Citation Nr: 1327441 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 05-37 366 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for an upper respiratory disorder, claimed as due to herbicide and/or DDT exposure. 3. Entitlement to service connection for sleep apnea, claimed as due to diabetes mellitus. 4. Entitlement to service connection for erectile dysfunction, claimed as due to diabetes mellitus. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966. This appeal to the Board of Veterans' Appeals (Board) arose from April 2005 and September 2008 rating decisions. In an April 2005 decision, the RO, inter alia, denied the Veteran's claims for service connection for diabetes mellitus and upper respiratory infections (also claimed as cough and shortness of breath). In May 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issue in August 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2005. In September 2007, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In an October 2007 decision, the Board denied service connection for diabetes mellitus, claimed as due to herbicide exposure, as well as service connection for an upper respiratory disability, claimed as due to exposure to DDT. The Veteran appealed the Board's October 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the Court granted a joint motion for remand (JMR) filed by representatives for both parties, vacating the Board's decision, and remanding these claims to the Board for further proceedings consistent with the joint motion. Also, while the Board's decision on other matters was being appealed, in a September 2008 decision, the RO denied, inter alia, the Veteran's claims for service connection for sleep apnea and erectile dysfunction, both claimed as secondary to diabetes mellitus. In September 2008, the Veteran filed an NOD. An SOC was issued in July 2009, and the Veteran filed a substantive appeal in August 2009. In April 2010, the Board remanded the claims on appeal to the RO for further development. In the remand, the Board explained the expansion of the respiratory disability claim to include herbicide and/or DDT exposure (as reflected on the title page), as well as the recognition of the change in representation from a State veteran's service organization to the private attorney listed on the title page. In December 2011, the Board again remanded the claims on appeal to the RO for further development. After accomplishing further action, the RO continued to deny the claims (as reflected in a February 2013 SSOC), and returned these matters to the Board for further appellate consideration. In March 2013, the Veteran and his representative submitted additional argument in support of his appeals. In April 2013, the Veteran's representative requested an additional 90 days for the submission of additional evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals VA treatment records dated through January 2013; the RO considered such documents in the February 2013 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Diabetes mellitus is among the diseases for which VA's Secretary has recognized there exists an etiological relationship with herbicides exposure, to include Agent Orange. 3. Although extensive searches have been conducted, persuasive, objective evidence does not establish that Veteran is entitled to a presumption of Agent Orange exposure o\r was actually exposed to Agent Orange during his period of service, as alleged; in fact, the objective evidence on this point weighs against a finding of actual exposure. 4. Diabetes mellitus is not shown in service or for many years thereafter, and there is no persuasive medical evidence or opinion establishing a relationship between this disability and the Veteran's service. 5. An upper respiratory disorder is not shown in service or for many years thereafter, and there is no persuasive medical evidence or opinion establishing a relationship between any such current disability and the Veteran's service, to include claimed exposure to DDT. 6. As service connection for diabetes mellitus has not been established, there is no legal basis for an award of service connection for sleep apnea and erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, claimed as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for an upper respiratory disorder, claimed as due to herbicide exposure and/or DDT exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for sleep apnea, as secondary to diabetes mellitus, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 4. The criteria for service connection for erectile dysfunction, as secondary to diabetes mellitus, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a December 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection for diabetes mellitus and upper respiratory infection. An October 2007 pre-rating letter also provided notice to the Veteran as regards his claims for service connection for sleep apnea and erectile dysfunction on a direct and secondary basis. These letters provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. These letters meet the VCAA's timing of notice requirement and the content of notice requirements of Pelegrini. Further, a March 2006 letter as well as an October 2007 letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. To the extent the Dingness/Hartman notice pertinent to the diabetes mellitus and upper respiratory claims was provided after the initial adjudication of those claims, the Veteran is not shown to be prejudiced by the timing of this notice. As the Board herein denies each claim for service connection, no disability ratings or effective dates are being, or will be, assigned. Accordingly, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. Moreover, the claims file reflects multiple readjudication of the claims after the March 2006 letter. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, neither the Veteran nor his attorney alleged or demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (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, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service treatment and personnel records, as well as extensive VA and private treatment records. In addition, several responses from Defense Personnel Records Information Retrieval System (DPRIS) regarding the Veteran's purported exposure to herbicides are contained in the claims file, as requested by the Board in its August 2010 and December 2011 remands. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also considered in connection with the appeal is the transcript of the Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf. Specifically as regards the Board hearing, it is noted that, in Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2007 hearing, the undersigned Veterans Law Judge enumerated the issues which were then on appeal, which then included claims for service connection for diabetes and an upper respiratory condition. The Veteran provided testimony regarding his duties in Thailand, including his contention that he was exposed to herbicides and DDT while clearing the jungle and building roads. The undersigned inquired as to whether the Veteran knew of anyone who he had served with in Thailand who could help to support his assertions and whether he had conducted any research as the relationship between his respiratory condition and exposure to DDT. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. The Board finds that no further RO action in connection with any claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection A. Factual Background A February 1963 service entrance examination was negative for any relevant abnormalities and no sugar was found in the Veteran's urine. The Veteran denied having sugar in his urine or shortness of breath in an accompanying Report of Medical History (RMH). An April 1965 chest X-ray was normal. In August 1965, the Veteran complained of itchy pimples on his face and was prescribed Fostex soap. Complaints of a sore throat and a diagnosis of an acute peritonsillar abscess was made in December 1965. A January 1966 service discharge examination was negative for any relevant abnormalities and no sugar was found in the Veteran's urine. The Veteran denied having sugar in his urine or shortness of breath in an accompanying RMH. The Veteran indicated that there was no change in his medical conditions since his last final examination in February 1966. The remaining service treatment records were negative for complaints, treatments, or diagnoses related to diabetes mellitus or an upper respiratory disability. Service personnel records indicate that the Veteran was assigned to the USARPAC (Thailand) from September 1964 to August 1965 and that he served with the 809th Engineering Battalion. Special Orders dated in September 1964 indicated that the Veteran was to be aboard a specific Pan-American Airline flight to Bangkok, Thailand in September 1964. A Travel Claim indicated that the Veteran departed Bangkok, Thailand via "government air" at 1100 and that he arrived at Travis Air Force Base (AFB) at 2330 in September 1965; there were no stops, layovers or bomb threats noted. An April 1965 Letter of Appreciation from the Commander of Company B expressed his appreciation for the unit's outstanding work in building the Bangkok By-pass Road. VA examinations conducted in May 1992 were negative for complaints, treatments, or diagnoses related to diabetes mellitus, an upper respiratory disorder, sleep apnea and/or erectile dysfunction. A December 1993 private treatment note contains an assessment of an upper respiratory infection. A January 1994 private treatment note indicates that the Veteran was a non-smoker and that he worked as a coal miner. An accompanying chest X-ray was negative for active chest disease. A February 1995 private treatment note reflects the Veteran's reports of nasal congestion, sneezing, rhinorrhea, and post-nasal drainage that "goes back for years" and that his symptoms usually occurred in the spring and summer. Impressions of allergic rhinitis with nasal polyposis and secondary stable antral polyps and probable reactive airway disease were made. A March 2001 VA treatment note indicates that the Veteran had suffered from impotence since 1999. In an October 2003 statement, the Veteran's private internist, Dr. S. F., indicated that she had followed the Veteran intermittently over the past 10 years for conditions, including allergic rhinitis and sinusitis, and that he did not have a family history of diabetes mellitus. The internist noted that she had stressed to the Veteran the need to monitor his blood sugars as he had the "classical metabolic syndrome consistent with an individual who was prone to getting diabetes mellitus later in life." The internist opined that since that the Veteran did not have a history of diabetes in his family, there "should be consideration that he [was] exposed to something which in service could have resulted in so many metabolic changes." In addition, the internist recommended that the Veteran's testosterone level be tested. In a November 2003 statement, the Veteran wrote that his job during service was to clear and make roads. He noticed that the trees were losing their leaves while in Vietnam and Cambodia. In a November 2003 VA Veteran's Application for Compensation and/or Pension (VA Form 21-526), the Veteran indicated that he had served in Vietnam and that he had been exposed to herbicides while serving in Vietnam, Cambodia and Thailand. During a June 2004 VA Agent Orange examination, the Veteran reported that he had been diagnosed with diabetes mellitus in 1989 and that he used Viagra for erectile dysfunction. Diagnoses included diabetes mellitus, type II or unspecified and chronic sinusitis. A December 2004 VA treatment note contains an assessment of sleep apnea. A February 2005 Personnel Information Exchange System (PIES) response indicates that that there was no documentation in the Veteran's personnel record to substantiate his claimed Vietnam service. In a June 2006 statement, the Veteran wrote that he had been treated for lesions on his face and arms after returning from the jungle. He also wrote that he knew "how much DDT" had been sprayed as he "did the defogging." During a September 2007 hearing, the Veteran testified that barrels branded with an orange stripe had been loaded onto aircraft and aerosol sprayed in Thailand. He saw that the trees' leaves were all gone and attributed this to the use of Agent Orange. He was not aware that he actually went into the Republic of Vietnam, Laos or Cambodia but, on one occasion, landed in Saigon while flying to the continental United States and deplaned for approximately nine hours. He recalled being taken deep into the jungle for three weeks, that the area was very heavy with spray, that the people in the area spoke a different language and were like "wild people" in the jungle. DDT was sprayed every night in the compounds and he recalled that one specific individual was responsible for spraying every night but that the Veteran would help him two or three times per week. His representative also argued that the Veteran had been actually exposed to herbicides while working in areas that had been defoliated. A September 2008 treatment summary from Dr. S. F. indicates that she was the first physician to find that the Veteran had diabetes mellitus. The internist then detailed the Veteran's reports regarding his claimed exposure to Agent Orange while clearing the jungle and building roads during service. In an October 2008 statement, the Veteran wrote that he did not go to the doctor much between service discharge and 1991 as he could not afford to do so. An August 2010 response from DPRIS indicates that the agency had coordinated its research with the U.S. Army Center of Military History (CMH), which was able to verify from the August 1965 station list that the 809th Engineer Battalion was stationed in Bangkok, Thailand. A review of the 1965 unit history from the 809th Engineer battalion indicates that the battalion was involved in the construction of the Bangkok Bypass Road (Freedom Highway); the history did not provide any information regarding any planes leaving Thailand. In an August 2010 statement, the Veteran wrote that he had volunteered to go on a mission and was taken deep into the jungle; he did not know where he was taken but recalled dead foliage. His job was to grade the road after it was built. He recalled being soaked in DDT, depending on the weather conditions, and that he would spray or help with the fog machine due to mosquitos in the jungle. He also recalled landing in Saigon, unloading all baggage and standing in the rain for nine hours or more on one occasion. A November 2010 RO Memorandum contains a formal finding that the Veteran's reported Republic of Vietnam service was not verifiable. A September 2011 RO Memorandum contains a formal findings of a lack of information required to verify exposure to herbicides in Thailand. The Memorandum noted that the Veteran's APO was designated as Camp Samae San (Sattahip), Thailand according to the Military Postal Agency (MPSA). Although the Veteran reported being the only one taken from his platoon and assigned to an area of the jungle which had been defoliated, his service personnel records do not show that he was given any temporary duty assignments and he did not provide a general location or an approximate date for such duty which would enable a search to be conducted. In a December 2011 statement, the Veteran wrote that that when he was released from the base in Thailand, the plane he was to fly on was filled up so he flew "stand by" on the next available flight. The pilot on this flight announced that they were landing in Saigon, they were deplaned and waited approximately nine hours. In a May 2012 statement, the Veteran wrote that he had been told that the barrels which were cut in half and filled with water were very poisonous as they had an orange stripe around them, signifying Agent Orange. He described the trees in the jungle as "dripping with Agent Orange." He worked with members of different companies on this project. After the project was completed, he sought treatment from the dispensary due to pimples on his arms, face and shoulders and was given soap. When leaving Thailand, he landed in Saigon and was unloaded while the plane was searched for a bomb. He was required to stand by his luggage for several hours. In a March 2013 statement, the Veteran wrote that he had been taken into another country to work and that this area had been "seeping" with herbicides. In addition, the RO obtained a copy of a Meritorious Unit Commendation which was awarded to the 809th Engineer Battalion (Construction) for the unit's exceptionally meritorious conduct in the performance of outstanding service by constructing the Freedom Highway, also known as the Bangkok By-Pass Road in Thailand. This road was constructed between February 1962 and February 1966 and was noted to provide an essential link between the Gulf of Thailand and Northeast Thailand. An undated Compensation and Pension Service Memorandum indicated that tactical herbicides, such as Agent Orange, were used and stored in Vietnam not Thailand. There were records indicating that commercial herbicides were frequently used for vegetation control within the perimeter of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer; Base Civil Engineers were not permitted to purchase or apply tactical herbicides. There were records which indicated that Ranch Hand aircraft flew 17 insecticide missions in Thailand from August to September 1963 and in October 1966 to spray malathion insecticide for the control of malaria carrying mosquitoes. An undated Historical Background of the 809th Engineer Battalion (Construction) indicates that the battalion had been selected to build the Bangkok Bypass Road from Chachoengsao to Kabin Buri in Thailand. Construction of the road began in April 1962 and was completed in February 1966. B. Analysis The Veteran contends that his diabetes mellitus was caused by his exposure to herbicides while on a layover in Saigon, Vietnam. He further contends that he was exposed to herbicides while clearing jungle and building roads in Thailand. He also has claimed that his upper respiratory disorder was caused by this herbicide exposure or DDT exposure. In addition, he claims that his diabetes mellitus caused or aggravated his sleep apnea and erectile dysfunction; direct service connection has not been alleged for these conditions. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, to include diabetes mellitus, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for diabetes mellitus), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 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 attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An upper respiratory disorder, obstructive sleep apnea and erectile dysfunction are not listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including Hodgkin's disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. The above-cited provisions specifically apply to Vietnam Era veterans, and have been extended to veterans who served near the Korean demilitarized zone (DMZ). See 38 C.F.R. § 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv). Service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. As noted above, service personnel records establish that the Veteran served in Thailand and the was attached to the 809th Engineering Battalion. However, the Veteran asserts that he was exposed to herbicides while working building roads in the jungle and during a layover in Saigon. Under these circumstances, VA's Adjudication Procedural Manual, M21-1MR, directs adjudicators to determine whether the Veteran served as security policeman, security patrol dog handler, member of the security police squadron or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. If the record did not establish that the Veteran had such duties along the perimeter, he was to be asked for the approximate dates, locations and nature of the alleged exposure. Information received by the Veteran was to be provided to the JSRRC for verification of exposure to herbicides, if the Veteran has provided sufficient information to permit such a search by the JSRRC. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). In this case, there simply is no persuasive, objective evidence to establish that the Veteran was actually exposed to herbicides in Thailand or Vietnam. As a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, and thus is competent to relate his travel arrangements and his occupational duties. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994), and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Even assuming, without deciding, that such lay assertions might provide some evidence of herbicide exposure in an appropriate case, such is not the case here. The Veteran has not alleged duties along the base perimeter or that he was exposed to herbicides while on base in Thailand. He testified during his September 2007 hearing that he did not know where he was when he was working in the jungle but felt that the people there spoke a different language. In this case, extensive searches have been conducted in an attempt to resolve the question of whether the Veteran had actual in-service herbicide exposure, and, collectively the results of such searches weigh against a finding of actual exposure. The August 2010 DPRIS response indicated that the Veteran's battalion was involved in the construction of the Bangkok Bypass Road while stationed in Bangkok, Thailand. A May 2012 DPRIS response indicated that the Veteran's unit history did not contain any information regarding members of the unit being on a flight that had stopped in Saigon. A January 2013 JSRRC Memorandum indicated that the Veteran did not provide a general location or approximate date for his purported temporary duty assignment in the jungle which would allow for verification. The undated Compensation and Pension Service Memorandum stated that tactical herbicides were used in Vietnam, and Thailand, and that commercial herbicides were used for vegetation control within the perimeter of air bases. In addition, the reports from the DPRIS and the JSRRC are objective and based on unit historical data and official Department of Defense records. The Board finds that these responses constitute probative evidence on the question of actual exposure. Further, the Veteran's contentions as to where he served while stationed in Southeast Asia, and hence exposed to herbicides, have been inconsistent. In a November 2003 statement, the Veteran wrote that he noticed that the trees had lost their leaves while in Vietnam and Cambodia. He indicated that he had served in Vietnam and specifically stated he had been exposed to herbicides or other herbicides while serving in Vietnam, Cambodia and Thailand on a November 2003 VA Form 21-526. However, during his September 2007 hearing, the Veteran testified that he was not aware that he had actually gone into the Republic of Vietnam or Cambodia during service. Such statements are inconsistent with the Veteran's subsequent assertions that he did not serve in Vietnam but rather had landed in Saigon in one occasion while flying to the continental United States and that he was exposed while clearing jungle. In light of these contradictory statements, the Board finds that any assertions as to his in-service exposure to herbicides, to include the locations where he may have served, are deemed to be not credible. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). As, on these facts, neither presumed nor actual in-service exposure to herbicides, to include Agent Orange, is warranted or shown, the Board has, like the RO, considered the claims for service connection for diabetes mellitus and an upper respiratory disorder under other theories of entitlement. The Board also finds, however, that no other legal theory provides a basis for an award of service connection for these disabilities at issue. Here, the Veteran's service treatment records reflect no complaints, findings, or diagnoses pertinent to diabetes mellitus or an upper respiratory disorder during service. No abnormalities with respect to such conditions were noted in the January 1966 service discharge examination and the Veteran has not contended that his diabetes mellitus or an upper respiratory disorder were present during service. The post-service clinical evidence contains a diagnosis of diabetes mellitus in May 2003 and an upper respiratory disorder, namely reactive airways, in December 2004. Absent competent evidence indicating diabetes mellitus within one year of the Veteran's separation from service, the Board finds that service connection may not be awarded on a presumptive basis as a chronic disease defined in 38 C.F.R. § 3.309(a) . The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability (i.e., at least 37 years in this case for diabetes mellitus and 27 years for an upper respiratory disorder) is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, the lack of any evidence (or even lay assertions) of symptoms during service which have continued to the present day preponderates against awarding service connection on the basis of chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). The Board notes the October 2003 letter from the Veteran's private physician, Dr. S. F., which stated that the Veteran did not have a family history of diabetes mellitus or significant lipid abnormality, but had a metabolic syndrome consistent with a person who was prone to getting diabetes mellitus later in life. She further added that, as there was no family history of diabetes, there should be consideration of the Veteran's exposure to something in service which could have caused so many metabolic changes. While this opinion suggests a connection between the Veteran's diabetes mellitus and service, it is not sufficient to substantiate the claim due to the speculative or vague employed by the physician. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). See also; Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). In addition, this opinion appears to be based upon the Veteran's reports of being exposed to herbicides during service, which the Board has found to be not credible. The Board points out that an opinion based on an inaccurate (or unsubstantiated) history has no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). There also is no competent evidence or opinion even suggesting that there exists a medical nexus between the diabetes mellitus and/or an upper respiratory disorder diagnosed so many years after the Veteran's discharge and any incident of service. None of the medical treatment records reflect any such opinion or even comment to that effect, and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. Furthermore, on this record, VA is not required to obtain a medical opinion addressing the etiology of the Veteran's diabetes mellitus and/or an upper respiratory disorder. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has a current disability (diabetes mellitus and an upper respiratory disorder), but there is nothing to indicate that either disability may be associated with an event, injury, or disease in service. As previously discussed, the Veteran himself does not contend that he experienced any symptoms related to these disabilities during service or for many decades after service. Additionally, there is no medical or other persuasive evidence which suggests that the current diabetes mellitus and/or an upper respiratory disorder are related to service. Moreover, in the absence of evidence of an in-service disease or injury, a remand of either of the above-referenced claims for an examination or to obtain an opinion as to the etiology of the Veteran's claimed diabetes mellitus and an upper respiratory disorder would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's diabetes mellitus and/or an upper respiratory disorder and his service would necessarily be based solely on the Veteran's current uncorroborated assertions regarding what occurred in service advanced in support of this claim (i.e. that he was exposed to herbicide) and which the Board has found to not be credible. As indicated above, a a medical opinion premised on an unsubstantiated account of a claimant has no probative value. See, e.g., Reonal, 5 Vet. App. at 461; Swan, 5 Vet. App. at 233)). Simply stated, arranging for the Veteran to undergo VA examination or otherwise obtaining a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2012). Therefore, VA has no obligation to obtain any medical opinion(s) commenting upon the etiology of the Veteran's claimed residuals of diabetes mellitus and/or upper respiratory disorder. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Furthermore, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's diabetes mellitus and/or an upper respiratory disorder and service, the Board notes that the matter of the etiology of each disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter upon which these claims turn. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, lay assertions of medical nexus have no probative value. Finally, as for the matters of service connection for sleep apnea and/or erectile dysfunction on a secondary basis, the Board notes that, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, however, as service connection for diabetes mellitus has not been established, there is no legal basis for award of service connection for any disability secondary thereto. For all the foregoing reasons, each claim for service connection must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus, claimed as due to herbicide exposure, is denied. Service connection for an upper respiratory disorder, claimed as due to herbicide and/or DDT exposure, is denied. Service connection for sleep apnea, claimed as due to diabetes mellitus, is denied. Service connection for erectile dysfunction, claimed as due to diabetes mellitus, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs