the examination unless deemed so by the examining physician. Upon review of the claims file, to include the service treatment records (and the injury to the shoulder in February 1968), as well as the previous examination reports and medical evidence of record, the examiner must opine as to whether it is at least as likely as not that the Veteran's spondylosis manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury. The examiner should also opine as to whether it is at least as likely as not that the Veteran's arthritis of the lumbar and/or cervical spine (assuming that these disabilities are noted in the medical evidence of record) manifested during, or as a result of, active military service, to include the February 1968 right shoulder injury. A complete rationale must be provided for all opinions offered and the examiner should consider and discuss lay statements provided by the Veteran in support of his claim. 2. Then, after ensuring any other necessary development has been completed, readjudicate the claims of entitlement to service connection for spondylosis and arthritis. Consider any additional evidence added to the record. If the action remains adverse to the Veteran, provide him and his representative with a supplemental statement of the case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs