Citation Nr: 1324404	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  09-49 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for Type II diabetes mellitus, to include as due to exposure to Agent Orange in service.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant and a friend.


ATTORNEY FOR THE BOARD

A. Hinton, Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to December 1967, with subsequent membership in the U.S. Army Reserve.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the benefit sought.   

In October 2012 the Board remanded the case for further development.


FINDINGS OF FACT

1.  The Veteran did not serve in the Republic of Vietnam during the Vietnam era; and the evidence does not show that he was exposed to Agent Orange or other tactical herbicide agents during his active military service.

2.  The Veteran's Type II diabetes mellitus is not related to service and there is no evidence of compensable Type II diabetes mellitus within one year of service separation.


CONCLUSION OF LAW

The criteria for service connection for Type II diabetes mellitus are not met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran claims service connection for Type II diabetes mellitus primarily on the basis that the disability was due to exposure to herbicides/Agent Orange in service. 

Duties to Notify and Assist

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).
 
Letters dated in March 2008 and October 2012 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim).

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (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.  

Here, during the Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate service connection.  The Veteran was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to ascertain what, if any, in-service event or injury caused or is related to the Veteran's current disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status or is not available.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The Veteran has not been provided notice of the amendment to 38 C.F.R. § 3.307 which added (a)(6)(iv) effective February 24, 2011.  However, the Board finds that the Veteran will not be prejudiced by this lack of notice because the new regulation is liberalizing and not restrictive.  Therefore, the Board finds that a remand to provide this notice is not required.  

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's service treatment records and private treatment records have been obtained.  He did not identify any private/VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

The Board also remanded the appeal in October 2012 to attempt to verify the Veteran's claim as to herbicide exposure, in accordance with VA's Adjudication Procedural Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section C, para. 1.  The Board finds that the RO's actions substantially complied with the Board's remand directions by taking all steps required by the M21-1MR to verify the Veteran's alleged herbicide exposure.  Id.  

VA did not afford the Veteran an examination of his claimed Type II diabetes mellitus or obtain an etiological opinion.  Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 

In this case, the Veteran's diabetes was first shown almost 31 years after service and there is no competent evidence to show that the Veteran has Type II diabetes mellitus that is related to his service or that the Veteran was exposed to Agent Orange.  As such, the evidence of record does not indicate that the claimed disability may be associated with an established event, injury, or disease in service or with another service-connected disability.  Therefore, the standards requiring examination under McLendon have not been met and an examination is not necessary under 38 C.F.R. § 3.159(c)(4).   McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); See also 38 C.F.R. § 3.159(c)(4) (2009); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). 


There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).   

Applicable Law

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304.  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a).
 
Some chronic diseases, including endocrinopathies to specifically include Type II diabetes mellitus, are presumed by law and regulation to have been incurred in service if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  

If a veteran was exposed to an herbicide agent during active military service, certain diseases including Type II diabetes mellitus, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  

If a veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea in or near the DMZ between April 1, 1968, and August 31, 1971, then exposure is not presumed; and actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable.  See VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p).  

However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable.

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 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).  

Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).    

Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d).

A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

A layperson is competent to report on the onset and continuity of current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  

Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).   

VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C.A. § 5107(b). 

Facts and Analysis

In his February 2008 application for benefits claiming service connection for Type II diabetes mellitus, the Veteran reported he was exposed to Agent Orange while stationed in Korea from 1965 to 1966.  He reported that while there he was sprayed many times and the mist drifted into their living area.  In his application he also reported that he had had service in Oakland, California and Fort Ord, California, and that he did not serve in Vietnam.  In his application he reported that his Type II diabetes mellitus began in February 2003, and at that time he was treated at the Providence Medical Center.

In a statement submitted in May 2009 the Veteran reported that while he was stationed in Korea he was exposed to Agent Orange, which was sprayed as his platoon went out to stay in the field for four or five days.  

During a September 2011 Travel Board hearing before the undersigned Veterans Law Judge, the Veteran testified that after he got back from Korea, he was stationed at Fort Ord for the last two years of service in the Army.  He testified that after that period of active service he was in the Army Reserves in Guam; and while in the Reserves he had active duties at Anderson Air Force Base-once a month on weekends, and two weeks a year, on active duty drills.  

He testified that he was exposed to spraying of herbicides/Agent Orange while he was stationed at Fort Ord, California by being in the vicinity.  He testified that he was exposed at Anderson Air Force Base in Guam while he was participating in active duty drills in the field camping.  He also testified that he was not sure if he was exposed to herbicides, but there were herbicides stored in the camps.

When contacted by VA in December 2012 to obtain more information on any exposures, the Veteran stated he was exposed while at Fort Ord, California or Anderson Air force Base in Guam.  He stated he could not narrow down the time frame of exposure, and stated that he was not sure when or how he was exposed.

The Veteran's service personnel records show that he served in Korea from June 1965 to June 1966 as part of Battery C, 1st Battalion, 79th Artillery.  Service personnel records indicate that the Veteran served between July 1966 and November 1966 with the 4th Battalion, 41st Infantry, at Fort Ord, California.  Army Reserves treatment records indicate that the Veteran was in the U.S. Army Reserves in the 411th Engineer Battalion and that he was located at Anderson Air Force Base in Guam between November 1978 and July 1979. 

Following procedures of VA's Adjudication Procedure Manual, M21-1MR, the RO received responses from Compensation and Pension (C&P) Service (via e-mail from VAVBAWAS/CO/211/AGENTORANGE) in August 2008, and later from the U.S. Army and Joint Services Records Research Center (USASCRUR) in October 2008.  They concluded in effect that the histories of the Veteran's unit, Battery C, 1st Battalion, 79th Artillery,  did not document or mention Agent Orange or that the unit was in the vicinity of any herbicide spray operations, and stated generally that herbicides were used in Korea only between 1967 and 1969.  

In August 2011 the Veteran submitted a copy of a letter from the Department of the Army, dated in December 1980, which noted that the Pest Control Shop at Fort Ord had monthly records dating back to January 1973 of all herbicides used on that installation, and also noted that "2-4-5 T and 2-4 D usage is included in these records."

In October 2012 the Board remanded the case for the RO to follow all mandated provisions of the M21-1MR manual provisions for verifying exposure to herbicides in locations other than Vietnam or along the Demilitarized Zone in Korea, to attempt to verify the Veteran's asserted exposure to herbicides at Fort Ord, California and in Guam.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(n); Patton v. West, 12 Vet. App. 272, 282  (1999).

In a memorandum dated in February 2013, the C&P Service (via an e-mail from VAVBAWAS/CO/211/AGENTORANGE) stated the following.  They had reviewed a list of tactical herbicide use, testing, and storage sites outside of Vietnam and the Korean DMZ provided by the Department of Defense (DoD).  The list contained sites in the U.S. and in foreign countries associated with Agent Orange and other tactical herbicides that are covered by VA regulations at 38 C.F.R. § 3.307(a)(6).  Commercial herbicides were in common use on all military bases worldwide, and these were not the herbicides covered by the regulations describing tactical herbicides used for strategic purposes during the Vietnam Era.

Regarding the Veteran's claim, the memorandum stated that the DoD list did not show any use, or testing of tactical herbicides, such as Agent Orange, at any location on Fort Ord, California, or Anderson Air Force Base, Guam during the Vietnam Era.  There were no documents indicating herbicides were used on Guam.  

The letter noted that in general, tactical herbicides were developed for Vietnam and used there, along with limited use on the Korean DMZ; and tactical herbicide testing was not conducted at Fort Ord, California or Anderson AFB, Guam.  Also, there was no evidence documenting storage or use of tactical herbicides on the island of Guam during the Vietnam Era.  The memorandum concluded that as a result, Compensation Service could provide no evidence to support the claimed exposure.

In an April 2013 letter, the Director, Armed Forces Pest Management Board, DoD, stated the following.  DoD did not maintain historical records of routine pesticide/herbicide applications to DoD installations, but that research clearly indicated that a commercially produced herbicide, of TORDON herbicide formulations, was being used at Fort Ord during the mid-1960s, beginning in 1965, for a poison oak control program.  There were no documents other than this addressing herbicide use, storage, transport, or exposure at either Fort Ord or Anderson AFB.

A statement received from the U.S. Army in June 2013 shows that research by the National Archives and Records Administration (NARA) found that U.S. Army historical records available did not document spraying, testing, transporting, storage, or usage of Agent Orange at Fort Ord, California, or at Anderson AFB, Guam.  NARA concluded that they were unable to verify or document that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed at Fort Ord or at Anderson AFB.  Although the document contains a 1979 date, the Board notes that the Veteran is not prejudiced in this regard.  The response clearly contemplates the 1967 timeframe, wherein the Veteran served on active duty. 

The record does not reflect, and the Veteran has not asserted, that he had any service in the Republic of Vietnam during the Vietnam Era.  Thus the Veteran's claim of service connection cannot rely on the presumption of exposure to herbicides based on service in Vietnam.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309.  The Veteran does assert that he was exposed to herbicides/Agent Orange during service as discussed above, during active service in Korea and at Fort Ord, California, and during active duty drills at Anderson Air Force Base in Guam.  

Since the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order to apply the presumption of service connection for a herbicide-related disease under 38 C.F.R. § 3.309(e).  

However, based on the findings discussed above, resulting from actions conducted by the RO pursuant to M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p), there is insufficient evidence to support a finding of actual exposure to herbicides in service.  Under provisions of M21-1MR, Part IV, the Veteran's lay statements and testimony alone cannot be used to confirm herbicide exposure.  

Although the Veteran is competent to attest to having been exposed to a mist or spraying, he is not competent to attest that such mist was caused by Agent Orange.  He has not asserted knowledge of a source of any mist or spray being Agent Orange, such as by being told, or reading the name of a chemical on a container.  He has made no such claim.  Additionally, the Board finds more competent and credible the negative findings provided by the governmental organizations discussed above tasked with obtaining such information regarding the use of Agent Orange at military facilities outside of Vietnam.  

As such, the Board finds the evidence is insufficient to demonstrate the Veteran's exposure to herbicides during his military service.  The Veteran is therefore not entitled to service connection for Type II diabetes mellitus on a presumptive basis as discussed in 38 C.F.R. § 3.309(e). 

This does not preclude the Veteran from establishing entitlement to service connection for Type II diabetes mellitus with proof of actual direct causation of Type II diabetes mellitus linked to service.  Combee, 34 F.3d at 1043.  The Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure.  McCartt v. West, 12 Vet. App. 164, 167 (1999).

The Veteran does not assert that he experienced symptoms of diabetes during service.  In his February 2008 application he reported that his Type II diabetes mellitus began long after service, in February 2003.  The Veteran's service treatment records include no indication of complaints of, treatment for or diagnoses of diabetes in service, or within the one year presumptive period following his separation from service in December 1967.  See 38 C.F.R. § 3.309(a).  The Veteran's November 1967 separation examination reports of medical history and medical examination were negative for any history or findings referable to Type II diabetes mellitus.  Thus, Type II diabetes mellitus was not affirmatively shown to have had onset in service, and service connection under 38 C.F.R. § 3.303(a) is not established.  

In his February 2008 application he reported that his Type II diabetes mellitus began in February 2003.  Private medical records reflect that the first diagnosis of diabetes shown on file is in November 1998, almost 31 years following his separation from service.  The absence of medical treatment for the claimed condition for many years after service is strong evidence against the claim.  Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000).  

Further, Type II diabetes mellitus is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology, need to be addressed, but as Type II diabetes mellitus was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   

The Veteran asserts that his Type II diabetes mellitus was caused by service including exposure to herbicides.  However, the Board finds that the diagnosis of Type II diabetes mellitus may not be made by a lay person because special medical training is required to diagnose it.  See Davidson, infra.  Therefore, the Board finds that the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  Id.  Since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that the Veteran's opinion that his Type II diabetes mellitus was caused by service is not competent evidence. Jandreau. 

Based on the foregoing, the Board finds that the record is negative for a competent and credible medical evidence finding a causal link between the Veteran's current Type II diabetes mellitus and an established injury, disease, or event of service origin including his claimed herbicide exposure.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d).  Therefore, the Board finds that service connection for Type II diabetes mellitus is not warranted based on the initial finding of the disability after service.

As there is no competent lay evidence on the material issue of whether there is a nexus to service, and there is no medical evidence in favor of the claim, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).  
 

ORDER

Service connection for Type II diabetes mellitus is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs