Citation Nr: 1321016 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-07 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection to diabetes mellitus, type II, to include as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from August 1968 until August 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board previously considered this appeal in May 2012 and remanded the claim for further development. The RO/AMC completed the requested development, but continued to deny the benefits sought. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the case was properly returned to the Board for appellate review. On his February 2010 Appeals to Board of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before a Member of the Board via videoconference in connection with his claim. This hearing was scheduled for April 23, 2012; however, the Veteran failed to report for that hearing. Because the Veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran did not have service in-country in Vietnam from January 9, 1962, to May 7, 1975, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. 2. Diabetes mellitus was not manifested during service or within one year thereafter; diabetes mellitus is not related to service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by the Veteran's service or within one year of his separation from service and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112. 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In the present case, letters sent to the Veteran in February 2009, March 2009, September 2009, November 2009, February 2010, May 2010, March 2011, June 2011, June 2012 and August 2012 fully addressed all notice elements required by Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim which includes assisting the Veteran 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. Here, the record includes the Veteran's service treatment records, service personnel records, the command history of the U.S.S. Hepburn, responses from the National Archives and Records Administration (NARA) concerning the U.S.S. Bronstein, responses from the National Personnel Records Center (NPRC) and Defense Personnel Records Information Retrieval System (DPRIS), VA outpatient treatment records, lay statements and the report of a VA examination. The Board notes that in his February 2010 Substantive Appeal, the Veteran referred to letters he had sent to his mother during his service. In March 2011, the RO requested the Veteran submit these letters; however, the Veteran did not respond. It has been held in this regard that "[t]he duty to assist is not always a one-way street. If a Veteran wishes 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." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, a remand to obtain this evidence is not necessary. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The Veteran and his representative have not identified any other outstanding evidence which has yet to be obtained. Accordingly, the Board finds that all necessary development has been accomplished and no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claims. 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). Law and Analysis The Veteran seeks service connection for diabetes mellitus and argues that his current disability is related to exposure to herbicides during service. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as diabetes mellitus. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). "Service in the Republic of Vietnam" means actual service in-country in 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 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. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides, unless the Veteran served as a coxswain aboard ship and reports going ashore during anchorage. See Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii.1.H.28.h. When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, 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). To be service connected under this presumption, the diabetes mellitus, type II, shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Presumptive Service Connection In the present case, the Veteran clearly has a current diagnosis of diabetes mellitus, type II, one of the diseases presumed to be linked to herbicides. As such, the relevant question is whether he had actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, service in the waters offshore involving duty or visitation in the Republic of Vietnam, or service in the inland waters of Vietnam. In this regard, the Veteran has argued that he served in Vietnam. He explained in a September 2009 statement that each unit had a supply representative and reported that he was the representative for the U.S.S. Bronstein. In this position he would go back and forth from Da Nang to the ship delivering supplies, including food, mail, machines, replacement parts, and medical supplies. In the September 2009 statement the Veteran further argued he performed "brown water" patrols in the Long Tau River leading toward Nha Be and Saigon. He indicated he was in country in Vietnam for at least 6 months, possibly from November 1969 until March 1970. On the February 2010 VA 9, the Veteran indicated that he reviewed letters he sent to his mother and based on those letters he believed the more accurate dates of his service in Vietnam were February to July 1971. The Veteran's Form DD-214 demonstrates that the Veteran served in the United States Navy from August 1968 until August 1972. This form noted his military occupational specialty was in radio mechanics and indicated he received the Vietnam Service Medal. A notation on the DD 214 indicated "served in Vietnam on or after 5 August 1964." Service personnel records reflect the Veteran reported to the U.S.S. Hepburn on June 30, 1969. He served aboard the U.S.S. Hepburn from June 1969 until October 1969. He was transferred to the U.S.S. Bronstein and reported to the U.S.S. Bronstein on November 21, 1969. He served on the U.S.S. Bronstein until his separation in 1972. The RO requested the deck logs of the U.S.S. Bronstein to verify the Veteran's claimed service and received a December 2009 response from the Chief of Archives that the ship's deck logs do not provide information placing individuals aboard the ship nor indicate the names of individual that departed the ship and may have set foot in Vietnam. The Chief of Archives explained deck logs would not include the types of cargo the ship carried, but rather provided information concerning the ship's movement and operations. A March 2010 response from NARA noted that they were not able to locate the references requested concerning the U.S.S. Bronstein receiving supplies from Da Nang from November 1969 until January 1970. The Archives specialist indicated the deck logs of the ship were reviewed and at the beginning of November the U.S.S. Bronstein was transiting from Japan to Long Beach and remained at Long Beach through January 1970. A June 2010 response from NARA indicated that after a detailed search, the ship went from Pearl Harbor, to Long Beach, California in February 1971, and returned to Pearl Harbor in March before steaming on to Subic Bay, Philippines. In April 1971 the ship went to Singapore into the Indian Ocean but did not stop in Vietnam. In May 1971 the ship went from Singapore to Hong Kong but did not stop in Vietnam, before steaming onto Japan and returning to Long Beach in June. A response from the NPRC indicated they were unable to determine whether or not the Veteran served in the republic of Vietnam. The response confirmed he served aboard the U.S.S. Bronstein and noted that the ship was in the official waters of Vietnam from April 3, 1971, until April 6, 1971, from April 13, 1971, until May 1, 1971, from April 18, 1971, until April 25, 1971, from May 1, 1971, until May 5, 1971 and May 12, 1971 until May 15, 1971; however, there was no conclusive proof of in-country service. A January 2010 Compensation and Pension Bulletin listed information regarding vessels identified as traveling in the "brown waters" of Vietnam. Neither of the Veteran's ships were among those listed. Another response from DPRIS noted that the 1971 command history for the U.S.S. Bronstein was reviewed and reflected she left Long Beach in January 1971 for Pearl Harbor. After training in Hawaii, the ship returned to Long Beach in February 1971 for dry-dock grooming. The ship left Long Beach in March 1971 for a tour of Western Pacific deployment and left Hawaii in March 1971 for Subic Bay, Philippines and in the interim participated in antisubmarine warfare training exercises and special surveillance operations in the Gulf of Tonkin. The ship departed Subic Bay in April 1971 for Singapore, then went to Hong Kong, and then to Japan. She returned to Gulf of Tonkin for barrier patrol operations in May 1971 before returning to Japan. In May, the ship had exercises with the Japanese navy in the Sea of Japan. She had overhaul of sonar components at Sasebo, Japan. The U.S.S. Bronstein returned to Long Beach in July 1971 after training exercises in northern pacific waters. The history did not document the ship docked, transited inland waterways, or that personnel stepped foot in Vietnam. The incident described by the Veteran was not recorded. The deck logs were also reviewed and concurred with the 1971 ship's history. The incident described by the Veteran was not recorded and the deck logs did not document the ship docked, transited inland waterways, or that personnel stepped foot in the republic of Vietnam. The ship was not in Vietnamese waters for a long period. The response indicated information concerning duties and assignments requiring the Veteran to go ashore may be in the official military personnel file and should also be copies of temporary duty orders authorizing him to travel ashore to Vietnam with dates and locations. In May 2012, the Board remanded the claim and specifically requested the RO search for temporary duty orders and the command history of the U.S.S. Hepburn. The complete service personnel record was received and includes enlistment documents, orders, on-ship trainings and health screenings completed, records of transfers, performance records, recommendations for advancement, clearance documents and other personnel records. The personnel file did not include any temporary duty orders that authorized travel to Vietnam. A June 2012 response from NPRC indicated there was no record of exposure to herbicides. The command history from the U.S.S. Hepburn revealed that the ship was located in Long Beach, California, San Francisco, California, Bremerton, Washington, Seattle, Washington and Vancouver, British Columbia during 1969. The first Western Pacific deployment was from January to June 1971. The second deployment to the Western Pacific was from May to December 1972. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429, 433 (1995)(noting it is the responsibility of the Board to assess the credibility and weight to be given to evidence); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In the present case, the weight of the evidence is against a finding that the Veteran set foot in Vietnam, or served on an inland waterway. The Veteran has never alleged, and the records do not support, that the U.S.S. Hepburn served in Vietnam or its waterways during the time the Veteran was stationed aboard it. Rather, as noted above, during the period from June until October 1969, the U.S.S. Hepburn was located off the coast of California, Washington, and British Columbia. Concerning the Veteran's service aboard the U.S.S. Bronstein, the Veteran has reported that he traveled to Da Nang while he was a supply representative. The Veteran is competent to describe things of which he has personal knowledge, such as his duties during service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (recognizing that lay testimony is "competent" if it discusses matters that the witness has actually observed or sensed and is within his "personal knowledge"). The Board, however, does not find this description of duties to be credible. Significantly, the Form DD 214 noted the military occupational specialty was radio mechanic and not a specialty involved in supply management. Even assuming he was assigned and performed supply duties, the record does not support that the Veteran ever stepped foot in Vietnam as the service personnel records did not include any temporary duty orders or other indication suggesting such travel. As outlined above, the U.S.S. Bronstein was in the official waters of Vietnam during brief periods in April 1971 and May 1971. The Board finds the ship's official command history and deck logs to be particularly probative as to the location of the ship. See 38 C.F.R. § 3.203(a) (explaining that is issued by service department requires no verification and may be accepted as evidence of service); see also Fed. R. Evid. 902 (domestic public documents that bear the seal of the United States or a department, agency or officer of the United States are self-authenticating). The DPRIS review of the ship's command history and deck logs did not document that personnel stepped foot in the Republic of Vietnam. The June 2012 response of NPRC likewise indicated there was no record of exposure to herbicides. Concerning the Veteran's contention that the ship traveled in "brown waters" in the Long Tau River leading toward Nha Be and Saigon, there is nothing in the ship's history that supports this statement. As noted above, the U.S.S. Bronstein was in the official waters of Vietnam during brief periods in April 1971 and May 1971. The DPRIS review of the ship's command history did not document the ship transiting inland waterways. Furthermore, the ship was not listed on the January 2010 Compensation and Pension Bulletin listing vessels identified as traveling in the "brown waters" of Vietnam. The Veteran also argued that the fact his Form DD 214 noted that he "served in Vietnam on or after 5 August 1964" established service in Vietnam. Although the Veteran's DD Form 214 indicates that he served "in Vietnam," it does not establish that he stepped foot on Vietnam soil. As explained above, the weight of the evidence indicates that the Veteran did not serve in country. Finally, the Board notes that the Veteran was awarded the Vietnam Service Medal (VSM). As the Federal Circuit noted, however, the VSM was awarded to a broader class of service members than those who served on the landmass of Vietnam. Haas, 525 F.3d at 1188 (citing Exec. Order No. 11231 (July 8, 1965). Thus, the receipt of that decoration, alone, does not show that he had actual in-country service in Vietnam. In sum, the Veteran's sole exposure to Vietnam was in the waters offshore of Vietnam during April and May 1971. As noted above, the Federal Circuit has clearly held that VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of duty in order to be entitled to a presumption of herbicide exposure and service connection for diseases associated with that exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). Haas, 525 F.3d at 1193-95. Accordingly, despite the Veteran's contentions regarding his alleged exposure to herbicide agents in service, he may not be presumed to have been exposed to herbicide agents as a result of his service, and is therefore not entitled to service connection for diabetes mellitus on a presumptive basis. Direct Service Connection 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 another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board will adjudicate the claims on a theory of direct entitlement to service connection. In the present case, the Veteran has a current disability of diabetes mellitus, which is an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101. The remaining questions are whether there is evidence of an inservice occurrence of an injury or disease and competent evidence of a nexus between the current disability and the inservice disease or injury. The Veteran has not contended and the record does not establish that the Veteran served in combat and the provisions of 38 U.S.C.A. § 1154 (b) are not for application in this case. The May 1968 preinduction report of medical history included a history of sugar or albumin in the urine. The physician's note explained the urinalysis noted albumin and it was not considered disabling. Upon examination on May 1968, the endocrine system was described as normal and urinalysis was negative for albumin and sugar. Service treatment records fail to reflect complaints, treatment or diagnoses related to diabetes. In fact, the August 1972 examination performed in connection with the Veteran's release from active duty only noted identifying marks and scars and missing and restorable teeth. No defects or diagnoses were reported. An August 1972 note indicated the release from active duty physical examination found the Veteran was physically qualified for release and indicated the urinalysis was negative for sugar/albumin. While the Veteran did not have the requisite service in Vietnam to entitle him to a presumption of exposure to herbicides under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), the Veteran could still be entitled to service connection due to herbicide exposure on a direct basis. To prove service connection on a direct basis for a disease due to herbicide exposure the Veteran needs to show (1) a current disability (2) actual proof of inservice herbicide exposure and (3) a medical nexus linking the current disability to the exposure to herbicides. In this case, although the Veteran has asserted he was exposed to herbicides, he has provided no evidence of actual exposure to herbicides. As explained above, the Veteran is not entitled to a presumption of exposure and he has not established a credible factual foundation for establishing exposure to Agent Orange at any time. Accordingly, there is no evidence of complaints, treatment, a diagnosis, or exposure to herbicides during service. Furthermore, the Veteran has not contended that his diabetes mellitus was diagnosed during service and the evidence does not link the diabetes mellitus to any event in service. As the Veteran has a diagnosis of diabetes mellitus which is one of the listed chronic diseases, the Board carefully considered whether service connection was warranted under 38 C.F.R. § 3.303(b) or on a presumptive basis. As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with diabetes mellitus during service. Furthermore, he did not have characteristic manifestations of the disease process (diabetes) during service and diabetes was not noted during service. In fact, at separation the endocrine system was described as normal and urinalysis was negative for sugar. As such, it cannot be said that the chronic disease (diabetes mellitus) was established and not subject to legitimate question during service. Although the Veteran reported on his February 2010 VA 9 that he treated at VAMC Long Beach within a year of his separation and felt blood tests would have indicated he had diabetes at that point, review of the records fails to demonstrate such findings or reflect the Veteran had diabetes managed by a restricted diet during this time period. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (outlining the criteria for a compensable evaluation for diabetes mellitus). In fact, the Veteran reported he had never been told he had diabetes on a May 1973 VA medical questionnaire. These findings illustrate that the Veteran's diabetes mellitus was not manifested to a compensable degree within one year of his separation from service. Additionally, there is no credible evidence of continuity of symptomatology. In this case, the earliest reference to a diagnosis appears in a December 2010 VA record that noted the Veteran had diabetes and been on metformin since 2003, reflecting a gap of 31 years since service. 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 claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board finds that the evidence of record contradicts the Veteran's assertions of continuous symptoms. For example, at the time of the Veteran's separation in August 1972, no sugar was found in urinalysis and the endocrine system was assessed as normal. As noted above, the Veteran denied a history of diabetes on a May 1973 medical questionnaire. In short, the diabetes was not noted during service and there is no competent and credible evidence demonstrating a continuity of symptomatology. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. Given the evidence of record, service connection for diabetes mellitus must be denied on a direct and on a presumptive basis. There is no medical evidence of a disability during service or within one year of separation from service, no proof of in-country service in Vietnam or the inland waterways, no actual exposure to herbicides, and no evidence linking the currently diagnosed disability to service. As such, the preponderance of the evidence is against the Veteran's claim for service connection. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus is denied. ______________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs