Citation Nr: 1334305	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  11-22 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for Type II diabetes mellitus including as due to exposure to Agent Orange.


REPRESENTATION

Veteran represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

L. Reeder, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 through April 1971, with service in Thailand from February 1970 through June 1970.  His awards include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for Type II diabetes mellitus.


FINDINGS OF FACT

1.  The Veteran was stationed in Thailand during the Vietnam War, but there is no competent and credible evidence that his service there involved exposure to Agent Orange or other herbicides.

2.  The competent and credible evidence does not establish that diabetes mellitus manifested during service or for many years thereafter, nor is there any medical evidence suggesting the condition is related to service. 


CONCLUSION OF LAW

The requirements for establishing service connection for Type II diabetes mellitus have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2013).

The notice requirements apply to all five elements of a service connection claim: 
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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

In this case, the RO provided the Veteran with pre-adjudication notice, in compliance with the VCAA, by letters dated August 2010 and November 2010.  The Veteran was provided all essential notice, had a meaningful opportunity to participate in the development of the claim being decided, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

The VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and to provide a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2013).  In this case, the VA obtained service treatment and personnel records, as well as post-service private treatment records.

The Veteran was not afforded a VA examination regarding his claim of service connection for diabetes mellitus, and no medical opinion has otherwise been obtained.  However, the evidence does not suggest, and the Veteran does not contend, that diabetes mellitus manifested during service or within the year following discharge, or that it is related to service for reasons other than claimed Agent Orange exposure.  Moreover, there is no competent and credible evidence that the Veteran was, in fact, exposed to herbicides as alleged, nor is there any competent evidence suggesting his diabetes is otherwise etiologically related to service.  Thus, the Board finds that obtaining a VA examination or opinion on the issue decided herein is not required.  See 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting medical literature and medical and professional opinions to support his claim.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, 19 Vet. App. 473.

II.  Service Connection 

The Veteran seeks service connection for Type II diabetes mellitus, which he contends manifested as a result of exposure to Agent Orange while he was stationed at Nakhon Phanom Royal Thai Air Force Base in Thailand in 1970.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to establish service connection, there must be competent, credible evidence of (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.  See 38 C.F.R. § 3.303 (2013); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus 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 such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Additionally, VA regulations provide that Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including 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)(iii) (2013).  Section 3.307(d)(6) provides that 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 period beginning on January 9, 1962, and ending on May 7, 1975.  38 C.F.R. § 3.307(d)(6)(i).  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.  Id.  

A Veterans Benefits Administration (VBA) memorandum indicates that herbicides, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era.  As a result, VBA has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases.  

The Board has reviewed and considered all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As an initial matter, the Board finds that the competent and credible evidence of record confirms that the Veteran has a current disability.  The private treatment records associated with the claims file show an initial diagnosis of diabetes mellitus in September 2009, and show the Veteran's continued treatment for the disease through 2010.  With a current disability conceded, the issue before the Board becomes whether the Veteran's diabetes is a result of his military service, to include his alleged exposure to Agent Orange in Thailand.

The Board next finds that the Veteran did not serve in the Republic of Vietnam during the Vietnam Era, and that he is not, therefore, entitled to the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii).  The Board acknowledges that the Veteran received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  Although these awards were given to military personnel who served in-country, personnel who served outside of Vietnam in direct combat support were also eligible.  See Department of Defense (DoD) Instruction 
1348.33-M, Manual of Military Decorations and Awards, Volume 3 (Nov. 2010).  The Veteran's service personnel records show that he served in Thailand and Okinawa during the Vietnam Era.  However, there is no probative evidence that demonstrates that he ever served in Vietnam, nor does the Veteran make this contention.

As the Veteran did not serve in the Republic of Vietnam, the Board's analysis focuses on whether the Veteran was exposed to herbicides while stationed in Thailand from February to June 1970, as he contends.  In a December 2010 formal finding, the RO found that the Veteran served in Thailand during the Vietnam Era, but that there was no evidence of actual exposure to herbicides.  The formal finding noted that the Veteran was a truck driver, and that this Military Occupational Specialty (MOS) does not indicate duty on or near the perimeter of the military base.  

When the RO sent a written request in November 2010 to the Veteran asking him to provide information on how and when his in-service job exposed him to herbicides, his response contained only a statement listing the medals he received with a duplicate copy of his DD Form 214 attached.  As previously discussed, receipt of the Vietnam Service Medal and the Republic of Vietnam Campaign Medal is not sufficient evidence of exposure to herbicides under the applicable laws and regulations.  "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Due to the lack of information from the Veteran, the RO found that the evidence of record was insufficient to request verification of his alleged exposure through the United States Joint Services Records Research Center (JSRRC).  

As the record does not contain competent and credible evidence of exposure to herbicides in Thailand, the Veteran's diabetes cannot be a presumptive consequence under that theory of entitlement.  There also was no evidence of diabetes within one year of his discharge from service to warrant presuming it was incurred in service, as the clinical evidence of record suggests that the Veteran received his initial diagnosis in September 2009.  See 38 C.F.R. § 3.309(a).

The Board acknowledges that the Veteran believes he was exposed to Agent Orange during his service in Thailand.  A layperson is competent to report on matters of which he has personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Here, however, there is no indication in the record that the Veteran possesses the necessary expertise to identify chemical compounds such that his observation is sufficient to establish the present of Agent Orange in Thailand and his exposure thereto.  Accordingly, his statement of exposure, standing alone, is insufficient to establish his actual exposure to Agent Orange during his Thailand service. 

If, as here, a veteran is not found to be entitled to a regulatory presumption of service connection, his claim must still be reviewed to determine whether service connection may be established on a direct basis by showing the required causation.  See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994).

The Veteran's service treatment records are negative for complaints or findings pertaining to diabetes mellitus.  As previously stated, the clinical evidence of record indicates that the initial diagnosis of diabetes mellitus was in September 2009, over 35 years after the Veteran's discharge from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).  The Veteran does not contend, and the evidence of record does not show, that he suffered from diabetes during service or within one year following discharge from service.  Further, the Veteran does not allege that his diabetes is etiologically related to service for reasons other than his claimed diabetes exposure, nor is there any medical evidence suggesting such. 

In summary, there is no competent and credible evidence of diabetes in service or within one year following discharge from service, no competent and credible evidence of exposure to herbicides during service, and no competent opinion suggesting the Veteran's diabetes is otherwise etiologically related to service.  Thus, the preponderance of the evidence is against the claim, and the claim for service connection for Type II diabetes mellitus is denied.  

In reaching the conclusion the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

The claim of entitlement to service connection for Type II diabetes mellitus is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs