Citation Nr: 1320466 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 04-20 426A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Appellant, his wife, and his daughter ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 decision by the RO in Chicago, Illinois that denied service connection for diabetes mellitus. In a January 2004 rating decision, the RO confirmed and continued the previous denial of service connection for diabetes mellitus. The Veteran testified at video conference hearings before the undersigned Veterans Law Judge in September 2005 and April 2013; the hearing transcripts have been associated with the claims file. In a June 2007 decision, the Board denied service connection for diabetes mellitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2008 joint motion for remand, the parties (the Veteran and the Secretary of VA) agreed that additional development was required. In a May 2009 order, the Court granted the joint motion, vacated the Board's decision, and remanded the case to the Board for readjudication. The Board then remanded the case to the Appeals Management Center (AMC) in November 2009, May 2011 and September 2012 for additional development. The case was subsequently returned to the Board. Additional pertinent evidence was received from the Veteran in April 2013. As the Veteran's representative has waived initial RO review of this evidence at the April 2013 Board hearing, the Board will consider it. 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The Veteran did not have verified service in Vietnam during the Vietnam era. 2. The Veteran's current Type II diabetes mellitus was first manifested many years after his separation from service. 3. The preponderance of the competent and credible evidence does not show that his Type II diabetes mellitus initially manifested during a period of active duty service. Nor does the evidence show that this disease is the result of any event, disease, or injury during his active duty service, including his alleged herbicide exposure, or otherwise related or attributable to his service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist this Veteran in substantiating this claim for VA benefits upon receipt of his complete or substantially complete application. 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). To this end, VA must inform him of any information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, letters dated in August 2002 and June 2003 were sent to the Veteran prior to the April 2003 and January 2004 rating decisions on appeal, i.e., in the preferred sequence. The letters informed him of the type of information and evidence required to substantiate his claim for service connection and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. Additional notice was provided in letters dated in February 2010 and September 2011, including as to the "downstream" disability rating and effective date elements of this claim. See Dingess/Hartman, supra. The claims were most recently readjudicated in a May 2012 supplemental statement of the case, so have been reconsidered since providing all required notice. Thus, although some of this notice was provided after the initial adjudication of the claim, the subsequent reconsideration of this claim rectifies ("cures") the timing defect in the provision of this notice. See Mayfield IV and Prickett, supra. So he has received all required VCAA notice concerning this claim. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained his service treatment records (STRs), service personnel records (SPRs), private medical records as identified by him, records from the Social Security Administration (SSA), and VA treatment records. Moreover, as discussed in greater detail below, the Board has determined that he has not submitted or identified competent and credible evidence etiologically linking his currently diagnosed diabetes mellitus to a period of qualifying active service. Thus, the Board finds it unnecessary to remand his claim for a VA examination and nexus opinion. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has previously remanded this case on several occasions in an attempt to verify his assertion that he was exposed to Agent Orange in the United States, either while he was stationed in Georgia or in Alaska. In this regard, VA has contacted the Department of Defense and the JSRRC and received responses from each. The requested remand actions have been completed. The Board is therefore satisfied there was sufficient compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Pursuant to the Court's remand, development was undertaken to determine whether the Veteran was stationed at Ft. Richardson, Alaska, during his service. The Veteran's service personnel records have been associated with the claims file, and they contain no reference to Ft. Richardson. Moreover, the Veteran's Court attorney wrote letters dated in December 2009 and June 2010 in which he confirmed that any reference to Ft. Richardson was erroneous, and that the Veteran's correct duty station was Ft. Wainwright, Alaska. The Board notes that the attorney no longer represents the Veteran in any legal capacity. However, in light of his statements and the information contained in the Veteran's personnel records, the Board finds that no additional development is necessary with respect to any purported service at Ft. Richardson, Alaska. The Board finds that in fact the Veteran served at Fort Wainwright, as demonstrated by the SPRs, the Veteran's statements, and statements by the Veteran's former representative. All available records and medical evidence have been obtained, which are obtainable, in order to make a fair determination concerning this claim. Hence, no further notice or assistance is required to fulfill VA's obligations concerning this 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). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of this claim. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that this was done at the September 2005 and April 2013 Board hearings. Moreover, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the September 2005 and April 2013 Board hearings. Analysis The Veteran served on active duty from August 1963 to July 1966. The evidence does not reflect, and he does not contend, that he served in Vietnam. The Veteran contends that he incurred diabetes mellitus as a result of exposure to Agent Orange during his service in the United States during the Vietnam era. The Board has reviewed all of the evidence in the appellant's claims file and in his electronic Virtual VA folder. Although the Board has 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 Board's 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 is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases like diabetes mellitus are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, 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(a). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diabetes mellitus is such a chronic condition under 38 C.F.R. § 3.309(a). The Veteran contends that his diabetes mellitus is due to Agent Orange exposure during his military service in Alaska or Georgia. Governing law and regulation provide that if a Veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include Type II (adult-onset) Diabetes. 38 C.F.R. § 3.309(e) (2012). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence establishing that he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Significantly, however, the Veteran does not contend, and the evidence does not otherwise show, that he served in the Republic of Vietnam during the Vietnam war (i.e., from January 9, 1962, to May 7, 1975), such that in-service herbicide exposure might be presumed. 38 U.S.C.A. § 1116(a)(1), (f); 38 C.F.R. § 3.307(a)(6) (2012). As noted, the Veteran did not serve in Vietnam. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App 164, 167 (1999). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, medical evidence on file shows a current disability of diabetes mellitus, type II. So resolution of this appeal turns on whether this disease is attributable to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of 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 a disease incurred in service."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran's service personnel records indicate that he was an aircraft repairman, and that he was stationed at Fort Wainwright in Alaska from February 1965 to March 1966 with the 568th Transportation Company, USARAL. Prior to his service in Alaska, the Veteran was stationed at Fort Hood, Texas, and Fort Benning, Georgia. The record does not reflect any service in the Republic of Vietnam, nor does the Veteran contend that he had service in the Republic of Vietnam. Rather, the Veteran contends that he was exposed to Agent Orange as a result of his duties performing aircraft maintenance in the United States. Specifically, he stated that he worked on aircraft that were used to spray Agent Orange in Vietnam, or aircraft that had dirt on them from Vietnam which contained Agent Orange. The Veteran's service treatment records, to include August 1963 enlistment and June 1966 separation medical examinations, are entirely negative for complaints, treatment or diagnosis of diabetes mellitus. In a June 1966 report of medical history, the Veteran denied a history of sugar or albumin in his urine. Post-service medical records are negative for diabetes mellitus for many years. The first medical evidence of diabetes mellitus is dated in 1992. VA medical records dated in July 1992 reflect that the Veteran was treated for chest pain. He reported that his borderline diabetes was diagnosed one year ago in a routine medical check. He stated that his mother was an insulin dependent diabetic, and one sister had diabetes, but two brothers and two sisters were healthy. He was referred for diabetic education regarding diet control. A September 1992 nutrition control consultation report reflects that the Veteran was an over-the-road truck driver and ate most of his meals at truck stops. It was noted that he was 132% of his ideal body weight, and he was advised to lose weight. Subsequent medical records reflect diagnoses of diabetes mellitus, obesity, and hypertension, among other conditions. A May 1996 VA hospital discharge summary reflects that the Veteran had non-insulin-dependent diabetes mellitus for three and one-half years. A May 1999 VA outpatient treatment record reflects that the Veteran had uncontrolled type II diabetes mellitus. The Veteran reported that he was a truck driver, his diet was sporadic, and he ate whatever was available to him. A January 2001 primary care note reflects that he had diabetes mellitus for five to six years. During the course of this appeal, the Veteran has asserted that his current diabetes mellitus was caused by Agent Orange exposure during a period of military service in Alaska or Georgia. In his original July 2002 claim for service connection, the Veteran asserted that he had a diabetic condition since 1987, and was exposed to Agent Orange while working on aircraft in Fairbanks, Alaska from 1965 to 1966. In a September 2002 statement, the Veteran asserted that he was exposed to Agent Orange during service while working on aircraft in Fairbanks, Alaska. He said the planes would fly to Vietnam and drop their herbicide, then fly to Fairbanks so they could work on them. On VA examination in October 2002, the Veteran reported that during service at Fort Wainwright, he cleaned and scraped the paint off of fixed wing aircraft which had sprayed Agent Orange in Vietnam. He said he did this from 1965 to 1966. He reported that he had diabetes mellitus for at least 16 to 18 years. The examiner noted that he had reviewed the claims file and the Veteran had diabetes since approximately 1993. The examiner diagnosed diabetes mellitus, type II, coronary artery disease, hypertension, hyperlipidemia, and obesity. In an August 2003 statement, the Veteran said that he did not serve in Vietnam. He contended that he was exposed to herbicides at Fort Wainwright, Alaska, while working on one particular plane, the O-1, known as a "Bird Dog," in which the back seat had been taken out and replaced with a spray tank. When the plane came to him, the tank had been removed, and the floor was still wet with "herbicide liquid." He also reported working on several other aircraft at Fort Wainwright. He said that he also worked on "Caribou" aircraft at Fort Benning and Fort Gordon, Georgia, and that these planes had just returned from Vietnam. He contended that he was exposed to Agent Orange while working on these planes, and that he had diabetes mellitus as a result. He reiterated these assertions in subsequent statements and testimony. At his September 2005 Board hearing, the Veteran testified that he was first diagnosed with diabetes in 1991. He said he did not really go to the doctor much before that. He asserted that he was exposed to Agent Orange while working on airplanes at Fort Wainwright, and that he also cleared brush from airfields that had been sprayed and where there was dead vegetation. At his April 2013 hearing, the Veteran reiterated many of his assertions. He related that he worked on aircraft at Fort Wainwright which had been involved in spraying herbicides, and that his company commander told him there was Agent Orange on one of the aircraft he worked on. He also said that he worked on aircraft at Fort Benning and Fort Gordon which were not involved in spraying, but which had Vietnam dirt on them which had been sprayed with Agent Orange. The Veteran has provided no indication that he is competent to identify or distinguish the herbicides listed in 38 C.F.R. § 3.307(a)(6). Bardwell v. Shinseki, 24 Vet. App. 36 (2011). Although the Board has taken into account the Veteran's belief that his diabetes mellitus was caused by herbicide exposure, the Board notes that as a lay person, he is not qualified to identify any chemical compound that he may have been exposed to during service without substantive evidence. During the course of the appeal, the Veteran has submitted photocopies from various newspaper articles, internet sites, and government reports in support of his claim. The Board notes that generic texts, such as the ones offered, which do not address the facts of this particular Veteran's case with a sufficient degree of certainty, do not amount to competent evidence of causality. See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996). He also submitted a September 2003 memorandum from H.L.G., an environmental scientist at Fort Wainwright, who asserted that there was a direct link between Agent Orange and Army O-1 aircraft. He said that as the war in Southeast Asia "wound down," O-1 aircraft were disassembled and shipped to Alaska. He said that virtually all of these aircraft were equipped with spray booms and utilized on a part-time basis in defoliant missions. He concluded that therefore there was a high degree of probability that any O-1 aircraft at Fort Wainwright "could have been contaminated with 245 TP (Silvex) (Agent Orange)." He also said that Agent Orange was used along the Haines Pipeline in Alaska from 1955 through 1971, and that 245 TP (Silvex) contamination had been discovered along that pipeline. VA has made multiple inquiries to attempt to verify the Veteran's claimed herbicide exposure. A VA Compensation and Pension Service policy staff member stated in an October 2003 reply to an RO inquiry, that the Department of Defense inventory does not contain any instance of herbicide use, testing, or disposal in Alaska. A December 2003 telephone communication with the Deployment Health Support Office of the Secretary of Defense indicates the Director of the United States Aviation Museum in Fort Rucker stated that there was no evidence that the Type O-1 aircraft, identified by the Veteran, was used for herbicide spraying, stating that a sprayer had not been developed for this aircraft and the lifting capacity of the O-1 aircraft was limited. In response to a RO inquiry, a December 2003 response from the Deputy Director of the Deployment Health Support Office, of the Department of Defense, stated that they had examined the evidence available in this case. The Deputy Director stated first, in response to the article cited in the Fairbanks Daily News-Miner, that at that time, it was premature to conclude that 2,4,5-T was sprayed along the Alaskan pipeline. Further, the Deputy Director indicated that aerial pipeline spraying in Alaska was performed by contractors using helicopters. The Deputy Director noted that the veteran reported that he was exposed to "Agent Orange" while servicing aircraft that had sprayed the herbicide in Vietnam, and specifically cited working on the O-1 "Bird Dog." The Deputy Director stated that they had no records indicating O-1s sprayed herbicides in Vietnam. This was based on information from the Director of the United States Aviation Museum at Fort Rucker, Alabama, which had extensive files on the O-1. In response to the Yukon Sentinel article submitted by the Veteran, the Deputy directed noted that it referenced an insecticide repellent spray mission over Fort Wainwright; and that the insecticide repellent fogging operation was not the same as an herbicide spray operation which would require an entirely different dispersal system. The Deputy Director noted that the Veteran served at Fort Wainwright from February 1965 to March 1966, when he claimed exposure to an herbicide agent. The Deputy Director stated, however, that 95 percent of herbicide spray operations in Vietnam occurred between 1966 and 1970. The Deputy Director stated that the letter from the environmental scientist at Fort Wainwright, submitted by the Veteran, cited the use of the herbicide Silvex (2,4,5-TP) at formerly used defense sites in Alaska. He stated that although Silvex (2,4,5-TP) was a chlorophenoxy herbicide, as was 2,4,5-T, they were not the same. He noted that Silvex (2,4,5-TP) contained only low levels of dioxins, and unlike 2,4,5-T, Silvex was not one of the four herbicides covered under the Department of Veterans Affairs' presumptive status legislation. In verifying herbicide exposure for locations other than Vietnam or the DMZ in Korea, VA will furnish the Veteran's description of exposure to VA Compensation and Pension (C&P) Service and will request a review of the Department of Defense's (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged. See VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 10(n). If C&P service's review does not confirm herbicides were used as alleged, VA is then required to submit a request to the U.S. Army & Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. Id. Accordingly, in its November 2009 remand, the Board instructed the RO/AMC to undertake development to determine whether the Veteran was exposed to herbicides as a result of his duties in service. Specifically, the RO/AMC was to furnish the Veteran's description of herbicide exposure to Compensation and Pension (C&P) and request a review of the Department of Defense's (DoD) inventory of herbicide operations to determine whether the Veteran could have been exposed to herbicides as a result of working on OH-13 and U6A aircraft at Fort Wainwright, Alaska and/or working on "Caribou" aircraft at Fort Benning and Fort Gordon, Georgia. Based on a review of DoD documentation, two memoranda were generated by C&P and associated with the claims file. They discuss the use of herbicides in and around the bases in Alaska and Georgia at which the Veteran was stationed. The Board notes that neither memorandum confirms exposure to Agent Orange or other tactical herbicides. In February 2012, the information regarding the Veteran's claimed herbicide exposure was forwarded to the U.S. Army and Joint Services Records Research Center (JSRRC) for a review of unit or other records that might corroborate the Veteran's claims of herbicide exposure. A Defense Personnel Records Information Retrieval System (DPRIS) response was received from JSRRC in March 2012, and stated: U.S. Army historical records available to us do not document the spraying, testing, transporting, storage or usage of Agent Orange at Fort Benning, Georgia, Fort Hood, Texas, or Fort Wainwright and Fort Richardson, Alaska. We also reviewed the history of the U.S. Department of Defense (DOD) programs for the Testing, Evaluation, and Storage of Tactical Herbicides and the DOD listing of herbicide spray areas and test sites outside the Republic of Vietnam; Fort Benning, Georgia, Fort Hood, Texas, and Fort Wainwright and Fort Richardson, Alaska are not listed locations. Therefore, we are unable to verify or document that [the Veteran] was exposed to Agent Orange or other tactical herbicides at any of these locations. In its response, the JSRRC also stated that the unit history for the 568th Transportation Company for the relevant period did not document that the unit, or personnel assigned to that unit, were involved in repairing aircraft that were used to spray Agent Orange in Vietnam. In a March 2012 memorandum, the AMC indicated that after multiple attempts to verify the Veteran's contentions, his alleged Agent Orange exposure could not be verified. The newspaper articles and other documentation submitted by the Veteran, as shown by the December 2003 letter from the Department of Defense, do not corroborate the Veteran's allegations, and the JSRRC also did not verify his claimed Agent Orange exposure in the United States. Thus, the Board finds that the Veteran does not have confirmed in-service exposure to an herbicide agent as defined by applicable regulation that would trigger VA's presumptive service connection provisions. As noted, it is not confirmed and the Veteran does not contend that he was in the Republic of Vietnam. Moreover, the evidence does not show exposure during service to the herbicides 2,4-D; 2,4,5-T; and its contaminant, TCDD; cacodylic acid; and picloram. Finally, the record does not contain competent evidence that the Veteran's current diabetes mellitus is the result of exposure to Silvex. In sum, the Veteran's contention that he was exposed to an herbicide agent during service has not been corroborated by independent evidence of record. The Board finds that the weight of the evidence of record does not indicate that the Veteran was ever directly exposed to herbicides during his period of active service. Accordingly, the presumptions governing herbicide exposure are not for application here. 38 C.F.R. § 3.309(e). There is no competent medical evidence of record linking the current diabetes mellitus with service, to include the claimed Agent Orange exposure. The evidence does not reflect that diabetes mellitus was manifested in service or within the first post-service year, and the Veteran does not contend that they did. He has consistently stated that diabetes mellitus was first found many years after his separation from service. He has proffered varying onset dates for this condition that are years after his separation from service. Moreover, he has never reported continuous symptoms of diabetes mellitus ever since service, and since this disease was not noted or observed during his service, the provisions of 38 C.F.R. § 3.303(b) regarding continuity of symptomatology since service do not apply in any event. There is no evidence of treatment or diagnosis of diabetes mellitus for many years after his separation from service in 1966, and in fact the evidence clearly demonstrates that diabetes mellitus was first manifested in 1991. He has never asserted that diabetes mellitus began in service or soon afterwards. And as he has reported varying onset dates for his claimed condition throughout this appeal, this undermines his credibility at least with respect to the date of onset of diabetes. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). So after reviewing all the relevant lay and medical evidence, the Board finds that the weight of this evidence (the most probative of it) indicates he has not experienced continuous symptoms of diabetes mellitus since service, so has not shown the required continuity of symptomatology under 38 C.F.R. § 3.303(b) to establish the required nexus between this claimed condition and his military service by way of this alternative means (again, even assuming this option was available). The Board also finds that the weight of the lay and medical evidence is against the claim. The Board considers it significant that no VA examiner or other health care provider has indicated diabetes mellitus originated during the Veteran's verified period of active duty in the mid 1960s or is otherwise related to that service. The Board recognizes that the Veteran, himself, has asserted that diabetes mellitus was caused by herbicide exposure in service and that, in some cases, such lay evidence is competent and credible on the issues of diagnosis and etiology. Jandreau, supra. Diabetes mellitus, however, is a medically complex condition that is not readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Barr, 21 Vet. App. at 307; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). As the preponderance of the evidence is against the claim for service connection for diabetes mellitus, the benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs