Citation Nr: 1332008 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 07-22 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus (DM), to include as due to in-service herbicide exposure. 2. Entitlement to service connection for prostate cancer residuals, to include as due to in-service herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1967. The current matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service connection for type 2 DM and for prostate carcinoma was denied therein. The Veteran appealed these determinations. In October 2010, the Board denied service connection for type II DM and for prostate cancer. The Veteran appealed these determinations to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court issued a Memorandum Decision setting aside the Board's decision. The issues it addressed were remanded back to the Board for additional development and readjudication. This development was directed by the Board in an October 2012 remand. The following determinations constituting readjudication are based on review of the Veteran's paper claims file in addition to his Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran currently has type II DM, but it did not manifest until well after one year following his separation from service. 2. The Veteran had prostate cancer and now has residuals thereof, but the cancer did not manifest until well after one year following his separation from service. 3. There is no indication that the Veteran was exposed to an herbicide agent during service, and such exposure cannot be presumed because he did not serve in the Republic of Vietnam (RVN) between January 9, 1962, and his service separation. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for type II DM have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for establishing service connection for prostate cancer residuals have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. VA must provide notice prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that a rating and an effective date will be assigned if service connection is granted for a disability also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found. Via a letter dated in March 2006, the Veteran and his representative were notified of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This was prior to the initial adjudication by the AOJ, which in this case is the RO, in the July 2006 rating decision. The Veteran has not been provided notice that a disability rating or an effective date for the award of benefits will be assigned if service connection were granted, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, given the denial hereinafter of the Veteran's service connection claims, any questions as to a disability rating or an effective date are moot. Thus, the Board finds that the Veteran has not been prejudiced by VA's failure to provide notice on these elements of his claims, nor has he claimed prejudice. Additionally, VA has a duty to assist with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A medical examination or medical opinion is necessary when there is evidence that the Veteran has a current disability or symptoms of a disability, that he suffered an event, injury, or disease during service or manifested a chronic disease during its presumptive period, and that the current disability or symptoms may be associated with the event, injury, or disease manifested during service but insufficient evidence for adjudication. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor is a low threshold. For example, it is satisfied by medical evidence that suggests but does not confirm a nexus or credible lay evidence of persistent symptoms since service. McLendon, 20 Vet. App. at 79. Service treatment records and service personnel records regarding the Veteran have been obtained by VA. There appear complete, and there has been no allegation to the contrary. The Court directed in its Memorandum Decision that VA additionally obtain morning reports and unit rosters, as they might verify RVN service. In compliance therewith, the Board's remand directed that the Veteran be requested to specify his unit when he recounts being in the RVN, that the National Personnel Records Center (NPRC) search morning reports for this unit and the units he was part of prior to and after the timeframe he states he was in the RVN, and that the Joint Services Records Research Center (JSRRC) search unit records to include rosters for these units. The Board further directed that the Defense Finance and Accounting System (DFAS) be contacted for payroll records and information. The Veteran indicated that he was not assigned to a unit in the RVN and was assigned to another unit only following the timeframe he states he was in the RVN. The Appeals Management Center (AMC) accordingly requested the NPRC and JSRRC search solely with respect to the unit the Veteran was assigned to prior to the timeframe he states he was in the RVN. Responses were provided. DFAS was not contacted, since a senior development coordinator at the AMC noted that DFAS does not have unit information and therefore would not reveal whether or not the Veteran was in the RVN. These conclusions by the AMC equate to there being less than strict compliance with the Board's remand. However, substantial rather than strict compliance is all that is necessary. Dyment v. West, 13 Vet. App. 141 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). Each of the AMC's conclusions is logical and reasonable. The first was based on input from the Veteran. The second was made by an employee with expertise to do so. Finally, the Veteran and his representative have been informed of both conclusions but have challenged neither. Of import, the Veteran's representative argues that VA must make attempts to obtain passenger rosters for all Trans World Airlines (TWA) flights departing Oakland, California, for the RVN during the timeframe the Veteran recounts being there since this is how he recounts having gotten there. Doing so would require another remand. Remands which impose additional burdens on VA with no benefit flowing to the claimant are unnecessary and thus to be avoided, however. Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991). It is common knowledge that TWA no longer exists. The passenger rosters of relevance further are now over 47 years old. There accordingly is very little chance that the development contemplated by the Veteran's representative would result in any pertinent information being obtained. VA treatment records regarding the Veteran have been obtained by VA. Treatment records from a private physician, the only one identified by him, also were obtained following his authorization of their release to VA. No VA medical examination has been conducted, and no VA medical opinion has been obtained. However, neither is necessary. Discussed below is that it is undisputed that the Veteran currently has type II DM and had prostate cancer such that he now has residuals thereof. He asserts only that he served in the RVN, and thus that he was exposed to an herbicide agent during service. No examination or opinion is needed in this regard because service connection would be granted without more if he did serve there. Whether or not he did is not a medical question, and therefore a medical opinion is not required. As to service connection otherwise, either a VA medical examination or opinion are not needed because they similarly would not be helpful or because there is no indication that the Veteran's type II DM and prostate cancer to include residuals thereof may be associated with a service event, injury, or disease. Neither the Veteran nor his representative has identified any other development necessary for a fair adjudication of the claim decided herein that has not been addressed above. The record also does not indicate any other development. Therefore, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Adjudication thus may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, there generally must be a current disability, the in-service incurrence or aggravation of an injury or disease, and a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after separation from service if it was incurred in service. 38 C.F.R. § 3.303(d). DM is a chronic disease, as are malignant tumors. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. Id. Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases and diseases associated with exposure to an herbicide agent such as Agent Orange. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A requirement for both is that service must have been for 90 days or more either during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). With respect to diseases associated with exposure to an herbicide agent, exposure during service is required. Such exposure is presumed if there was service in the RVN between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Lastly, the chronic disease or disease associated with exposure to an herbicide agent must be manifested within a particular time period. Manifestation of type II (also known as adult-onset) DM and of prostate cancer, both of which have been associated with exposure to an herbicide agent, must be to a compensable degree at any time after service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Manifestation of a chronic disease, though not necessarily diagnosis, also must be to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease or disease associated with exposure to an herbicide agent must be taken into consideration even if the aforementioned requirements are met. 38 C.F.R. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). Where service connection cannot be presumed, service connection still may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997); McCartt, 12 Vet. App. at 164. Proof of actual as opposed to presumed exposure to an herbicide agent thus must be considered. The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence (also known as non-medical evidence) may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any point, the claimant is afforded the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant thus prevails on that point when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). In light of the evidence, type II DM and prostate cancer residuals are among the Veteran's current disabilities. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in January 2006. VA treatment records dated in 2004 and 2005 and the private treatment records, which are dated in 1999, contain a diagnosis of DM. The VA treatment records also reflect the Veteran's reports that his DM developed during his adulthood. As such, he had type II DM prior to filing this claim. He also has had it during the entire pendency of this claim since, as a chronic disease, it remains present once manifest. With respect to prostate cancer, the 1999 private treatment records reveal a diagnosis and treatment in the form of a prostatectomy. The VA treatment records indicate that the Veteran has a history of prostate cancer in 1998. His was cured of this cancer prior to filing his claim, in other words. It could not have reoccurred at any time during the pendency of his claim since his prostate has been removed. However, residuals may be persistently present following manifestation of prostate cancer. The VA treatment records do not mention any specific residuals. No treatment records, whether VA or private, are dated contemporaneous to or after January 2006. Yet it is inferred from the fact that the Veteran filed his claim that he experiences prostate cancer residuals. That the Veteran served more than 90 days both after December 31, 1946, and during a period of war is undisputed. His service spanned approximately six years during the 1960s. At least a few years were during the Vietnam era. Indeed, this era is defined as the period beginning on August 5, 1964, and ending on May 7, 1975, for Veterans who did not serve in the RVN and the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the RVN during that period. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f). There nevertheless is no indication that the Veteran had type II DM or prostate cancer to a compensable degree by June 1968 when he had been separated from service for one year. Neither the Veteran nor his representative has made such a contention. No VA or private treatment records dated between June 1967 and June 1968 exist. The Veteran specifically reported in the VA treatment records that do exist that he developed type II DM between 10 and 20 years prior thereto. This equates to between 1984-1985 and 1994-1995, years after June 1968. It is reiterated that the Veteran's prostate cancer was diagnosed in the private treatment records that do exist which are dated decades after June 1968 in the late 1990's decades. Service connection on the basis of a chronic disease thus cannot be presumed. Similarly, service connection cannot be established generally or on the basis of chronicity or continuity of symptomatology. Service treatment records include the Veteran's June 1961 entrance examination, his February 1967 separation examination, and instances in which he was seen by medical personnel during service. The entrance examination is silent with respect to type II DM and prostate cancer. As such, the Veteran is presumed to have been in sound condition in these regards when he began his service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This matter is one of incurrence rather than aggravation, in other words. The instances in which the Veteran was seen by medical personnel during service and his separation examination are silent concerning type II DM or prostate cancer. Indeed, there was no diagnosis or even suspicion in these regards. There also is silence with respect to an injury, disease, or event to include actual exposure to an herbicide agent with the potential to led to type II DM or prostate cancer. Neither the Veteran nor his representative has contended to the contrary. This forecloses establishing service connection in general, rendering it unnecessary to consider nexus. Chronicity in particular but also continuity of symptomatology additionally are foreclosed because the requirement of both that there be at least some in-service manifestation is not met. Further, neither the Veteran nor his representative has contended that type II DM or prostate cancer was incurred during service despite having been diagnosed after his separation therefrom. The lengthy period between the first indication of each and his separation from service is significant in this regard and in signifying a lack of continuity of symptomatology following service. Maxson v. West, 12 Vet. App. 453 (1999). That leaves presumptive service connection for type II DM and prostate cancer residuals as diseases associated with exposure to an herbicide agent. The Veteran already has been found to have served for more than 90 days during a period of war after December 31 1946, and to have manifested type II DM and prostate cancer following his service. It is conceded that the type II DM is to a compensable degree of 10 percent or more, while the prostate cancer was to a compensable degree of 10 percent or more. The VA treatment records contain the Veteran's report that he takes insulin, although it was noted that there was no indication of such. These records, in any event, also reference nutrition education. If service connection is granted for type II DM, an initial rating of at least 10 percent thus would be assigned. 38 C.F.R. § 4.120, Diagnostic Code 7913. Prostate cancer is assigned a 100 percent initial rating for a period of time, followed by a rating for the predominant residuals. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Such rating can be either noncompensable or 10 percent or more. 38 C.F.R. § 4.115a. It therefore is unknown whether or not a compensable initial rating would be assigned if service connection is granted for prostate cancer residuals. However, this is of no consequence. The Veteran clearly manifested prostate cancer which warrants a total rating even though he will not receive this rating since he did not file this claim until years after he was cured. Given the aforementioned, service connection will be granted if the Veteran was exposed to an herbicide agent during service but will be denied if he was not exposed to an herbicide agent during service. He contends that such exposure should be presumed since he served in the RVN after January 9, 1962, and prior to his June 1967 separation, which is prior to May 7, 1975. He specifically contends in various statements that he took left Fort Lee, Virginia, and arrived in Oakland, California, where he took a TWA flight to Cam Ranh Bay in the RVN in 1965 or 1966. He recounts that he stayed there between three days and two weeks because there were no orders for him to be there and/or because his mother and wife contacted the Red Cross unbeknownst to him and got him out of serving there since he already had one brother serving there and another brother serving in Thailand. Finally, he indicates that he went from the RVN to Alaska. Service personnel records confirm that the Veteran was in Germany from October 1961 to July 1965 and that he was at Fort Lee, Virginia, with Company B of the 94th Quartermaster Battalion "(DS)" from July 1965 to January 21, 1966. An Installation Clearance Record documenting preparation to be transferred was signed by him on that date. Service personnel records further confirm that he arrived in Alaska on March 8 or 9, 1966, and was assigned to the "Log Con Cen" US Army Alaska Support Command. Of note is that only one record mentions March 8 while all others mention March 9. Service treatment records, namely two entitled Health Record - Abstract of Service, add that Fort Richardson was his specific arrival location on March 9, 1966. The only period of time during which the Veteran's contention could have occurred therefore is between January 21, 1966, and March 8 or 9, 1966, with March 9 being more likely. The Veteran's DD-214s show that he had foreign service in Germany as well as service in Alaska, but service in the RVN whether during the aforementioned period or otherwise is not shown. It was noted that he received the National Defense Service Medal. Yet this medal does not confirm or even suggest service in the RVN. No medals indicative of service in the RVN were awarded to him. No reference is made to RVN service during the aforementioned period in the service personnel records. Rather, one such record conveys that the Veteran did not have RVN service. A US Army Request for National Agency Check lists his residence as on post at Fort Lee, Virginia, from July 1965 to May 9, 1966. It is clear that this latter date is a typographical error and should read March 9, 1966, as his next residence was listed as starting on that date. Acknowledgement is given to the fact that this list notes his residence in New York, New York, during the timeframe he was in Germany. However, it also notes Army Post Office (APO) during this timeframe. Overseas service readily is inferred therefrom. For the Fort Lee, Virginia, entry during the period of concern, APO is not denoted. An inference of overseas service in the RVN therefore cannot be made. In addition to the above, there are no service treatment records dated between January 21, 1966, and March 8 or 9, 1966. The NPRC responded to VA's request for the Veteran's dates of service in the RVN in by indicating that there is no evidence in his file to substantiate any service there. VA additionally requested that the NPRC search of morning reports for Company B of the 94th Quartermaster Battalion dated from January 1, 1966, to March 8, 1966, for remarks regarding the Veteran going to the RVN. The response received was that this was not shown. Documents referencing the Veteran were attached to the response. Some are illegible, and a personnel roster lists him but does not contain pertinent information. In response to another VA request, the JSRRC reviewed the 1965-1966 unit history for the 94th Quartermaster Battalion. The response was that this unit was stationed at Fort Lee, Virginia. It "was given the mission for activating and training units for overseas deployment" in December 1965, but does not reveal that the unit or members thereof were sent to the RVN. A formal finding was made in June 2013 that service in the RVN could not be verified. Based on the aforementioned, all efforts to obtain information in that regard were deemed exhausted. Further efforts accordingly were deemed futile. Of further import, neither the Veteran's mother, wife, brothers, nor anybody else who may have been aware of his movements during service to include fellow soldiers has submitted a statement on his behalf. His statements therefore are the only evidence of service in the RVN. He is a lay person because there is no indication that he has a medical background. A lay person is competent to relate observations or that which is within his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to recount having gone to the RVN during service since such would have happened to him personally. Credibility factors to take into consideration with respect to lay evidence include interest, self-interest, bias, internal inconsistency, inconsistency with the other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). In its October 2010 decision, the Board highlighted inconsistencies in the Veteran's statements. Yet the Court concluded that these inconsistencies, which primarily included the year he says he was in the RVN over 40 years ago, the number of days he was there, and his spelling of Cam Ranh Bay, are hardly inconsistencies much less inconsistencies significant enough to warrant a negative credibility finding. The Court further concluded that while the Veteran's statements contradict his service personnel records, this does not necessarily make them incredible. The Court, despite the above, did not prohibit another finding that the Veteran's statements are not credible. Once again, the Board makes a negative credibility finding regarding these statements. They largely are consistent with one another, as the Court points out. It is facially plausible that the Veteran went to the RVN. Further, nothing suggests that he has bad character. His demeanor was not observed, since he was not a witness at any hearing before the undersigned. Yet it was concluded by the Court that the Veteran contradicts his service personnel records. At that time, it had been noted that these records did not confirm RVN service. The Board agrees and additionally notes that service treatment records, morning reports, the 94th Quartermaster Battalion unit history, and other documentation pertaining to his service also do not confirm service in the RVN. In July 2013, the Veteran's representative argued that the aforementioned evidence nevertheless does not disprove RVN service. No finding in this regard was made by the Board in October 2010. However, the Board now finds that this evidence does refute RVN service. The previously overlooked service personnel record entitled US Army Request for National Agency Check indeed specifically indicates that the Veteran was stationed at Fort Lee, Virginia, throughout the period he states he went to the RVN. His self-interest finally cannot be ignored. If his lay statements are deemed both competent and credible, service connection would be granted. It is reiterated that a grant would result in his receipt of VA compensation benefits for type II DM and could result in his receipt of VA compensation benefits for prostate cancer residuals. He would experience monetary gain regardless of the strength of his desire for such, in other words. This desire further likely is significant due to the Veteran's report that his health is failing. The Veteran's representative contends that it is conceivable the Veteran got mixed up with soldiers heading to the RVN since his unit was tasked with training them for overseas service. The JSRRC has established that this was the mission of his unit as of December 1965. It is within the realm of possibility, as his representative contends, that he got mixed up with soldiers who completed training and then were sent to the RVN. However, remote possibility and pure speculation are insufficient bases for granting service connection. 38 C.F.R. § 3.102. The Veteran getting mixed up with newly trained soldiers bound for the RVN is not borne out by the service personnel records, service treatment records, morning reports, or other documentation regarding his service. The service personnel records indeed disprove RVN service, as discussed above. The preponderance of the evidence, in sum, is against the Veteran's claim under all applicable theories of entitlement. As such, the benefit of the doubt is inapplicable. Service connection for type II DM, to include as due to in-service herbicide exposure, and for prostate cancer residuals, to include as due to in-service herbicide exposure, is denied. ORDER Service connection for type II DM, to include as due to in-service herbicide exposure, is denied. Service connection for prostate cancer residuals, to include as due to in-service herbicide exposure, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs