Citation Nr: 1318534 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 04-30 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from January 1971 to January 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of June 2003 by the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO). In April 2007, October 2009, June 2011, and August 2012 the Board remanded the appeal for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran served during the Vietnam Era, but not that he service in the Republic of Vietnam; thus, exposure to herbicide agents in service is not presumed. 2. Competent evidence shows that the Veteran's diabetes mellitus was not present during service or for many years after service; the preponderance of the evidence is against a finding that the currently diagnosed diabetes mellitus is related to active service. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a) (1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A (b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in April 2007 and May 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that complete notice was not issued to the Veteran prior to the adverse determination on appeal. The Board acknowledges that complete notice did not pre-date the initial unfavorable determination on appeal in this case. However, fully compliant notice was issued later, and the claim was thereafter readjudicated most recently in a March 2013 supplemental statement of the case (SSOC). Thus, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). 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). The claims file contains the service treatment records, as well as all available post-service reports of VA and private treatment and examinations. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence pertinent to the Veteran's claim. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c) (4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran has not been provided with a VA examination relating to his claim. The Board finds, however, that no VA examination is required in this case because there is no credible lay or medical evidence of onset of the claimed disability in service or a continuity of symptomatology since service, and no competent evidence otherwise linking diabetes mellitus to service. 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, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Board has reviewed all the evidence in the appellant's paper and electronic claims files, to include his testimony and contentions of record. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations further provide, in pertinent part, that if a Veteran was exposed to certain herbicide agents (such as Agent Orange) during active military, naval, or air service, certain diseases including Type II diabetes mellitus shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) 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. 38 C.F.R. § 3.309(e). Recently, 38 C.F.R. § 3.309(e) has been amended to include hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. As the Veteran's claims do not involve such disabilities, further consideration of the implementation of the amended regulation is not required. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Notice, 75 Fed. Reg. 32540, 32548 (June 8, 2010). In this case, the Veteran essentially contends that he is entitled to service connection for type II diabetes mellitus on a presumptive basis due to herbicide exposure while he was stationed at Kadena Air Force Base (AFB), Okinawa, Japan. He has provided no further information regarding his alleged herbicide exposure, The evidence reveals that the Veteran was stationed at Kadena AFB, Okinawa, Japan from approximately August 1976 through January 1979. His Military Occupational Specialties (MOS) during this time included fire control. Post-service VA treatment records dating since approximately 1990 show that the Veteran has been diagnosed with type II diabetes mellitus. As previously stated, type II diabetes mellitus is one of the specific diseases listed in 38 C.F.R. § 3.309(e) as being due to herbicide exposure. A December 1997 Kaiser Permanente treatment record indicated that the Veteran had a 10 year history of diabetes mellitus. The Veteran was shown to be on oral medication for diabetes. Notwithstanding his diagnosis of a specific disease listed in 38 C.F.R. § 3.309(e) as being due to herbicide exposure, however, the evidence fails to establish that the Veteran was exposed to herbicides during active service. Specifically, the record does not reflect, and the Veteran explicitly denied, that he had service in the Republic of Vietnam during the Vietnam Era. Indeed, the Joint Services Research and Records Center (JSRRC) determined that the Veteran was stationed at Kadena AFB in Okinawa from approximately August 1976 to January 1979. There were no records of exposure to herbicides for the Veteran. The Board finds that, in this Veteran's case, the claimed in-service herbicide exposure events have not been independently verified by credible supporting evidence. In response to the Veteran's statements, the AMC/RO confirmed that the Veteran had service at Kadena AFB, Okinawa, Japan. Additionally, in September 2012 and February 2013, the AMC/RO requested that the Veteran provide specific information and details as to the date, times, locations and circumstances of his claimed herbicide exposure, and the name and unit he served in, so that a search of relevant unit records could be undertaken in an effort to confirm his alleged herbicide exposure with National Archives and Records Administration (NARA) and the United States Army and Joint Services Record Research Center (JSRRC). The Veteran failed to respond to the AMC/RO's requests. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). Furthermore, a review of the listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD) (which is attached to the March 2013 AMC letter) does not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at air bases in Okinawa, Japan, during any time frame. The records compiled by the DOD fail to show that Agent Orange was located, stored, or used at Kadena air bases in Japan at any time during the period from August 1976 to January 1979. While the Veteran assumes that he was exposed to herbicides or residual herbicides that he assumes were at the Kadena Air Force Base in Japan, or through any kind of exposure to herbicides that may have passed through on their way from Vietnam, that theory is not one that has been accepted by the VA as an indication of exposure to herbicide agents, or has otherwise been supported by historical evidence, and therefore also cannot serve as a basis for service connection. The Board further notes the Veteran's representative in a July 2012 Post-Remand Brief noted that a June 15, 2012, article in the Japan Times reflected the possibility that hundreds of barrels of defoliating chemicals were dumped at Futenma Air Base on Okinawa Island sometime following the wars. In response JSRRC attached an investigative report summary dated January 2013 which noted that some U.S. veteran's remembered an actual historic event in which a ship was stranded on a reef and was observed to be unloading several large 55 gallon drums. However, an extensive search of all known available records did not validate that any herbicide Orange was involved in these events, nor were there records that herbicide Orange was shipped to or through, unloaded, used, or buried on Okinawa. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides during service, and service connection for type II diabetes mellitus on a presumptive basis under provisions relating to herbicide exposure is not warranted. 38 C.F.R. §§ 3.307(a) (6), 3.309(e). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not contend, and the medical evidence of record does not show, that type II diabetes mellitus was present in service or for many years thereafter. The Veteran's service treatment records reflect no entries related to complaints, findings, diagnosis or treatment for type II diabetes mellitus or related symptomatology. There is no evidence of the claimed diabetes until approximately October 1990, more than 6 years after his discharge from service. Even accepting the 1997 treatment record indicating a 10-year history of diabetes mellitus, such onset would still be 3 years following separation. Moreover, the Veteran does not contend, and the medical evidence does not suggest, that the claimed diabetes mellitus is directly related to military service. Specifically, there is no medical opinion of record suggesting the claimed disability is related to military service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claims. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the record does not contain competent lay evidence of continuity of symptomatology such as to overcome such gap in time. In light of the foregoing, service connection for diabetes mellitus is not warranted on a direct basis or on a presumptive basis. The Board acknowledges the Veteran's sincere belief that his diabetes mellitus is related to his military service. As a layperson, however, his own assertions attributing his current diabetes mellitus to service are not competent evidence. This is a medical question requiring medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In summary, the claimed diabetes mellitus was not shown in service or for many years thereafter, the preponderance of the competent evidence of record indicates that the Veteran was not exposed to herbicides during active service, and there is no competent evidence suggesting a link between service and the Veteran's diabetes mellitus. Therefore, the preponderance of the evidence is against a finding of service connection for type II diabetes mellitus on any basis. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, service connection for the claimed diabetes mellitus must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs