Citation Nr: 1335486 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-08 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that, in the November 2011 written submission accepted as the notice of disagreement (on a VA Form 9), the Veteran indicated that he wanted a hearing before the Board at the RO. In a letter sent the following month, the RO notified the Veteran that the submission was accepted as the notice of disagreement and that a Board hearing would not be scheduled at that time. The RO further indicated that the Veteran would be able to request a Board hearing at a later date if he remained in disagreement with the RO's decision following another review of the claim. In the March 2012 substantive appeal (VA Form 9), the Veteran stated that he did not want a Board hearing, and he has not submitted any another request for a Board hearing since that time. In light of the foregoing, the Board finds that there is no outstanding hearing request. 38 C.F.R. § 20.704 (2012). A review of the Virtual VA and VBMS electronic claims files reveals additional evidence of the Veteran's ongoing VA treatment for diabetes mellitus (Virtual VA). However, the RO's March 2012 statement of the case (SOC) reflects consideration of this evidence. As such, the Board finds that remand for initial RO review of the evidence in the Virtual VA file is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the claim. FINDINGS OF FACT 1. While the Veteran served during the Vietnam Era, he did not set foot on land in the Republic of Vietnam, he did not serve on the inland waterways of the Republic of Vietnam, and he has not been shown to have been exposed to an herbicide agent (to include Agent Orange) during service. 2. Diabetes mellitus did not manifest in service or for many years thereafter and is unrelated to service. CONCLUSION OF LAW Diabetes mellitus type II was not incurred in service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with notification letters in September 2010, October 2010, and November 2010, prior to the initial decision on the claim in November 2011. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The September 2010 letter notified the Veteran of the evidence necessary to substantiate the claim for service connection, to include the information necessary to support a claim based on herbicide exposure while serving either in-country or outside of the Republic of Vietnam, and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. In April 2011, the RO notified the Veteran of a negative response for records from his private provider, as well as the pending request for VA treatment records dated prior to November 2003. A report of information from that date shows that the Veteran waived further efforts to obtain these VA treatment records and requested that the RO decide the claim based on the record at that time. In addition, the RO informed the Veteran in December 2011 of the ultimate unavailability of these remaining VA treatment records, as documented in the claims file. The RO also requested information from the National Personnel Records Center (NPRC) in regard to the Veteran's claimed in-service herbicide exposure. A negative response was received from NPRC, and as explained in greater detail below, there is no indication that additional development in this regard is warranted in this case. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. Moreover, the record includes written statements provided by the Veteran and his representative. The Board acknowledges that the Veteran was not provided a VA examination in this case to determine the etiology of his diabetes mellitus. As explained in greater detail below, the requirements for obtaining a VA examination are not met in this case because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's service. Specifically, there is no evidence of any disease, injury, or event, including herbicide exposure, to which a current disability could be related. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). VA has further assisted the Veteran throughout the course of this appeal by providing him and his representative with a statement of the case, which informed them of the laws and regulations relevant to the claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As diabetes mellitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). "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. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). VA has validly interpreted the "service in the Republic of Vietnam" language of the statute and regulation as requiring that a veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). To the extent that the presumptive provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) do not apply, a veteran may still attempt to establish direct service connection for diabetes mellitus by evidence demonstrating that the disease was in fact "incurred" during service, i.e. tracing causation to a condition or event during service, or on a presumptive basis for diabetes mellitus manifest to a compensable degree within one year after service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for diabetes mellitus. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of diabetes mellitus or indicative symptoms. In fact, during a February 1972 separation examination, the Veteran's endocrine and genitourinary systems were found to be normal, and urinalysis testing revealed negative results for albumin and sugar. Thus, the medical evidence does not suggest that diabetes mellitus manifested in service. The Veteran has not alleged otherwise. In addition, a review of the post-service medical evidence shows the earliest diagnosis of diabetes mellitus in approximately 1996, by history provided by the Veteran. See, e.g., November 2003; February 2009 VA treatment records. The evidence does not show, and the Veteran does not contend, that he had continuity of symptomatology since service or that his diabetes mellitus developed within one year of his separation. Therefore, the Board concludes that diabetes mellitus did not manifest in service or for many years thereafter. Rather, the Veteran contends that his current diabetes mellitus is a result of herbicide exposure during service. Specifically, he alleges that he was exposed to herbicides while washing and cleaning equipment that had been sent from Vietnam when he was stationed in Europe for five to seven months. See, e.g., October 2010 written statement; March 2012 substantive appeal (VA Form 9); April 2013 representative brief. At this juncture, the Board notes that, in the November 2011 notice of disagreement, the Veteran alleged that his diabetes was due to Agent Orange exposure while in Vietnam. However, the Board finds that this one-time statement is inconsistent with the remainder of the record, to include the Veteran's own assertions throughout the course of the claim, both before and after this submission. See also October 2010 written statement noting that the unit he was assigned to was "removed from Vietnam for having lost [their] colors." In his other submissions, he indicated that he served in Europe and did not assert that he set foot in Vietnam. Moreover, the Veteran's DD-214 specifically indicated that he had only three months and sixteen days of foreign and sea service, which was in Europe. Thus, there is affirmative evidence showing that he served in Europe, rather than Vietnam, as the Veteran has alleged in other submissions. In addition, his representative even noted in an April 2013 informal hearing presentation that the Veteran did not serve in Vietnam. Therefore, the Board finds that the preponderance of the competent, credible, and probative evidence shows that the Veteran did not serve in the Republic of Vietnam during the Vietnam era. Accordingly, he is not presumed to have been exposed to herbicides during his military service. The Board has also considered whether the Veteran may have been exposed to herbicides outside of Vietnam. As previously noted, the Veteran's DD-214 shows that he served in Europe for three months and sixteen days. His military occupational specialty (MOS) was listed as a mason. A December 2010 request for information printout (3101) shows that the RO requested any documents showing exposure to herbicides. However, the NPRC response indicated that there were no records of exposure to herbicides and that all service information had been verified as correct. Moreover, the Board notes that the Veteran has not provided a credible basis for his allegation of herbicide exposure. He has simply reported that he was exposed to Agent Orange based on the nature of his service duties in Europe washing and cleaning equipment from Vietnam. He has not asserted that he personally observed or handled any barrels of herbicide, and he has not presented any evidence to support his assertion of actual exposure. He has relied solely on the fact that the equipment came from Vietnam. Thus, it appears that his allegations are based on pure conjecture. In addition, a VA Memorandum for the Record used in conjunction with VA's Compensation and Pension Service adjudication process provides that "there is no presumption of 'secondary exposure' based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam." The Memorandum also provides that "[a]erial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. . . . Also, there are no studies that [VA is] aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred." See VA Adjudication Procedures Manual Rewrite (M21-1MR), Part IV, Subpart ii, 2.C.10.r, Memorandum for the Record, Subject: Herbicide Use in Thailand during the Vietnam Era. Moreover, England is not listed as a country associated with herbicide (including Agent Orange) testing and storage outside Vietnam as provided to VA by the Department of Defense. See Herbicide Tests and Storage Outside Vietnam, http://www.publichealth.va.gov/exposures/agentorange/tests-storage.asp (accessed October 2013). It is noted that the Department of Defense list does not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc. Nevertheless, the Veteran has not alleged exposure on this basis, and the record does not otherwise suggest that he was so exposed. In addition, VA has been advised by the Department of Defense that records of such small scale, non-tactical herbicide applications have not been kept. See M21-1MR, Part IV, Subpart ii, 2.C.10.r. The Board accordingly finds it unnecessary to contact the Joint Services Records Research Center (JSRRC) to attempt further development, as information from the Department of Defense already indicates that England was not a country associated with herbicide testing and storage, and there is no competent evidence of record to support the Veteran's theory of secondary exposure. In other words, at this point, the Board finds that there is no reasonable possibility that further VA assistance would substantiate the claim. 38 U.S.C.A. § 5103A(a). In summary, the Board finds that the weight of the evidence is against a finding that the Veteran was exposed to herbicides during service. In the absence of such a finding, the Board affords limited probative value to the Veteran's general statement on the issue of a claimed etiology of his diabetes mellitus as related to herbicide exposure, to the extent he made such a contention. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs