Citation Nr: 1328805 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-23 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for diabetes mellitus, Type II, including as due to Agent Orange Exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1955; from November 1955 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Board remanded this claim for additional development. All requested actions have been completed and the claim is once again before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus. 2. The Veteran was stationed in Thailand during the Vietnam War, but it was not during a time when Agent Orange was used or sprayed there, and there is no other credible indication his service there involved exposure to Agent Orange or other herbicides. 3. The competent and credible evidence does not support a finding that his diabetes began while he was in service, within one year of his discharge, or is the result of exposure to Agent Orange in service. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in, or aggravated by, active military service, and it may not be presumed to have been so incurred, to include as due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (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)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in October 2009 and April 2012 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in July 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records. However, and as will be explained, there is no competent and credible evidence that he had diabetes during service or even for many years after his discharge. Nor does the evidence indicate the claimed disorder is the result of exposure to Agent Orange or other herbicides while stationed in Thailand. Thus, the Board is not required to have him undergo a VA compensation examination for a medical nexus opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). As indicated in the Introduction, the Board remanded the case for additional development in September 2012. The Board finds that the AOJ has substantially complied with the September 2012 remand directives in seeking additional information about the Veteran's claimed exposure to Agent Orange such that no further action is necessary in this regard. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (stating Board remand orders require "substantial compliance, not absolute compliance"). In November 2011, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in which he and his wife presented oral arguments in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs 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 hearing, the VLJ asked questions directed at identifying whether the Veteran met the criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and described his relevant symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, 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 do so. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so, and the Board may proceed with a decision. II. Service Connection The Veteran contends he has diabetes due to his military service but, specifically, the result of his exposure to Agent Orange or other herbicides while stationed in Thailand during the Vietnam War. Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated in the line of duty during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Diabetes mellitus also will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Also, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence establishing the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "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). An opinion of VA's General Counsel held that service on a deep-water naval vessel off the shores of Vietnam, without proof of actual duty or visitation in the Republic of Vietnam, may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A). The Federal Circuit Court since has clarified that service in the Republic of Vietnam requires service on the landmass of Vietnam or inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). The diseases presumptively associated with herbicide/Agent Orange exposure include chloracne or other acneform disease consistent with chloracne, Type II Diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e), see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Here, VA and private treatment records show the Veteran was initially diagnosed with diabetes in February 2003. So the question then becomes whether the Veteran's diabetes is a result of his military service, and specifically due to his alleged exposure to Agent Orange in Thailand. The Veteran acknowledges he did not serve in Vietnam but claims similar exposure to Agent Orange while stationed in Thailand. He says that he witnessed the spraying of Agent Orange at Udorn Royal Thai Air Force Base, in Thailand in 1969 and 1970, and was exposed to Agent Orange when he was on guard duty near the flight line as an assistant flight coordinator, which was near perimeter of the base. The Veteran was provided a copy of the Director of Compensation and Pension Service's Memorandum entitled "Herbicide Use in Thailand during the Vietnam Era." This memorandum indicates that herbicides were used and stored in Thailand from April to September 1964 and not at any point after. This Memorandum also indicates that the small-scale herbicide usage to clear weeds in and around the bases and airstrips were commercial products and not Agent Orange. There are no presumptions based on exposure to commercial herbicides. If the Veteran was exposed to commercial herbicides in Thailand, his exposure risk would be similar to exposure to the commercial herbicides sold and used in the United States. In response to the September 2012 Board remand, additional efforts were made to confirm the Veteran's statements as to his exposure to Agent Orange or other herbicides during his time in Thailand. However, a July 2013 Formal Finding of Unavailability for clinical records from the Air Force Historical Research Agency also fails to confirm any exposure to Agent Orange. It is equally significant that the Memorandum indicates any spraying or use of Agent Orange had ended by 1964, well before his service in Thailand from February 1969 to February 1970. This Memorandum is more probative on the issue of Agent Orange exposure than the Veteran's unsubstantiated lay allegations to the contrary. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). As the Veteran did not serve in Vietnam or elsewhere, namely, in Thailand, during a time when Agent Orange was used or sprayed, his diabetes necessarily cannot be a presumptive consequence. There also was no indication of diabetes to the required minimum compensable degree of at least 10-percent disabling within the required one-year of his discharge from service to otherwise warrant presuming it was incurred in service. But even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, his claim must still be reviewed to determine whether service connection may be established alternatively on a direct incurrence basis by establishing the required causation. See Combee v. Brown, 34 F.3d 1039(Fed Cir. 1994). Service medical records are negative for diagnoses or treatment of diabetes mellitus. Additionally, private medical records reflect that the Veteran was diagnosed with diabetes mellitus in February 2003. VA outpatient records dating from February 2003 note the diabetes diagnosis. These records only show treatment for the Veteran's diabetes, but do not contain any etiological opinions attributing the diabetes to his military service. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. But the Federal Circuit Court went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Because the determination of whether a person has diabetes is based on objective clinical data, such as persistently elevated blood sugar, etc., it is not the type of condition that is readily amenable to mere lay diagnosis or probative comment on its etiology. So the Veteran's unsubstantiated lay testimony, alone, is insufficient to establish the date of onset of his diabetes (i.e., that it started during his service or within one year after) or is the result of his service. See again Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are not competent in this regard. Therefore, because the Veteran has no competent and credible evidence of in-service incurrence of his diabetes, or of an initial manifestation of this condition to a compensable degree of at least 10-percent disabling within the one-year presumptive period following his service, or proof of exposure to Agent Orange or other herbicides in Thailand that could be presumptively considered to have caused the Veteran's diabetes mellitus, the preponderance of the evidence is against the claim. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied. ORDER The claim for service connection for diabetes mellitus, Type II, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs