Citation Nr: 1335260 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 04-17 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus to include as secondary to exposure to tactical and non-tactical herbicides and insect repellant during service in Thailand. 2. Entitlement to service connection for erectile dysfunction to include as secondary to diabetes mellitus. 3. Entitlement to service connection for urinary frequency to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2006, a Travel Board hearing was held before a Veterans Law Judge sitting at the RO. A transcript of that hearing is associated with the claims file. In October 2007, March 2010 and August 2012, the Board remanded this case for further development. In September 2011, the Board advised the Veteran that the Veterans Law Judge who had conducted the July 2006 hearing had retired. The appellant was offered an opportunity for an additional hearing, however, he responded that he did not wish to appear at a hearing and requested that his case be considered on the evidence of record. FINDINGS OF FACT 1. In-service exposure to herbicides and/or other chemicals has not been established. 2. Diabetes mellitus type II was initially demonstrated many years after service discharge and is not otherwise attributable to service. 3. Erectile dysfunction was not manifest in service and is not otherwise attributable to active service, neither was it caused by nor permanently made worse by a service connected disability. 4. Urinary frequency was not manifest in service and is not otherwise attributable to active service, neither was it caused by nor permanently made worse by a service connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus type II was not incurred or aggravated in-service, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309 (2013). 2. Erectile dysfunction was not incurred in or aggravated by service; neither was it caused nor aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. Urinary frequency was not incurred in or aggravated by service neither was it caused nor aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in January 2002 and December 2007, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. VA attempted to verify on several occasions the appellant's alleged exposure to herbicides. No additional pertinent records are available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of service connection for diabetes mellitus. He also appeals the denial of service connection for erectile dysfunction and urinary frequency which he claims as secondary to diabetes mellitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including diabetes mellitus, may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, however, the claims for service connection were filed before the amendment. As such the current version of 38 C.F.R. § 3.310 is not applicable. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a) (6) (iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, such as diabetes mellitus type II, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a veteran who served in the Republic of Vietnam and who develops type II diabetes mellitus. While the evidence of record shows that the Veteran has type II diabetes mellitus the most probative evidence shows that the appellant did not serve in the Republic of Vietnam under the interpretation of the statute and regulation. The Veteran does not assert, and the evidence is devoid of a showing, that he physically set foot in the Republic of Vietnam. Rather, he contends he was exposed to herbicides while stationed in Thailand while servicing planes that sprayed Agent Orange and/or handling tools that were used to service planes that sprayed Agent Orange. Consequently, the weight of the evidence is against a finding that the Veteran served in the Republic of Vietnam. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e). Service connection for diabetes mellitus is not otherwise warranted. To that end, service treatment records are negative for complaints or diagnoses for diabetes mellitus. Compensably disabling diabetes mellitus was not shown within a year of separation from active duty. Rather, post-service medical evidence reflects that the Veteran was diagnosed with diabetes mellitus more than three decades after separation from active duty. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As noted, the Veteran argues his diabetes mellitus is related to service to include exposure to herbicides. He alleges that the claimed disabilities are due to exposure to herbicides, including Agent Orange, during his service in Thailand from December 2, 1966 to November 24, 1967. Specifically, he argues this exposure took place while stationed in the Air Force as a Material Facilities Specialist at Ubon Airfield in Thailand. He maintains that his job in the flight line tool crib involved servicing planes that sprayed Agent Orange or handling tools that were used to service planes that sprayed Agent Orange. During the 2006 hearing, the Veteran testified that he saw herbicide drums stored on Ubon. His representative argued that the base where he was stationed was sprayed with toxic chemicals, to include commercial insecticides and non-tactical herbicides, to control mosquitoes and to defoliate the base. Significantly, the U. S. Army and Joint Services Records Research Center has consistently found no evidence to corroborate the Veteran's assertions of exposure to herbicides in service. In 2009, it was found that there was no record of exposure. In 2011, they stated that they could not corroborate the Veteran's alleged exposure to herbicides during the time and place of his military service. In March 2013, a search of the Defense Personnel Information and Retrieval System reiterated that the Department of Defense could not verify that the Veteran was exposed to Agent Orange or tactical herbicides during his tour of Ubon, Thailand. A formal finding of lack of information required to corroborate the Veteran's allegation of exposure to tactical and non-tactical herbicides, and insect repellant during service in Thailand, was rendered in July 2013. It was determined that the evidence failed to confirm that the Veteran was exposed to either tactical or non-tactical herbicides (including insect repellant) while in Thailand. Furthermore, while research showed that tactical herbicides were sprayed in 1964 and 1965 in a coastal area near Pranburi, Thailand, Ubon was not on the Department of Defense listing of tactical herbicides sprayed areas and test sites outside the Republic of Vietnam according to its memorandum. In June 2013, the Department of Defense Armed Forces Pest Management Board stated that they did not maintain historical records of routine pesticide/herbicide applications to Department of Defense or foreign military installations and also did not maintain Air Force personnel records. They, however, found one document which clearly stated that herbicides were flown out of Ubon Royal Thai Air Force Base during a time when the Veteran was no longer in theater. They also had no records of mosquito control operations at Ubon before 1973. To the extent that the Veteran's lay statements are being offered to establish herbicide exposure, such evidence must fail. His pleadings do not establish actual exposure. Merely reporting that he serviced planes that he believes sprayed Agent Orange or that he handled tools that were used to service planes that sprayed Agent Orange does not establish exposure. The Board has considered the Veteran's statements regarding the alleged in service exposure. The Veteran's testimony is not competent in this regard, and there is no other evidence in support of the theory that he was exposed to herbicides and/or other chemicals in service. Although VA made repeated efforts to verify the Veteran's assertions, no effort has borne fruit. The Board acknowledges that the VA examiner in September 2009 opined that the Veteran's "definite exposure to chemical spray while he was in Thailand ... would predispose [him] to diabetes mellitus." The Board, however, notes that exposure to chemicals in service has not been verified. As the VA examiner's opinion is based upon an inaccurate history, his opinion lacks probative value. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record). The Board acknowledges that the appellant has submitted literature alleging that herbicides, including Agent Orange, Purple, and Blue, or its contaminants, were used in and around the Ubon Airfield in Thailand. The literature, however, are not specific to the appellant and the findings were not based on the appellant's particular history and circumstances. The Board notes that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, crucially, the articles are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case. On review, the most probative evidence is against a finding that the Veteran's diabetes mellitus is related to active military service or events therein. There is no verified exposure to tactical and non-tactical herbicides, and insect repellant during service in Thailand. Under these circumstances, the claim of entitlement to service connection for diabetes mellitus must be denied. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the competent and probative evidence, however, preponderates against entitlement to service connection for diabetes mellitus type II, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). The Board further finds against the claims of entitlement to service connection for erectile dysfunction and urinary frequency which are claimed as secondary to diabetes mellitus. A review of the record does not indicate, and the Veteran does not allege, that his erectile dysfunction and urinary frequency are directly related to service. The claims folder does not contain any competent evidence relating the Veteran's erectile dysfunction and urinary frequency to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all service treatment records and all VA medical records of file. These records do not include any opinion linking the Veteran's claimed disabilities to service. Therefore, in the absence of any evidence in support thereof, service connection for erectile dysfunction and urinary frequency must be denied on a direct basis. To the extent that the Veteran argues that his erectile dysfunction and urinary frequency are secondary to his diabetes mellitus, service connection for diabetes mellitus has been denied. Accordingly, the claims of entitlement to service connection under this theory of entitlement is meritless and must also be denied. ORDER Entitlement to service connection for diabetes mellitus to include secondary to exposure to tactical and non-tactical herbicides and insect repellant during service in Thailand is denied. Entitlement to service connection for erectile dysfunction to include secondary to diabetes mellitus is denied. Entitlement to service connection for urinary frequency to include secondary to diabetes mellitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs