Citation Nr: 1330367 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-25 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from May 1966 to December 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In September 2013, the Veteran's representative waived RO consideration of evidence which has not been considered by the RO in its adjudication. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6)(i), during his military service in Korea. 2. Diabetes mellitus, type 2, was not present until many years after service and there is no competent evidence that the Veteran's current diabetes is related to service. CONCLUSION OF LAW Diabetes mellitus, type 2, was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in October 2006 that fully addressed all notice elements and was sent prior to the initial regional office decision in this matter. The letter informed him of what evidence was required to substantiate his claim and of his and the VA's respective duties for obtaining evidence was well as the criteria for establishing a disability rating and effective date of award. Thus, the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment records and pertinent treatment records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors to consider: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records, and service treatment records. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Veteran was not afforded a VA examination because, while there is evidence of a current disability, there is no credible evidence establishing the disease manifested during the applicable presumption period, and there is no indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability. Therefore, a VA medical examination is not required. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 .3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for Diabetes Mellitus, Type 2, to Include as Due to Exposure to Herbicides The Veteran seeks entitlement to service connection for diabetes mellitus, type 2. He has reported the onset of diabetes mellitus in 2004. See VA Form 21-4138 received February 2007. See also VA clinic record dated February 19, 2004 (Veteran denied a history of diabetes mellitus). He asserts he was exposed to herbicides while serving in Korea. Specifically, the Veteran recalls that Agent Orange was stored on base at Kwang Ju Air Force Base (AFB), Korea. He describes that no foliage was present around the base perimeter. Additionally, he has alleged exposure to Agent Orange via military aircraft returning from combat missions in Vietnam. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's service treatment records have been reviewed. The Veteran's June 1962 enlistment examination revealed a negative sugar urinalysis. The service treatment records are absent of any complaints or symptoms related to diabetes mellitus. A periodic examination in July 1966 revealed a negative sugar urinalysis. The Veteran's discharge examination in July 1970 was also silent as to any diagnosis or treatment of diabetes mellitus. Overall, the Veteran's service treatment records provide strong probative evidence against a service connection finding on a direct service connection theory under 38 C.F.R. § 3.303. It is also possible to be awarded service connection if the current disability is presumed to have been incurred in service. When a Veteran served 90 days or more during a period of war and diabetes mellitus or an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The earliest evidence of treatment for diabetes mellitus is March 2004, more than 30 years after service. A VA treatment note from March 2004 indicates that, after lab tests were conducted, the Veteran was diagnosed with "new onset" diabetes mellitus. Overall, the Veteran's post-service treatment records provide strong probative evidence against a service connection finding on a presumptive service connection theory as a "chronic disease" under 38 C.F.R. §§ 3.307 and 3.309(a). The Board also considers the Veteran's contentions as to the onset of his diabetes mellitus. In this case, the Veteran has not argued that his diabetes mellitus manifested in service or within the first postservice year. Rather, he has reported the onset of diabetes mellitus in 2004, which is entirely consistent with his post-service clinic records. See VA Form 21-4138 received February 2007; VA clinic record dated February 19, 2004. Thus, the Board finds by a preponderance of the credible lay and medical evidence that the Veteran's diabetes mellitus first manifested many years after military service. However, a Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If exposed to an herbicide agent during active military, naval, or air service, the Veteran shall be service-connected for diabetes mellitus, type II, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). The Board finds that the Veteran did not have service in Vietnam, and therefore, the presumption pertaining to development of diabetes following exposure to herbicides, based on service in Vietnam, does not apply in the present case. However, the Department of Defense (DoD) has determined that Agent Orange was used along the Korean Demilitarized Zone (DMZ) from April 1968 to July 1969. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are also presumed to have been exposed to herbicide agents. If a Veteran had active service in Korea between April 1, 1968, and August 31, 1971, in a unit that, as determined by the DoD, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the Veteran will be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, and service connection based on such exposure will be presumed for certain conditions including diabetes mellitus, type 2. 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). The Veteran has asserted he was on temporary duty in Korea from December to December 1968 at the Kwang Ju AFB and was exposed to herbicides while working on aircraft. According to the Veteran's Military Personnel File, in October 1968, he was assigned to the 18th Armament and Electronics (A&E) Maintenance Squadron as an Aircraft Radio Repairmen, and he was deployed to Korea for 60 days in support of "Operation Combat Fox." See December 1968 AF Form 910. Personnel records also indicate he served in Okinawa. As noted in a June 2008 letter, a listing provided by the DoD, of 71 sites within the United States and in foreign countries where herbicides/Agent Orange use or testing is acknowledged was reviewed. The Veteran's unit, the 18th A&E Maintenance Squadron is not one of the units listed as being near the DMZ. The June 2008 letter indicates that the Veteran's unit was near the Kunsan Airbase, which was not near the DMZ. A request was made to the Records Research Center, in July 2008, to determine if there was any evidence that the Veteran was exposed to herbicides during service. In July 2008, a response was received from the Director of the Records Research Center. The Acting Director indicated that they were unable to document that Agent Orange was sprayed, stored, tested or transported at either Kadena AFB, Okinawa or Kwang Ju AFB, Korea. The Acting Director stated that available unit histories do not mention or document any herbicides spraying, testing or storage at either base and that it could not be confirmed that the Veteran was exposed to Agent Orange while working on aircraft. At the outset, the Board must note that the term "herbicide" as used for presumptive service connection purposes under 38 C.F.R. § 3.309(e) has been specifically defined by VA. The term "herbicide agent" means a "chemical in an herbicide" used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era; specifically, this includes 2,4-D; 2,4,5-7 and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Upon review of the entirety of the record, the Board finds by a preponderance of the evidence that the Veteran was not exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6)(i), during his military service in Korea. On the one hand, the Veteran asserts that Agent Orange was stored at Kwang Ju AFB. This statement, in and of itself, has little probative value as the Veteran provides no description to support how he has personal knowledge of this fact (e.g., witnessing a barrel labeled Agent Orange, being told by an individual with personal knowledge that Agent Orange was stored, etc.). The Veteran also asserts that Agent Orange usage at Kwang Ju AFB may be established by the lack of vegetation around the perimeter. The Veteran is clearly competent to describe lack of vegetation and events such as spraying of vegetation. However, this evidence does not establish that an "herbicide," as defined at 38 C.F.R. § 3.307(a)(6)(i), was used at Kwang Ju AFB. Notably, a general use of herbicides does not meet the definition of 38 C.F.R. § 3.307(a)(6)(i) which contemplates a "chemical in an herbicide used" such as 2,4-D; 2,4,5-7 and its contaminant TCDD; cacodylic acid; and picloram. The Board further notes that the Veteran's allegation of Agent Orange exposure via contact with planes returning from Vietnam has no probative value. The issue of whether any plane returning from Vietnam contained any residual herbicide would require a highly technical chemical analysis which is beyond the Veteran's competence. Furthermore, the Board notes that the presumption of exposure to herbicides does not extend to those who were in contact with equipment or personnel returning from Vietnam. See VA Adjudication Procedure Manual, M21-1MR Part IV.ii.2.C.10.m. To the extent that the Veteran's allegations constitute competent evidence in support of the claim, the Board finds that the DoD guidelines of where and when herbicides were used and stored substantially outweigh the Veteran's assertions as the DoD controlled herbicide use and is the custodian of records for the historical use of herbicides in Korea. Thus, although the Veteran has been diagnosed with a disease listed at § 3.309(e) (diabetes mellitus, type 2), he is not entitled to the presumption that it was incurred in or aggravated, by service on the basis of exposure to herbicides during service. In reaching the above conclusions, the Board has not overlooked the Veteran's contentions, his complaints to healthcare providers, and his written statements. The Board does not doubt the sincerity of the Veteran's beliefs but, for the reasons set forth above, finds that the entire evidentiary record as a whole preponderates against his claim. In essence, the problem in this case is that the Board is unable to find that that the Veteran was exposed to "a chemical in an herbicide" as defined by 38 C.F.R. § 3.307(a)(6)(i). Thus, his own opinion and theories about his claimed disability, to the extent they are to be accorded some probative value, are far outweighed by the evidence of record, particularly the lack of official service department documentation, or any other objective evidence, to support his claim of herbicide exposure. There is no reasonable doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). In sum, the Board acknowledges that the Veteran has a current diagnosis of diabetes mellitus. However, based on the foregoing evidence, the Board finds that diabetes was not present until many years after service and there is no competent evidence that the Veteran's current diabetes is related to service, including exposure to herbicides. Accordingly, the Board concludes that diabetes was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. ORDER Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides, is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs