Citation Nr: 1326201 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-04 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1955 and from October 1956 to October 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran and his wife testified at a hearing before the Board in November 2011. A transcript of the hearing testimony is associated with the claims file. In February 2012 the Board reopened the Veteran's previously denied claim for service connection for diabetes mellitus. The Board remanded the issue of entitlement to service connection for diabetes mellitus in February 2012 and January 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not serve in Vietnam during the Vietnam era. 2. The Veteran was not exposed to herbicides while stationed in Thailand or Guam. 3. The Veteran's diabetes mellitus did not have its onset in active military service, did not manifest to a compensable degree within one year of service separation, and has not otherwise been shown to be related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In May 2007, prior to the November 2007 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's service treatment records, service personnel records, and private medical records have been obtained. As described below, research has been conducted to determine whether the Veteran was exposed to a tactical herbicide during service. The Veteran and his spouse have provided testimony at a Board hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. With respect to a November 2011 Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above 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 November 2011 hearing, the Veterans Law Judge enumerated the issue on appeal. Information was obtained regarding onset of the Veteran's claimed disability and any causal link between the claimed disability and his active service. During the hearing, the Veteran provided testimony that he was exposed to Agent Orange during active service, thus demonstrating that he has actual knowledge of the information and evidence required to substantiate his claim. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, the discussion during the hearing did not reveal any evidence that might be available that had not been submitted or sought. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). VA has also substantially complied with the Board's remand orders. The Joint Services Records Research Agency (JSRRC), and the Air Force Historical Research Agency (AFHRA) were contacted in order to verify the use of herbicides as alleged during the Veteran's service in Guam and Thailand. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. II. Law and Regulations Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, a veteran who, during active military, naval, or air service, 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 a veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. Under VA law, the diseases that are deemed associated with herbicide agent exposure include diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. See the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). III. History and Analysis The service treatment records do not reveal any findings related to diabetes mellitus and the Veteran's July 1973 discharge examination report notes "negative sugar." The Veteran first submitted a claim for service connection for diabetes mellitus in April 2002. On his claim form the Veteran reported that his diabetes mellitus began in 1997. A June 1996 private medical record contains the earliest medical record showing diagnoses of diabetes mellitus. At his November 2011 hearing, the Veteran reported that he was first diagnosed with diabetes in 1988. The Veteran does not claim that he developed diabetes mellitus during service or within a year of discharge from service. The record indicates that the Veteran first developed diabetes mellitus many years after discharge from service. Consequently the Veteran is not entitled to service connection for diabetes mellitus on a presumptive basis for a chronic disease which developed within a year of discharge from service. See 38 C.F.R. § 3.307, 3.309(a). Although all veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, the Veteran's service personnel records do not show that he served in Vietnam. Furthermore the Veteran does not claim that he served in Vietnam. Instead, the Veteran claims exposure to herbicides while stationed at Andersen Air Force Base in Guam and at the Takhli Air Force Base in Thailand. The Veteran's service personnel records show that the Veteran served in Guam from March 1966 to September 1966, and that he was stationed at the Takhli Air Force Base (AFB) in Thailand from May 1968 to June 1969. In a May 2007 letter, the Veteran's private physician noted that the Veteran thought he was exposed to Agent Orange while serving on Guam and in Thailand. The physician stated that she could not confirm such exposure. In a July 2008 letter the private physician stated that there was no history of diabetes mellitus in the Veteran's family, and she opined that the Veteran developed diabetes mellitus secondary to his exposure to Agent Orange while in military service. At his November 2011 hearing the Veteran reported that he was stationed at Andersen Air Force Base in Guam from March 1966 through September 1966. In February 2009, the Veteran submitted an article from the Internet that stated that although the Department of Defense never officially admitted to storing and using Agent Orange and other herbicides on Guam, a Dow Chemical Corporation report has disclosed a huge amount of dioxin contamination at Andersen Air Force Base. Additionally, he submitted a copy of an October 2005 Board decision relating to a different veteran which granted service connection for diabetes mellitus based on that veteran's exposure to herbicides while serving in Guam. In June 2013, a researcher at the Air Force Historical Research Agency (AFHRA) wrote that he had reviewed the official unit histories of the 4133rd Bomb Wing at Andersen AFB, Guam and found no mention of herbicide use at that base. He further stated that he found no mention of any use of tactical herbicides on Guam at anytime during the 1961 through 1975 time period. With regard to the Board decision that granted service connection for diabetes mellitus to a different veteran who served at Andersen AFB in Guam, prior Board decisions have no precedential authority. See 38 C.F.R. § 20.1303 (2012). The Board finds that the most probative evidence, that from the AFHRA, indicates that the Veteran was not exposed to herbicides while stationed on Guam. The Internet article does not provide verification that the Veteran was exposed to herbicides while stationed in Guam. At his November 2011 hearing, the Veteran stated that he was stationed at Takhli AFB in Thailand from May 1968 to June 1969. The Veteran reported that he was near the perimeter fence at Takhli while moving aircraft, launching aircraft, and recovering aircraft. He stated that he saw people spraying herbicides around the perimeter fence. He stated that while on the flight line he had to routinely go out to the fence to perform his duties. The Veteran testified that at Takhli he first worked as a crew chief on the flight line and then he worked as a shift chief at the dock. In April 2012, VA submitted the Veteran's information to the Joint Services Records and Research Center (JSSRC) and requested verification that the Veteran had been exposed to herbicides while servicing at Takhli AFB. In May 2012 the JSSRC stated that their research did not show that the Veteran, or personnel assigned to the 42nd TEWS or 355 TFW, were exposed to Agent Orange or tactical herbicides while serving at Takhli AFB, Thailand. In March 2013, VA submitted the Veteran's information regarding his service in Thailand to the Air Force Historical Research Agency (AFHRA). In June 2013, an AFHRA researcher stated that from a careful review of the official unit histories of Takhli it appeared that no herbicides were used at Takhli AFB until the April through June 1969 time period, at which time the Veteran was also present at Takhli. However, he went on to state that the herbicides were used at the base of guard towers along the base perimeter, at the ammo dump, and around runway overrun lights, all areas in which a jet engine mechanic would not be present, since his work area would be at the jet engine shop or the flight line. The AFHRA researcher opined that the Veteran was not exposed to herbicides while at Takhli. The Board further notes that at his hearing, the Veteran specifically stated that he went to the sprayed areas while working the flight line. He went on to state that he worked at the dock when he was a shift chief. The Veteran's service personnel records show that the Veteran was a shift chief from September 1968 to June 1969. This indicates that during the period that the AFHRA documented herbicide spraying at Takhli, from April through June 1969, the Veteran was working inside and not working out on the flight line. Although the Veteran has asserted that he was exposed to herbicides while serving in Takhli, when his own testimony is compared with the historical records, the evidence indicates that the Veteran was not exposed to herbicides while serving at Takhli AFB. Consequently the Board finds that the Veteran's statements and testimony that he was exposed to herbicides during service are of little probative value. The most probative evidence is that obtained from researching the official historical records. As noted above, in May 2012 the JSRRC stated that the records did not indicate that the Veteran was exposed to herbicides while in Thailand, and in June 2013 the AFHRA researcher opined that the Veteran was not exposed to herbicides while stationed in Thailand. The Board does not find the July 2008 private physician's opinion that the Veteran developed diabetes mellitus secondary to his exposure to Agent Orange while in military service to be of any probative value. Her opinion is based on the premise that the Veteran was exposed to herbicides during his military service. As shown above, the Board has determined that the evidence clearly shows that the Veteran was not exposed to herbicides during his military service. Also weighing against the private physician's opinion is her prior statement in May 2007 that she was unable to confirm whether the Veteran was exposed to herbicides during his service. Accordingly, the Board considers the July 2008 private physician's letter to be of no probative value here. See Reonal v. Brown, 5 Vet. App. 458 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record). In this case the preponderance of the evidence shows that the Veteran was not exposed to herbicides while in service and there is no evidence that the Veteran developed diabetes mellitus due to any other aspect of service. Accordingly, service connection for diabetes mellitus is denied. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs