Citation Nr: 1331163 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-06 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for diabetes mellitus with peripheral neuropathy of the lower extremities as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Vermont Veterans Affairs Section, Military Department WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1973 to August 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish the Veteran was exposed to Agent Orange during his military service. 2. The evidence does not establish the Veteran's currently diagnosed diabetes mellitus and peripheral neuropathy either began during, or were otherwise due to, the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus and peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for his currently diagnosed diabetes mellitus and peripheral neuropathy of the lower extremities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes the medical evidence of record establishes the Veteran currently has diabetes mellitus. Service treatment records were reviewed and fail to establish the Veteran made any complaint of, or sought any treatment for, any symptoms of diabetes mellitus or peripheral neuropathy during his military service. The Veteran was found to be in normal condition at his separation examination in July 1975. Therefore the Board finds the evidence does not establish the Veteran developed diabetes mellitus or peripheral neuropathy during his military service. Post-service treatment records establish the Veteran was diagnosed with diabetes in approximately June of 2008, more than thirty years after his separation from military service. In his July 2011 hearing the Veteran himself testified that he was diagnosed with diabetes "five years ago or six years ago," or in approximately 2005. However, even assuming the Veteran's earlier estimation is accurate, the Veteran did not develop diabetes until thirty years after he separated from military service. The record does not contain any medical opinion otherwise relating the Veteran's current conditions to his military service. As such, the Board finds the evidence does not establish the Veteran's current diabetes mellitus and peripheral neuropathy are connected to the Veteran's military service on a direct basis. Throughout the period on appeal the Veteran has consistently alleged his diabetes mellitus and subsequent peripheral neuropathy are due to exposure to Agent Orange while stationed at Camp Casey in North Korea from 1974 to 1975, including numerous day trips to the demilitarized zone (DMZ) during this assignment. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service. 38 C.F.R. § 3.307(a)(6). Diabetes mellitus is included on the exclusive list of diseases covered by this presumption and accordingly 38 C.F.R. § 3.307(a)(6) may apply to this case. 38 C.F.R. § 3.309(e). However, as will be discussed, the Board finds the evidence does not establish the Veteran was exposed to Agent Orange during his military service. VA regulations provide 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, such as Agent Orange, 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)(6)(iv). The M21-1 includes a table showing those units (and other personnel) that the Department of Defense has identified as operating in or near the Korean DMZ during the time period when herbicides were used between April 1968 and July 1969. See M21-1MR pt. IV, subpt. ii, ch. 2, sec. C.10.p. However, by his own testimony the Veteran did not serve in Korea until 1974, approximately three years after the presumptive period. The Veteran's testimony is supported by his DD-214 which reflects the Veteran did not enter military service until August 1973. Therefore, the Veteran did not serve in Korea between April 1968 and August 1971. Accordingly, the Board finds the Veteran was not presumed exposed to Agent Orange based on his military service along the DMZ in Korea. Consequently, in order to be afforded presumptive service connection under 38 C.F.R. § 3.307 the evidence must establish the Veteran was exposed to Agent Orange during his military service. The Veteran has not testified or submitted any evidence that he was directly exposed to Agent Orange during his military service. Instead, the Veteran and his representative have consistently asserted that the Veteran was exposed to residuals of dioxin, a compound found in Agent Orange, through the soil and dust along the DMZ. In the July 2011 brief, the Veteran's representative argued that dioxin bonds with the soil and that it remains in the soil for years. In support of this theory the Veteran and his representative submitted a report from the National Research Council titled Health Risks from Dioxin and Related Compounds: Evaluation of the EPA Reassessment. This report discusses the health effects of exposure to dioxins. Most relevant to the case at hand, the report discusses the potential for trace levels of dioxins to contaminate the soil and build up in the food chain since dioxins "do not readily degrade." The United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise, such as the report in this claim, "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); and Wallin v. West, 11 Vet. App. 509 (1998). The potential for residual exposure to herbicides for time periods long after spraying had ceased was addressed when VA enacted 38 C.F.R. § 3.307(a)(6)(iv). At that time, commenters were concerned that the proposed time period was not supported by scientific evidence. See, generally, 76 Fed. Reg. 4245-48 (Jan. 25, 2011). In response, VA revised the proposed rule to define the presumed exposure period from April 1, 1968, to July 31, 1969, to extend the time period for presumed exposure to August 31, 1971, to account for the potential for residual exposure. In other words, the Department of Defense has identified use of Agent Orange along the DMZ between April 1968 and July 1969, but the presumption of exposure extends two years beyond conclusion of spraying in that area. In the present case, the medical report submitted by the Veteran's representative only provided general information regarding the potential for trace levels of dioxins to remain in the soil and build up in the food chain and did not specifically address the facts of the Veteran's claim. In other words, this article does not provide persuasive evidence that the Veteran was actually exposed to Agent Orange approximately five years after last known use of Agent Orange along the DMZ. Nor was this report accompanied by the opinion of any medical expert providing an opinion on the Veteran's claimed exposure. As such, the Board concludes that this information is insufficient to establish the required medical nexus opinion in this case. As for the Veteran's lay statements, he did not testify as to any incidents of actual exposure or any knowledge of actual exposure. There is no evidence showing he has any type of scientific background or training to opine as to the presence of Agent Orange in the soil along the DMZ in 1974. Again, the article above is simply too generic to be persuasive evidence of actual exposure in this case. As discussed above, the Board finds the evidence does not establish his diabetes mellitus and peripheral neuropathy began during or were otherwise related to his military service. In addition he was not presumptively exposed to Agent Orange and has not otherwise established he was actually exposed to herbicides during military service. Therefore the Board finds the evidence does not establish the Veteran's currently diagnosed diabetes mellitus and peripheral neuropathy are due to his military service. The Veteran's claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. The Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ) in July 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the State of Vermont Office of Veterans Affairs. The representative asked questions regarding the nature and etiology of the Veteran's claimed diabetes mellitus and peripheral neuropathy, specifically regarding his alleged exposure to Agent Orange. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Although an opinion was not provided as to the relationship between the Veteran's disabilities and his alleged exposure to Agent Orange, that is not necessary here, where there is no persuasive evidence there was such exposure. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs