Citation Nr: 1334567 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-19 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for diabetes mellitus REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or Korea during the Vietnam era. 2. The most probative evidence of record indicates that the Veteran was not exposed to Agent Orange during his service in Guam. 3. Diabetes mellitus was initially documented many years after service, and there is no clinical or lay evidence suggesting the disorder is related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in October 2008, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims: (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In compliance with its duty to assist, the RO associated the Veteran's private treatment records, service treatment records, and service personnel records with the claims file. The Veteran was not provided with a VA examination with respect to his claimed diabetes mellitus. However, the Board finds that a VA examination is not warranted. In determining whether a medical examination must be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. Given the lack of any competent or credible evidence lay or medical evidence of an in-service occurrence of the diabetes mellitus, or of any indication that the disabilities or symptoms of diabetes mellitus, which has many causes, may be associated with service, a remand for a VA examination is not warranted. Indeed, medical records reflect that the Veteran was not diagnosed with diabetes mellitus until February 2007, more than 36 years after he served left the service. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Merits of the Claim The contends that his diabetes was caused by his exposure to the herbicide Agent Orange while serving on active duty at the U.S. Naval Air Station in Agana, Guam. Initially, the Veteran stated that he was stationed in Guam from May 1969 to August 1970. In a separate statement, however, the Veteran stated that he served in Guam from May 1968 to August 1969. The Board has reviewed the Veteran's personnel records, and these records indicate that he received service performance appraisals in November 1969, May 1970, and August 1970. These appraisals further indicate that he was stationed in Guam when he received them. Based on these records, the Board finds that the "May 1969 to August 1970" is the Veteran's correct period of service in Guam. In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). 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; 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). 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, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. 38 C.F.R. § 3.307(a)(6)(iii). A veteran is entitled to a presumption of service connection if he is diagnosed with type 2 diabetes mellitus as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "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. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). 38 C.F.R. § 3.307 also pertains to service 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 demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307(a)(6)(iv) There is no evidence that the Veteran served in Vietnam or Korea, and the Veteran does not contend such. As the Veteran did not serve in Vietnam or in or near the DMZ in Korea, the presumption of herbicide exposure is inapplicable. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii); 3.309(e). The fact that a veteran is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his contention that he was exposed to Agent Orange while serving in Guam, the Veteran submitted an article that discussed a Board decision for another veteran which granted service connection for diabetes mellitus secondary to herbicide exposure. He also submitted a redacted copy of the 2005 Board decision. In the 2005 decision, the Board granted service connection for diabetes based on that veteran's service in Guam. Considered in that decision were articles discussing herbicide use in Guam at Andersen Air Force Base (AFB) and that the U.S. Environmental Protection Agency (EPA) listed Andersen AFB as a toxic site with dioxin contaminated soil. The Veteran cites the decision, apparently, for precedential effect. However, prior Board decisions are not precedential and the undersigned is not bound by the determination of another Veterans Law Judge in another case for another veteran, based on other evidence. 38 C.F.R. § 20.1303 (2012). In any event, the Board notes that there is no mention in that 2005 decision of any review of Department of Defense (DoD) documents or any inquiry to the U. S. Army and Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Research of Unit Records) concerning the use of Agent Orange on Guam. As the case presently before the Board contains such information, the facts of this case are readily distinguishable from the facts considered in the 2005 Board decision. In December 2008, the RO contacted a VA Compensation and Pension Policy staff member regarding the Veteran's assertions of being exposed to Agent Orange while serving in Guam. The staff member reviewed the list provided by the DOD regarding herbicide use and test sites outside Vietnam. The staff member indicated that the DOD list did not note any use, testing or storage of tactical herbicides, such as Agent Orange, at any location on Guam, except for a brief period of early experimental herbicide storage there during the Korean War in the early 1950s. In accordance with appropriate development procedures, the RO requested information from the JSRRC regarding the Veteran's assertions. The response from the JSRRC indicated a review of the DOD listing of herbicide spray area and test sites outside of the Republic of Vietnam. The JSRRC stated that Guam is not on the list of location that used, tested, disposed of or stored Agent Orange and other tactical herbicides in 1969 or 1970. Based on a review of the evidence and statements of record, the Board finds that the most probative evidence, i.e., the response from the JSRRC, indicates that Agent Orange/tactical herbicides were not used, tested, stored, or disposed of on Guam. It therefore follows that the Veteran could not have been exposed to such during his service there. While the Veteran is competent to state his activities during service, there is nothing in the record suggesting the Veteran has specialized training or skill in identifying chemical compounds or tactical herbicide agents. The record does not suggest and the Veteran does not contend that he has expertise in chemistry or civil engineering. In any event, the Board finds the conclusion of JSRRC, based on review of DOD documents, that Agent Orange and tactical herbicides were not used, stored, tested, or disposed of in Guam to be more probative than the Veteran's recollections of events occurring more than 40 years ago. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence). For the foregoing reasons, the Board concludes that the criteria for establishing service connection for diabetes mellitus have not been met. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs