Citation Nr: 1323473 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 05-03 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Michael R. Viterna, Esq. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2009 and April 2010, the Board remanded the claim for further development and adjudication. The matter has been returned to the Board and is ready for appellate disposition. FINDINGS OF FACT 1. The Veteran is not shown to have served in the Republic of Vietnam. 2. The Veteran is not shown to have been exposed to herbicides while stationed in Thailand from April 1971 to March 1972. 3. The Veteran is not shown to have manifested diabetes in service or for many years thereafter; diabetes is not shown to be due to a documented injury or other event of the Veteran's active military service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, has not been met. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in September 2003. This letter notified the Veteran of the evidence necessary to satisfy the underlying claim for service connection. While a June 2009 first letter notified the Veteran of the evidence necessary to reopen his previously denied claim (i.e. new and material evidence), there is no prejudice to the Veteran as the Board determined that new and material evidence was submitted to reopen the claim in April 2010. The Board then remanded the claim for service connection for diabetes mellitus under a merits analysis for further development (to include additional notice) and adjudication. The matter was most recently readjudicated in a January 2013 supplemental statement of the case (SSOC). VA has obtained service treatment and personnel records, assisted the Veteran in obtaining evidence, provided the Veteran a VA examination, and afforded the Veteran the opportunity to give testimony before the Board, which he declined. In October 2012, the Veteran submitted authorization and consent forms to obtain evidence of treatment for diabetes; however, these records from the VA providers have already been associated with the claims folders and are contained within outpatient treatment records from VA Medical Centers in Lansing, Miami, Ann Arbor, and Battle Creek dated between 2000 and 2013. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which contains VA outpatient treatment records dated between 2000 and 2013 reviewed by the RO in the January 2013 SSOC. 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 Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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). The Veteran asserts that he is entitled to service connection for diabetes mellitus. Specifically, he contends that he was exposed to herbicides, namely Agent Orange. The Veteran maintains that he was stationed in Thailand at the Nakhon Phanom Royal Thai Air Force Base (RTAFB). He further asserts that he lived, worked, and participated in the intramural sports program at the base, which exposed him to herbicides used to eliminate vegetation. See letter from the Veteran's attorney dated in February 2013. After careful consideration of all procurable and assembled data, the Board finds that service connection for diabetes is not warranted on either a direct or presumptive basis. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some 'chronic diseases,' such diabetes mellitus, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). Diseases associated with such exposure include diabetes. 38 C.F.R. § 3.309(e). This shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). "Service in the Republic of Vietnam" includes service in the waters offshore and 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). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, there is no evidence the Veteran served in the Republic of Vietnam nor does he argue such service. In September 2003, the National Personnel Records Center (NPRC) indicated that they were unable to determine whether or not the Veteran had in-country service in the Republic of Vietnam. A review of the Veteran's service personnel records does not show the Veteran served in the Republic of Vietnam. The Board is aware that the Veteran is in receipt of the Vietnam Service Medal. However, the Veteran served in Thailand from April 1971 to March 1972 and according to VBA Fast Letter 09-20 (May 6, 2009), Thailand was a staging area for aircraft missions over Vietnam, and many veterans who assisted with these missions received the Vietnam Service Medal for their support of the war effort. Therefore, not having served in the Republic of Vietnam, the Veteran is not presumed to have been exposed during his period of service to an herbicide agent in Vietnam. 38 U.S.C.A. § 1116(f). The Veteran instead contends that he was exposed to herbicides while stationed in Thailand at the Nakhon Phanom RTAFB. Specifically, he alleges that he lived, worked, and participated in the intramural sports program at the base, which exposed him to herbicides used to eliminate vegetation. The Veteran's service personnel records do show he was in Thailand from April 1971 to March 1972. When developing herbicide-related disability claims from Veterans with Thailand service during the Vietnam era, Regional Offices will no longer send inquiries to the Agent Orange Mailbox. Instead, a copy of a Memorandum for the Record will be placed in the Veteran's file. See VBA Fast Letter 09-20 (May 6, 2009). This response document contains input from DOD and is intended to cover general claims of exposure as well as a number of specific exposure claims. If the herbicide exposure issue can be resolved based on this document, then no further development action is necessary. Id. The Memorandum for Record, included in the Veteran's claims file, shows that limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, near the Pranburi Military Reservation. The Memorandum further shows that tactical herbicides, such as Agent Orange were not used or stored in Thailand. There are no records of tactical herbicide spraying by Ranch Hand or Army Chemical Corps aircraft in Thailand after 1964. There was sporadic use of non-tactical or commercial herbicides used within the base, on small-scale brush or weed clearing activity along the flight line or around living quarters in Thailand. However, these were not tactical herbicides and only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of Base Civil Engineer were used. The Veteran's herbicide exposure claim can be resolved based on this Memorandum. First and foremost, the Veteran was in Thailand from April 1971 to March 1972, seven years after there was limited testing of tactical herbicides near the Pranburi Military Reservation (note: the Veteran was at Nakhon Phanom RTAFB). Next, the herbicides used to defoliate near the flight-line and living quarters in Thailand, were not tactical herbicides, but commercial grade approved by the Armed Forces Pest Control Board and sprayed under the control of Base Civil Engineer. Therefore, the Veteran is not presumed to have been exposed during his service in Thailand. Id. Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, on this record, the Board shall proceed with determining entitlement to service connection on a direct causation basis. Diabetes mellitus is a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is warranted. Where a combination of manifestations sufficient to identify a 'chronic disease' in service, and establish chronicity at the time are present, any later manifestation of the same 'chronic disease' is subject to service connection unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran's service treatment records are wholly devoid of treatment, complaints, or diagnoses of diabetes. The records do show 4+ sugar in his urine upon the August 1967 enlistment examination; however, the second urinalysis was negative for sugar. In April 1968, urinalysis tests were as follows: positive for trace sugar and 3+. The post-prandial blood sugar in April 1968 was 120 mg dl. In April 1970, urinalysis was negative for sugar. The October 1971 separation examination was negative for both diabetes and sugar in the urine. The provider noted that sugar was found in the urine during enlistment physical, but that all of the urinalysis was normal thereafter. To the extent that the Veteran may be asserting that he had continued or ongoing problems with his blood sugar since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology following service. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Notably, post-service, VA outpatient and hospitalization treatment records dated between 1972 and 1990 were negative for diabetes or sugar in the urine. Private treatment records dated in 1985 were similarly negative. VA aid and attendance examination dated in February 1999 was also negative for diabetes. VA outpatient treatment records dated in January 2000 indicate the Veteran claimed he had diabetes, but he was not on medication or insulin. A March 2000 entry noted a history of diabetes mellitus, but again there was no evidence in the record. The first objective evidence of the Veteran having been diagnosed with diabetes is in March 2007, some 35 years after service, and clearly outside the one-year presumptive period for diabetes. 38 C.F.R. §§ 3.307, 3.309. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). This absence of evidence of complaints or treatment of diabetes until 2007 constitutes negative evidence against the claim because it tends to disprove that diabetes was the result of the Veteran's active service. Id. As diabetes was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disability to service. Here, there is no such competent evidence that establishes a relationship to an identified injury or other incident of service. The August 2010 VA examiner opined diabetes was not caused by or a result of glucosuria during active service. The examiner reasoned that glucosuria was not a precursor of diabetes and was not used as a screening test for diabetes. Glucosuria could occur with defects in renal tubular function, familial renal glucosuria, and genetic disorders. The examiner noted predictors of diabetes mellitus were impaired fasting glucose and glucose tolerance. The examiner noted positive urine sugar in service in 1967 and 1968, but that it was negative in 1970 and 1971. The Veteran's two hour post-prandial blood sugar in April 1968 was 120 mg dl and the criteria for diagnosis of diabetes is random blood glucose of 200 or greater and fasting plasma glucose of 126 or greater. The Veteran did not meet the criteria for diabetes. As outlined above, the competent medical evidence of record concludes that diabetes mellitus is not related to glucosuria in service. The 'chronic disease' was not present to a degree capable of identifying the disease entity during service. No symptoms related to diabetes mellitus have been identified in the post-service medical record for continuity of symptomatology. The Board concludes that service connection for diabetes mellitus is not warranted under 38 C.F.R. § 3.303(b). In sum, the preponderance of the evidence is against the claim and the appeal involving service connection must therefore be denied. 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 diabetes mellitus, to include as due to herbicide exposure, is denied ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs