Citation Nr: 1329570 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-02 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1967, and from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The evidence is against a finding that the Veteran was exposed to herbicides during his military service, including service in Korea. 2. There is no competent and probative evidence that the Veteran's diabetes mellitus, type II is related to service. 3. The Veteran's current diabetes mellitus, type II did not manifest within one year of his separation from service, so the evidence is against a finding of service connection due to manifestation of a chronic disease on a presumptive basis. CONCLUSION OF LAW The criteria to establish entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure are not met. 38 U.S.C.A. §§1101, 1110, 1112, 1131, 5103(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) states that VA 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, and 3.326(a) (2012). As for the duty to notify, VA must notify claimants of the evidence that is necessary, or would be of assistance in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The notice VA provides must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. §3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, proper notice was provided to the Veteran in October 2009, prior to the initial adjudication of his claim in January 2010. The content of the notice letter fully complies with requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agencies, or other entities that had additional records to help decide his claim. The notice informed the Veteran that the cause of disability is presumed for certain Veterans who have certain diseases, including those exposed to herbicides. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA also satisfied its duty to assist the Veteran in the development of his claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and providing an examination when warranted. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. With regard to procurement of records, the RO associated the Veteran's service treatment records, service personnel records, and VA treatment records with the claims file. Private medical evidence from identified service providers was also associated with the claims file. The RO also contacted the Joint Service Records Research Center (JSRRC) to obtain verification of exposure to herbicides since the Veteran claimed exposure in Korea. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. As for providing an examination when warranted, the United States Court of Appeals for Veterans Claims (Court) stated that "[i]n disability compensation claims, the Secretary 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 Secretary to make a decision on the claim. Thus, there are four elements to review to determine if a medical examination is necessary." McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006)(internal citations omitted). However, under 38 U.S.C.A. § 5103A(a)(2), the Secretary "is not required to provide assistance to a claimant ...if no reasonable possibility exists that such assistance would aid in substantiating the claim." Duenas v. Principi, 18 Vet. App. 512, 517 (2004) (noting that "a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease"). When the Board decides whether a medical examination or opinion is necessary, it must provide a written statement of the reasons or bases for its conclusion.38 U.S.C.A. § 7104(d)(1); Duenas, 18 Vet. App. at 517-18. In this case, the RO did not provide the Veteran with a VA examination since no reasonable possibility existed that such assistance would aid in substantiating the claim because the record does not contain evidence of an in- service event, injury, or disease. As explained in greater detail below, the record does not include evidence establishing an in-service event, injury, or disease because the record is against a finding that the Veteran was exposed to herbicides as a Forward Observer or while stationed on bases in Korea according to the unit histories of his battalions, the Veteran did not have any test results in service that indicated that he had diabetes mellitus, type II, and his condition was identified long after his exit from service and well after any applicable presumptive period. Since there was no evidence of an in-service event, injury, or disease, a VA examination was not required to comply with the requirements of the VCAA. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits of the Service Connection Claim A. Methods to Establish Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303. As for service connection on a presumptive basis due to herbicide exposure, 38 C.F.R. § 3.309(e) states that if a Veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though 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. In addition, 38 C.F.R. § 3.307(a)(6)(ii) states that "diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service." Finally, 38 C.F.R. § 3.307(a)(6)(iv) explains that "a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." Service connection may also be established under 38 C.F.R. § 3.309(a) and 3.303(b) on a presumptive basis through evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and subsequent manifestations of the same chronic disease, or if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can only be applicable in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If the evidence does not establish service connection on a presumptive basis, the Veteran can still establish service connection on a direct basis if he can show: "(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 - the so- called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) Finally, 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. The Veteran's Contentions The Veteran seeks service connection for his current diabetes mellitus type II diagnosed in February 2002, as he contends in his claim that this condition was incurred due to exposure to Agent Orange while serving in Korea in 1968. The Veteran stated that he is not obese, he exercises on a regular basis, and he does not have a family history of the condition. In his notice of disagreement in September 2009, the Veteran stated that he performed the duty of a Forward Observer on two occasions, where he spent a total of four to five days on the DMZ. The Forward Observer was required to hike to the outposts located on the DMZ carrying food supplies, and the duty was rotated between the battalions and provided 365 days a year. The Veteran stated that it was correct that his unit as a whole did not operate on the DMZ, but noted that the Seventh Division Artillery provided Forward Observers to outposts on the DMZ. The Veteran stated that he did not know whether Agent Orange was or was not used at the outposts where he served, but indicated that the Second Division records would show which outposts were supported by the Seventh Division Artillery. In an October 2009 statement in support of his claim, the Veteran indicated that he was exposed to herbicides in the Korean DMZ from January 1968 to February 1969, and his compound was sprayed at that time. In January 2011, the Veteran submitted a statement essentially identical to the statement submitted in September 2009 in his notice of disagreement. C. Analysis As for service connection on a presumptive basis due to herbicide exposure, the Board initially acknowledges that the Veteran has the present disability of diabetes mellitus, type II, diagnosed in February 2002 according to VA and private treatment records in the claims file, which was approximately 33 years post-service. Diabetes mellitus, type II is one of the diseases listed in 38 C.F.R. § 3.309(e) that may be service connected on a presumptive basis due to herbicide exposure, and the condition may manifest at any time post-service to a degree of 10 percent. The JSRRC was contacted in order to determine whether the Veteran was exposed to Agent Orange. In January 2010, they reported the following: We reviewed the 1968 and 1969 unit histories submitted by the 1st Battalion, 79th Artillery (1st Bn, 79th Arty). The histories document that the headquarters Battery was stationed in Camp Hartell, located approximately three miles from the Demilitarized Zone (DMZ). The line batteries were stationed in Camp Paine, located approximately seven miles from the DMZ. However, the histories do not document the use, storage, spraying, or transportation of herbicides. In addition, the histories do not mention or document any specific duties performed by the unit members along the DMZ..l According to military records, herbicides were used in Korea between 1968 and 1969. The documentation states that the Republic of Korea Armed Forces used chemical herbicides alone the southern boundary of the Demilitarized Zone form April 1968 to July 1969, as part of the counter-infiltration operations. The herbicides were applied using hand sprayers and M8A2 trailer mounted decontamination apparatus. Although United States Army Non-Commissioned Officers advised Republic of Korea personnel in the use of herbicides, no United States personnel are known to have been actually involved in their application. There is no affirmative evidence to establish that the Veteran was exposed to Agent Orange during his active military service in the Korean DMZ per 38 C.F.R. § 3.307(a)(6)(iv). Therefore, service connection on a presumptive basis as a result of herbicide exposure is not warranted. The VA concedes exposure to herbicides for Veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv). VA further advises in the M21-1MR that a "request to the JSRRC [Joint Services Records Research Center] for verification of exposure to herbicides" is appropriate where a "[v]eteran claims exposure in Korea, and his/her service was not between April 1, 1968, and August 31, 1971." M21-1MR, pt. IV, subpart ii, ch. 2, sec. C, subch. 10(p) (emphasis in original). The Veteran initially contended that he was exposed to Agent Orange while in service in Korea in 1968, and further explained that he performed the duty of a Forward Observer on two occasions, where he spent a total of four to five days on the Korean DMZ hiking to the outposts located on the Korean DMZ carrying food supplies. The Veteran indicated that he may have been exposed to herbicides while hiking through the DMZ to the outposts. The Veteran's service personnel records and DD-214 indicate that he served active duty in Korea from February 6, 1968 to February 1969. The Veteran's personnel service records support his assertions that he served as a Forward Observer as they include a notation that he served as an "FO" effective February 6, 1968 to April 1, 1968. As part of the Veteran's service in Korea occurred prior to April 1, 1968, which is the date the Department of Defense (DOD) acknowledged using herbicides in the Korean Demilitarized Zone (DMZ), a JSRRC inquiry was conducted. The unit histories from 1968 and 1969 generated by the JSRRC for units the Veteran served in do not mention or document any specific duties performed by the unit members along the DMZ, so the unit histories do not contradict the Veteran's assertions that he hiked into the DMZ while a Forward Observer. However, the evidence is against a finding that the Veteran was exposed to herbicides during the period between February 6, 1968 and April 1, 1968 since JSSRC research indicated that the unit histories for the battalions the Veteran served in do not document the use, storage, spraying, or transportation of herbicides in 1968 and 1969. Since the official unit histories do not document use, storage, spraying, or transportation of herbicides by those units during the timeframe between February 6 and April 1, 1968 when the Veteran operated as a Forward Observer, the unit histories are against the Veteran's assertions of exposure to herbicides during that time. The Veteran also contended in his October 2009 statement that he was exposed to Agent Orange while in service in Korea from January 1968 to February 1969 and his compound was sprayed. The Veteran is competent to state what he remembers from his service in Korea based on his personal observations and experience, but the other evidence in the record contradicts his assertions and minimize the credibility of the statements. For example, the Veteran was in transit to Korea in January 1968, and did not arrive and obtain an assignment until February 6, 1968 per his record of assignments. Thus, his argument that his compound was sprayed is unsupported by his personnel records for the time between January 1968 and February 6, 1968 because the records show that the Veteran was not in Korea for this span of time to know whether or not the compound was actually being sprayed. As for the period of time from February 6, 1968 to the end of his service in Korea, the only evidence is the Veteran's assertion that the compound was sprayed during this period. However, the RO sought verification of the Veteran's exposure with the JSRRC, and the research is also against the Veteran's assertions since the report stated that the 1968 and 1969 histories of the battalion the Veteran served in, which were stationed at Camp Hartell and Camp Paine, did not document the use, storage, spraying, or transportation of herbicides. Finally, although the Veteran's battalion served at military bases three and seven miles away from the Korean DMZ, the battalion and units the Veteran served with are not included in the table of units or other military entities that DOD has identified as operating in or near the Korean DMZ during the qualifying time period. See VA Adjudication Procedures Manual, M21-1MR IV.ii.2.C.10.p. Thus, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides when his compound was sprayed. Based on the foregoing, the evidence is against a finding that the Veteran was exposed to herbicides in service, and thus incurred an in-service event, injury, or disease. As for service connection under 38 C.F.R. § 3.309(a) and 3.303(b) due to chronic disease, the evidence is against a finding of service connection on a presumptive basis for the Veteran's diabetes mellitus, type II. Although diabetes mellitus is a chronic disease listed in 38 C.F.R. § 3.309(a), it was not shown in service as the service treatment records do not include notations of diabetes mellitus, the Veteran's endocrine system was normal on examination, and laboratory testing showed that findings for sugar were negative. In addition, the record does not indicate that the Veteran continually suffered from symptoms of diabetes mellitus type II since service that were later determined to constitute the condition in order to prevail via continuity of symptomatology. Finally, the Veteran's diabetes mellitus, type II was diagnosed approximately 33 years after military service ended, which was well beyond the applicable presumptive period of one year as specified by 38 C.F.R. § 3.307. Thus, the evidence is against a finding that the Veteran is entitled to service connection for diabetes mellitus, type II based on the chronic disease presumption. As for service connection on a direct basis, the evidence is against a finding that the Veteran is entitled to service connection on this basis. Although the Veteran has a present disability of diabetes mellitus, type II, the evidence is against his assertion that an event, injury, or disease occurred in service as discussed above. As the evidence is against a finding of an in-service event, injury, or disease, the Board need not reach the issue of a nexus. Based on the foregoing, the Board finds that service connection is not warranted for the Veteran's diabetes mellitus, type II. The evidence is against a finding of an in-service incurrence of a disease, injury, or event. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is thus inapplicable in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). CONTINUE ON THE NEXT PAGE ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs