Citation Nr: 1318850 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 06-31 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO) (which was readjudicated by a June 2005 rating decision). In July 2008, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In September 2008, April 2010, and August 2012, this matter was remanded by the Board for additional development. Prior Board remands had referred to the agency of original jurisdiction (AOJ) for clarification/any appropriate action the issues of service connection for erectile dysfunction and secondary depression (raised by the Veteran's representative in a March 2010 communication). It appears that the Appeals Management Center (AMC), forwarded the referral to the RO (see March 2013 memorandum). The record before the Board leaves unclear whether the RO has acted on these matters. Consequently, these matters are again referred to the AOJ for clarification/any appropriate action. FINDINGS OF FACT 1. It is not shown that the Veteran set foot on land in the Republic of Vietnam, or served in Korea in an area where herbicides were used, and there is no evidence that he was otherwise exposed to herbicide agents (to include Agent Orange) during service. 2. Diabetes mellitus was not manifested in service, or in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's diabetes mellitus is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for diabetes mellitus, type II, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. March and June 2004 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A June 2008 letter informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO did not arrange for a VA examination/opinion as to the claim decided herein. The Board has considered whether an examination is necessary. Absent any competent (medical) evidence suggesting that the Veteran's diabetes may be associated with his service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4). The Board notes that the August 2012 remand directed that the RO should arrange for development to determine the location of the various sites the Veteran alleged he visited in relation to the DMZ. The RO was also instructed to secure a supplemental opinion from the Department of Defense (DoD) as to whether there is any evidence that during the Veteran's service in Korea, his unit was in any way involved with herbicides. Pursuant to this remand, the RO contacted the Joint Services Records Research Center (JSRRC) in September 2012. The JSRRC issued a response identifying the distance from the DMZ of each of the various sites the Veteran alleged he visited. The JSRRC noted that there is no evidence to document the use, storage, spraying, or transporting of herbicides [by the Veteran's units], and that [his unit's] histories do not mention any specific duties performed by the unit along the DMZ. Based on this information, the RO/AMC found that they were unable to verify herbicide exposure or to seek a supplemental opinion from DoD (as there was no new evidence, and another request would be redundant and futile). Accordingly, the Board finds there was substantial compliance with the August 2012 remand directives. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). Certain chronic diseases (to include diabetes mellitus) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for diabetes mellitus). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is not alleged that diabetes was manifested in service, or soon thereafter. The Veteran's proposed theory of entitlement to the benefit sought is one of presumptive service connection, based on an allegation of exposure to herbicides in Korea. The Veteran alleges that he was exposed to herbicides (to include Agent Orange) while serving as a courier driver in Korea when he traveled to various camps/bases along the DMZ, or alternatively by virtue of winds carrying herbicides throughout Korea. DoD has confirmed that Agent Orange was used along the DMZ in Korea from April 1968 through July 1969. M21-MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10, Subsection (1). Notably, during the pendency of this appeal, effective February 24, 2011, VA amended 38 C.F.R. § 3.307, adding subsection (a)(6)(iv), thereby permitting presumptive service connection [for certain diseases, including type II diabetes mellitus] if a Veteran had active military, naval, or air service, between April 1, 1968 and August 31, 1971 in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been used during that period. See 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's service personnel records (SPRs) show that he was stationed in Korea from June 1969 to February 1970; that his military occupational specialty was Radio Relay and Carrier Operator; and that he was stationed at Camp Page. They do not show that he was assigned to a unit recognized as having served in the DMZ when Agent Orange was sprayed there. The Veteran's STRs are silent for complaints, treatment, or diagnosis of diabetes, to include on January 1970 service separation examination. Significantly, on said evaluation, the Veteran's endocrine system was evaluated as normal and a urine test was negative for sugar. Postservice VA treatment records (since approximately 1987) consistently reflect a diagnosis of, and treatment for, diabetes mellitus with related hemochromatosis. In January 2005, the National Personnel Records Center (NPRC) certified that there is no record of the Veteran being exposed to herbicides in service. A May 2008 statement from a former fellow-serviceman (G.C.) reports that the Veteran's duties as a courier driver in Korea required him to travel several times to northern military bases "close to the DMZ." A June 2008 statement from Sergeant G.S. states that the Veteran's duties required him to drive to several Army bases in Korea, including "up by the DMZ." An August 2008 statement from J.T., the Commanding Officer of Headquarters Battery, 7th Battalion (HAWK), 5th ADA, reports that due to personnel shortages the Veteran had to be courier driver for the Battalion; in that role, he was responsible for the movement of official documents and critical repair parts to other HAWK units deployed "across the Korean DMZ." He stated that the Veteran delivered documents to many places in Korea, including Osan Air Force Base, Seoul, KMAG detachment north of Chunchon along the DMZ, Camp Casey, Camp Red Cloud, Camp Castle, Camp Hovey, Camp Kaiser, and Inchon. In a June 2004 communication, the Veteran indicated that in addition to the above-mentioned locations, he also traveled to Ascom, Pusan, and Tagu. At the July 2008 videoconference hearing before the undersigned, the Veteran testified that he arrived in Korea one month prior to when DoD stopped spraying Agent Orange, and that he worked close to the DMZ as a courier driver. He stated that diabetes was diagnosed in 1987. In December 2008, the RO (via AMC) contacted the NPRC requesting a search of morning reports from October 1969 through March 1970 for remarks regarding a courier driving to Osan Air Force Base, Camp Casey, and Camp Red Cloud. Also listed were Seoul, KMAG Detachment north of Chunchon along the DMZ, Camp Castle, Camp Hovey, and Camp Kaiser. In March 2009, the NPRC responded that they were unable to conduct a search based on the information provided, and that the information necessary included the complete organization of assignment-company. In August 2009, NPRC responded that a search of morning reports of [the Veteran's unit] from June 1969 through July 1969 for remarks regarding a courier driver being sent near the DMZ proved negative. In December 2010, the DoD responded that review of a 1969 history of the Veteran's unit in Korea (7th Battalion, 5th Artillery) revealed that the main location of the Battalion Headquarters was Camp Page, Chunchon, Korea, located approximately six miles from the DMZ. However, this history did not document the use, storage, spraying, or transportation of herbicides. In addition, the history did not mention or document any specific duties performed by unit members along the DMZ. In January 2010, the AMC secured a memorandum (prepared by a retired officer who served near most of the camps cited) essentially to the effect that the Veteran's claim regarding herbicide exposure is implausible. A February 2012 VA treatment record noted Agent Orange registry diagnoses [for the Veteran] including possible exposure to toxic herbicides and diabetes mellitus. They are based solely on his own self-reports of herbicide exposure, and because they are self-serving, lack probative value. Following an August 2012 Board remand requesting development to determine the location of the various sites the Veteran allegedly visited in relation to the DMZ, the RO sought such information from the JSRRC in September 2012. In November 2012, JSRRC responded: "We have reviewed the 1969-1970 unit histories submitted by the 28th Artillery Brigade (28th Arty Bde), the higher headquarters of the 7th Battalion, 5th Arty was located at Camp Page, approximately six miles from the Demilitarized Zone (DMZ). The histories also document that the 7th Bn, 5th Arty was located near the DMZ on some of the highest missile sites in the world. In addition, the histories document that the Brigade was made up of one Hercules Battalion and four Hawk Battalions. They dispersed from Chunchon, near the DMZ, to Kunsan. Camp Hovey is located approximately 9 miles from the DMZ, Camp Casey is located approximately 13 miles from the DMZ,...Camp Kaiser is located approximately 14 miles from the DMZ, Camp Red Cloud is located approximately 19 miles from the DMZ and Incon is located approximately 43 miles from the DMZ. The histories do not document the use, storage, or spraying, or transporting of herbicides. In addition, they do not mention or document any specific duties performed by the 7th Bn, 5th Arty along the DMZ." In a March 2013 formal finding the AMC stated that there was a lack of information to corroborate the Veteran's allegation of exposure to herbicides in Korea. Analysis If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Department of Defense (DoD) has determined that Agent Orange was used along the Korean DMZ from April 1968 to July 1969; Veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are presumed to have been exposed to herbicide agents. At the outset, it is noteworthy that there is no evidence, nor has the Veteran claimed, that he served in Vietnam. Rather, he claims herbicide exposure from his service in Korea. The Veteran's SPRs show that he served in Korea beginning in June 1969, within the time frame identified by the DoD as when Agent Orange spraying occurred. However, as the evidence above indicates, there is no evidence that he indeed was exposed to herbicides while serving in Korea. Instead, the JSRRC has determined that the sites occupied by the Veteran's unit were miles away from the DMZ and found that the relevant unit histories do not document the use, storage, spraying, or transport of herbicides at such locations. Further, the histories do not mention or document any specific duties performed by the Veteran's unit along the DMZ. [The Board notes that this case was remanded three times in an effort to verify the Veteran's alleged herbicide exposure, and now finds that all means for such developments have been exhausted. The Board finds that based on the record outlined above the Veteran is not shown to have been exposed to herbicides while serving in Korea (or elsewhere).] Consequently, the Veteran is not entitled to consideration of his claim under the Agent Orange presumptive provisions of 38 U.S.C.A. § 1116. Under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994), he may still establish service connection for diabetes as due to herbicide exposure with proof of direct causation. He has not shown, nor does he contend, that he served any place other than Korea where tactical herbicides are known to have been used. He also has not submitted any evidence showing that he was in fact exposed to herbicides. Lay "buddy" statements placing him as serving within several miles of the DMZ do not allege any personal knowledge of his exposure to herbicides. They are not inconsistent with the formal findings that the Veteran served miles from where herbicides were used (and is not shown to have been exposed to herbicides in Korea). There is no evidence (and it is not alleged) that diabetes was manifested in service. Furthermore, there is no competent evidence that diabetes was manifested in his first postservice year. The record shows that diabetes was diagnosed in approximately 1987, some 17 years after the Veteran's separation from service. Hence, service connection for such disease on the basis that it became manifest in service and has persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether or not the Veteran's diabetes may somehow otherwise be related to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether or not a chronic disease with an insidious onset such as diabetes may be related to service that ended approximately 17 years earlier is a medical question, and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his theory that his diabetes is etiologically related to his service. Consequently, his opinion in this matter is not competent evidence. The preponderance of the evidence is against a finding that the Veteran served where tactical herbicides were used, and against a finding that he was exposed to herbicides in service so as to warrant consideration of his claim under the presumptive provisions of 38 U.S.C.A. § 1116. There is no competent evidence that shows or suggests that the Veteran's diabetes may somehow otherwise be related to his service. Accordingly, the preponderance of the evidence is against the claim of service connection for diabetes. Therefore, the appeal in this matter must be denied. ORDER Service connection for diabetes is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs