Citation Nr: 1335405 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-17 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for Type II Diabetes Mellitus with associated peripheral neuropathy and erectile dysfunction due to herbicide exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1971 to April 1975. This appeal to the Board of Veterans' Appeals (Board) is from a December 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran did not serve in country in Vietnam, meaning either on the landmass or inland waterways, nor did the circumstances of his service involve duty or visitation in Vietnam or to other locations where herbicides were sprayed. 2. His Type II Diabetes Mellitus initially manifested many years after his military service and has not been shown by competent and credible evidence to be related to any event, injury, or disease during his service. CONCLUSION OF LAW The Veteran's Type II Diabetes Mellitus was not incurred in or aggravated by his military service and may not be presumed to have been, including on account of exposure to Agent Orange or other herbicides or toxins in Vietnam or elsewhere. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Standard of Review In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability, i.e., disability rating; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned in the eventuality service connection is granted. See id. at 486; Quartuccio, 16 Vet. App. at 187. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009); however, the U.S. Supreme Court clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. That is, it must be shown the error was more than harmless. Here, prior to initially deciding these claims in December 2009, a June 2009 letter informed the Veteran of all five elements of his claims, gave examples of the types of evidence he could submit in support of his claims, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would support his claims. He therefore received all required notice. VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, a March 2010 Memorandum from the Oakland RO indicated the Veteran's STRs (i.e., these used to be referred to as service medical records (SMRs)) for the duration of his active duty service are unavailable. The Memorandum explained that the procedures to obtain the files had been followed, that all efforts to obtain the needed evidence had been exhausted, and that further attempts would be futile. The Board finds that the RO made sufficient attempts to obtain these records and that further attempts indeed would be futile. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them). The Veteran also was appropriately notified. 38 C.F.R. § 3.159(e)(1). His private treatment records are in the file. He has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claims, so needing to be obtained. Therefore, the duty to assist him in obtaining pertinent records has been satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board realizes the Veteran has not been provided a VA examination in response to his claim of entitlement to service connection for Type II Diabetes Mellitus and residual complications (peripheral neuropathy and erectile dysfunction (ED)). Additionally, no VA medical opinion has been obtained in response to this claim. VA is obliged to provide a VA examination or medical opinion when (1) there is competent evidence that the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates that the current disability or symptoms may be associated with service or a service-connected disability; but (4) there is insufficient medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In both McLendon and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Veteran Court (CAVC) and Federal Circuit Court clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But as discussed below, there is no competent evidence suggesting the Veteran's Type II Diabetes Mellitus is etiologically related to his active military service, particularly the result of exposure to herbicides including the dioxin in Agent Orange. Indeed, there is not the required confirmation of the occurrence of this alleged inciting event (exposure to Agent Orange) during his service, either in Vietnam or elsewhere. Therefore, any examination and opinion requested necessarily would have to consider an alleged event that has not been shown to have actually occurred, so any opinion relating the diabetes to that event, even if offered, necessarily would be relying on an uncorroborated, and therefore unreliable, history, which would undermine entirely the opinion's probative value. VA is not obligated to schedule an examination in this circumstance merely as a matter of course. That claimed precipitating event, since not shown to actually have occurred, thus cannot be the reason he now has diabetes. There simply is no competent and credible evidence indicating there is a nexus or etiological link between his military service - especially his claimed exposure to Agent Orange since not shown to have occurred - and this eventual diagnosis, which did not happen until many years after his service had ended, indeed, well beyond even the one-year presumptive period following the conclusion of his service otherwise allowing for the presumption this condition was incurred during his service. Type II Diabetes Mellitus is subject to two presumptions, the one provided by 38 C.F.R. § 3.309(a) and the other by § 3.309(e). But there is not the required evidence concerning either to warrant the scheduling of a VA compensation examination for a medical opinion. His mere belief that this condition is the result of herbicide exposure is insufficient to trigger the duty to assist by arranging for a VA compensation examination and opinion, as this would circumvent the craftily tailored language of the statutes and regulations governing when examinations and opinions should be obtained. VA is not required to schedule an examination for a medical opinion merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). He has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice or assistance deficiency along the way. Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Accordingly, the Board may proceed with appellate review of these claims. Legal Criteria In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). However, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2009) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases." Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identity the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit Court explained that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above. "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology." Walker, 708 F.3d at 1338-39. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptomatology after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases included in subsection 3.309(a), then the more relaxed continuity of symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. But Diabetes Mellitus is considered to be a chronic condition, per se, so not only subject to this continuity of symptomatology pleading and proof exception of § 3.303(b), but also therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption; however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Type II Diabetes Mellitus (i.e., adult-onset diabetes) also may be service connected on the basis that it is presumptively associated with exposure to herbicide agents. 38 U.S.C.A. § 1116, 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6). First, however, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or at some other location that Agent Orange was used or sprayed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Vietnam service requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii). See also See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 129 S. Ct. 1002 (2009); VAOPGCPREC 27-97. Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162-63 (1997). Type II Diabetes Mellitus is one of the presumptive diseases listed in § 3.309(e), and the Veteran's more recent medical records document his treatment for this condition. In any event, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing entitlement to service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App. 164, 167 (1999). But, to reiterate, in order for the presumption of herbicide exposure to apply, the Veteran must have had qualifying service in the Republic of Vietnam during the Vietnam era or elsewhere where herbicides like Agent Orange were used or sprayed. A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc., but not, say, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. §1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This is a case-by-case determination entirely dependent on the specific type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Analysis The Veteran claims that his Type II Diabetes Mellitus with associated peripheral neuropathy (presumably of his upper and/or lower extremities) and ED are the result of exposure to Agent Orange during his military service. As already noted, Type II Diabetes Mellitus is a condition for which the Veteran may claim presumptive service connection based on exposure to Agent Orange (so under 38 C.F.R. § 3.309(e)), as well as because it is a chronic condition, per se (so also a presumptive condition under the alternate provisions of § 3.309(a)). His STRs unfortunately are unavailable. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). So merely having combat service does not obviate the need for this supporting nexus evidence. Even when the disability does not supposedly derive from combat, but as here the Veteran's STRs are unavailable or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). See also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)). Still, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). According to the evidence of record, the earliest suggestion the Veteran had diabetes was in July 2004, when a review of his symptoms in his private treatment records suggested this condition's presence. His most recent treatment records from November 2006 show he has non-insulin dependent diabetes. So the Board accepts that he has this claimed condition. But to warrant granting presumptive service connection, it still has to be shown he was exposed to Agent Orange during his military service. Regarding exposure to Agent Orange in Vietnam, it is worth repeating that it requires service in country - meaning on the landmass and includes service on the inland waterways - but it does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas v. Peake, 525 F.3d 1168, 1184-86 (Fed. Cir. 2008); 66 Fed. Reg. 23166 (May 8, 2001). What constitutes "inland waterways" is not defined in VA regulations; however, the Board may refer to the VA Adjudication and Procedure Manual (hereinafter, "Manual") for interpretive guidance. The Manual maintains that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. Manual, M21-1MR, Part 4, Subpart. II , ch. 2, sec. C(10)(k) (December 16, 2011). However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides. The Manual does note an exception regarding Veterans who served as a coxswain aboard the ship and reported going ashore during anchorage. Id. In his claim, the Veteran reported that he served aboard the USS Ranger off the coast of Vietnam in 1972 and 1973. He also submitted a "buddy statement" from a fellow service member who stated that the aircraft he and the Veteran had helped to maintain regularly flew support missions over Vietnam, and the aircraft were exposed to Agent Orange caused by drift. To try and verify this reported exposure, the RO sent a records request to the Joint Services Records Research Center (JSRRC) for information regarding the Veteran's off-shore service. According to the JSRRC, there is no evidence that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, the JSRRC could not document or verify that shipboard Veterans were exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. The Veteran and other laypeople are competent to provide evidence about matters of which they have personal knowledge (for example, the Veteran is competent to report that he experienced an event during service or that he had certain symptoms). See Falzone v. Brown, 8 Vet. App. 398, 405-06 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). But he and his friend and fellow serviceman do not profess to have firsthand knowledge of actual exposure to Agent Orange during their service, in any of the manners alleged, only to having this mere suspicion. So their allegations are entirely predicated on supposition and innuendo, not actual fact. Moreover, the JSRRC expressly refuted their notions of exposure to Agent Orange in the capacities and ways claimed. Thus, the Board finds that he and his friend's statements are insufficient to establish that he was exposed to herbicides during his active duty service. Therefore, the Board has no objective evidence to support the Veteran's claim of exposure to tactical herbicide agents, to include Agent Orange, while serving aboard a Navy or Coast Guard ship during the Vietnam era. Because the Board does not concede the Veteran's exposure to herbicides while in active service, presumptive service connection for Type II Diabetes Mellitus due to Agent Orange exposure is inapplicable in this case. That is to say, absent proof of the inciting or precipitating event, his Type II Diabetes Mellitus necessarily cannot be a result or consequence. Additionally, he has not claimed that he developed Type II Diabetes Mellitus during his service, and a review of the post-service medical evidence shows it was first diagnosed sometime around July 2004, so not until long after his service had ended. Therefore, there is no indication from the record that his Type II Diabetes Mellitus was directly incurred during his service. For this same reason, initial showing of the condition long after the conclusion of his service, there equally is no suggestion of its presence - certainly not to the required minimum compensable degree of at least 10-percent disabling - within the initial post-service year, meaning by April 1975, to otherwise warrant presuming it was incurred during his service. Accordingly, the Board finds that the preponderance of the evidence is against his claim and entitlement to service connection for Type II Diabetes Mellitus and the peripheral neuropathy and ED he reportedly has as complications of it. When, as here, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in his favor under 38 C.F.R. § 3.102, so his claim must be denied. ORDER The claim of entitlement to service connection for Type II Diabetes Mellitus with peripheral neuropathy and ED due to herbicide exposure is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs