Citation Nr: 1335512 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-34 736 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969. In a May 2008 decision, the RO, inter alia, declined to reopen the Veteran's claim for service connection for diabetes mellitus. In July 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issue in October 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2008. In March 2009, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing is of record. Although the Veteran was subsequently advised that the Veterans Law Judge was no longer with the Board and that he could request a new hearing, he has not done so. In November 2009, the Board remanded the claim on appeal for additional development. After accomplishing further action, the Appeals Management Center (AMC) continued to deny the petition (as reflected in an April 2011 supplemental SOC), and returned the matter to the Board for further appellate consideration. In August 2011, the Board granted the Veteran's request to reopen his claim for service connection and remanded the underlying claim for additional development. After accomplishing further action, the AMC denied the claim in an April 2012 supplemental SOC, and returned the matter to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. A review of the documents in such file reveals additional VA treatment records that were considered by the AMC in the April 2012 supplemental SOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Diabetes mellitus is among the diseases for which VA's Secretary has recognized there exists an etiological relationship with herbicides exposure, to include Agent Orange. 3. Although extensive searches have been conducted, persuasive, objective evidence does not establish that Veteran is entitled to a presumption of Agent Orange exposure or that he was actually exposed to Agent Orange during his period of service, as alleged. 4. Diabetes mellitus was not shown in service or for many years thereafter, and there is no persuasive medical evidence or opinion establishing a relationship between this disability and the Veteran's service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a December 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to reopen and substantiate the claim for service connection for diabetes mellitus. This letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Although this information was reiterated in a letter mailed to the Veteran in October 2011, the Board notes that the 2007 letter meets the VCAA's content of notice and timing requirements. The Board further notes that neither the Veteran nor his representative have alleged or demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment and personnel records, as well as extensive VA and private treatment records. In addition, responses from the Joint Services Records Research Center (JSRRC) and Defense Personnel Records Information Retrieval System (DPRIS) regarding the Veteran's purported exposure to herbicides are contained in the claims file, as requested by the Board in its November 2009 and August 2011 remands. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also pursuant to remand directives, the Veteran was advised of the status of those inquiries in July and September 2010 letters and by way of April 2011 and April 2012 supplemental SOCs. Id. The evidence considered in connection with the appeal further includes the transcript of the Board hearing, as well as various written statements provided by the Veteran, and by his representative, on his behalf. The Board finds that no further RO action in connection with any claim, prior to appellate consideration, is required. Specifically as regards the Board hearing, it is noted that, in Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the March 2009 hearing, the Veterans Law Judge enumerated the issues which were then on appeal, which then included claims for service connection for renal cell carcinoma and colon cancer as well as diabetes. The Veteran provided testimony regarding his alleged layover in Saigon on the way to Thailand and about his duties in Thailand, including his contention that he worked near areas that had been treated with herbicides. The Veterans Law Judge inquired as to those duties and as to whether he had any evidence that would support his assertions as to a relationship between his service and his current disabilities. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Moreover, as noted above, the Veteran has not elected a second hearing in light of the retirement of the Veterans Law Judge who conducted the hearing. As such, the Board finds that, consistent with Bryant, the hearing was legally sufficient. 38 C.F.R. 3.103(c)(2). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. The Veteran specifically reported in January 2010 and October 2011 letters that he did not have any further evidence or information to provide in regard to his foreign military service. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran contends that his diabetes mellitus was caused by his exposure to herbicides while working at Takhil Air Force Base Thailand. He further contends that he is entitled to a presumption of exposure to herbicide exposure due to a layover in Saigon, Vietnam. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases, to include diabetes mellitus, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for diabetes mellitus), 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; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) . The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As diabetes mellitus is listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) are applicable here. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 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, including diabetes mellitus, 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 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. The above-cited provisions specifically apply to Vietnam Era veterans, and have been extended to veterans who served near the Korean demilitarized zone (DMZ). See 38 C.F.R. § 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv). Service connection for a disability claimed as due to herbicide exposure may also be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. As noted above, the Veteran asserts that he is entitled to presumptive service connection on the basis that his flight to Thailand had a layover in Saigon. Personnel records also establish that the Veteran served in Thailand. When a Veteran presents evidence of Thailand service in such a claim, VA's Adjudication Procedural Manual, M21-1MR, directs adjudicators to determine at which air base the Veteran was stationed and, if stationed at certain identified air bases - the list of which includes Takhil Royal Thai Air Force Base - whether the Veteran served as security policeman, security patrol dog handler, member of the security police squadron or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. If the record does not establish that the Veteran had such duties along the perimeter, he is to be asked for the approximate dates, locations and nature of the alleged exposure. Information received by the Veteran is to be provided to the JSRRC for verification of exposure to herbicides, if the Veteran has provided sufficient information to permit such a search by the JSRRC. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). Here, the Veteran's service record reflect that, at the time of the July 1965 enlistment examination and the January 1969 separation examination, the Veteran did not have any relevant abnormalities and there was no sugar in his urine. He also denied having sugar in his urine on a self report of medical history completed in January 1969. His personnel records reflect that he served in Thailand from August 1967 to August 1968 and was stationed at Takhil Royal Thai Air Force Base (RTAFB). His "Airman Military Record" reflects that he traveled unaccompanied to Thailand. Although there is no Travel Claim in the file pertinent to his travel to Thailand, an August 1969 "Permanent Change of Station Order" reflects that he traveled by military aircraft when departing Thailand. VA and private treatment records reflect that the Veteran was diagnosed with diabetes mellitus in 2001, more than thirty years after he completed active duty. VA and private records both reflect regular assessment and treatment of diabetes from the time of diagnosis. In May 2004, the Veteran wrote to VA and contended that he was entitled to service connection for diabetes based on exposure to Agent Orange because he was "stationed in Takhil, Thailand where [he] worked on the planes that flew missions into and out of Vietnam." He stated that his close contact with those airplanes resulted in contact with Agent Orange. In a July 2004 statement, he alleged that "planes from this base sprayed in Vietnam" and that "this base sprayed in and around with herbicides to kill undergrowth." He stated, as reflected by his personnel records, that he was a crew chief. In August 2004, the Veteran submitted an Internet article, titled "Agent Orange Fact Sheet," to VA. The article stated that tests of Agent Orange were conducted in Thailand "before the chemicals were given to the RVN." A separate article, titled "Dioxin Research at the National Institute of Environmental Health Sciences (NIEHS)" observes that studies have shown an "elevation in diabetes in serviceman exposed to dioxin contaminated Agent Orange." The Veteran has also forwarded VA an August 2004 email from an unidentified individual stating that "while guarding the ammo dump, I observed several 55 gallon drums marked Agent Orange." The email does not identify the location of the ammo dump. In September 2004, the Veteran again wrote to VA and contended that Takhil air base was "sprayed around it to kill the foliage around it." He also reported that he was "exposed to the '?' they [the planes he worked on] carried - bombs or whatever on these crafts." In December 2007, the Veteran filed another claim with VA and stated that he, while on his way to Thailand, was laid over in Saigon. He also again alleged that he had been exposed to herbicides used at Takhil RTAFB. Subsequently, in March 2008, the Veteran mailed VA a copy of a June 2005 letter from the Department of the Air Force stating that it had no knowledge of any herbicides being stored at Takhil RTAFB, but insecticides were used there in 1962 and from 1966 to 1967. The letter also reveals that the Air Force could not "glean information as to exactly which aircraft were used for herbicide defoliation," but noted that base commanders in Thailand were "at liberty to use herbicides for defoliation around their activities... with no accountability required." In addition to the letter, the Veteran submitted a map of "Pacific Airlift Flow Patterns" and an excerpt from a declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand (the CHECO Report). The excerpt reflects that Agent Orange was tested in Thailand from 1964 to 1965 and that permission was given to use herbicides at the perimeter of bases in Thailand in 1969. In later March 2008, an email from VA's Compensation and Pension Service summarizes information received from the Department of Defense. The email states that "there is no evidence for the type [of herbicide] used" at the perimeters of bases in Thailand. The Veteran was afforded a VA Agent Orange protocol examination in March 2008. The report of that examination reflects that the Veteran stated "he served in Vietnam from August of 1967 to August of 1968 for a total of 13 months." Although the physician noted multiple diagnoses, he did not attribute any diagnoses to herbicide exposure. In March 2009, the Veteran testified before a Veterans Law Judge. He reported that he was an aircraft mechanic crew chief during service. He testified that he served in Thailand, but, while en route to Thailand, his airplane stopped in Saigon for approximately four hours, during which he did not get out of the aircraft. The Veteran also stated that the "undergrowth" "around the barracks, around the flight line" of the base in Thailand "was turning yellow" and "looked like it had been sprayed." However, he also testified that he never witnessed any spraying and, in contrast to his July 2004 statement, reported that he did not work on any aircraft that dispensed Agent Orange. He contended that he had been exposed to Agent Orange as a result of his layover in Saigon and his service on the base in Thailand, but stated that no physician had correlated any of his current diagnoses to herbicide exposure. In a January 2010 letter, the Veteran reported that he did not have any further information about his layover in Vietnam or his service in Thailand. A February 2010 memorandum from the Veterans Benefits Administration on the subject of herbicide use in Thailand reveals that "limited testing of tactical herbicides" was conducted in that country in 1964, but not near any U.S. military installation. Further, "tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand" although "there are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era." The memorandum observes that the CHECO report verifies such use of commercial herbicides and notes, as a result, if a Veteran "regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides." However, "there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand." The memorandum also observes that, in regard to claims of contact to herbicides from aircraft that had been near Agent Orange, "there are no studies that we are aware of showing harmful effects for any such secondary or remote herbicide contact." The Veteran subsequently wrote again to VA. In the undated letter, he contended that when he flew from the United States to Thailand, he traveled by commercial airline - specifically World Air - on a flight that went from Travis AFB to Hickam AFB to Guam to Clark AFB to Saigon, and finally to Bangkok. He reported that "the doors were open" on the plane while it was landed in Saigon. He stated that he did not have any other evidence to support his claim, but noted two prior decisions issued by the Board indicated support for a favorable disposition. However, the Board notes that such cases are not precedential as "each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." 38 C.F.R. § 20.1303. An August 2010 VA Memorandum specifies that the Veteran's allegation of service in Vietnam could not be corroborated after multiple PIES (Personnel Information Exchange System) inquiries. Another VA Memorandum issued in January 2011 states that the Veteran's allegation of contact with Agent Orange could not be substantiated on the basis of his service in Thailand or alleged layover in Vietnam; the memorandum notes that unsuccessful inquiry was made to the JSRRC. In an October 2011 letter, the Veteran again stated that he had no additional information or evidence to provide to VA regarding his military service. He again contended that he had been on a flight that was laid over in Saigon and that he was exposed to herbicides used on Takhil RTAFB. VA issued another memorandum in February 2012 indicating that VA had made additional attempts to confirm the Veteran's flight plan via contact with the Air Force Historical Research Agency. The memorandum reflects that agency stated that some flights stopped in Vietnam and some flights did not and, without the exact flight number, the Veteran's flight path could not be confirmed. Although stating that passenger manifests were destroyed 90 days after each flight, so his presence on an aircraft could not be determined by searching manifests, the memorandum also reveals that multiple flight paths used in 1967 and 1968. One such flight path is the same as the path identified by the Veteran: Travis to Hickam to Guam to Clark to Tan Son Nhut (Saigon) to Bangkok. The memorandum also reflects that no unit histories indicated that any tactical herbicides were used at Takhil or that the Veteran's duties would have taken him near the perimeter of that base. In this case, there simply is no persuasive, objective evidence to establish that the Veteran was actually exposed to herbicides in Thailand or Vietnam or that he had any service that would avail him of the regulatory presumption of exposure to herbicides. In this case, extensive searches have been conducted in an attempt to resolve the question of whether the Veteran had actual in-service herbicide exposure while he served in Thailand, but, collectively, the results of such searches weigh against a finding of actual exposure. Regardless of the Veteran's contradictory statements as to working on aircraft that was contaminated with Agent Orange, the 2010 memorandum from the Veterans Benefits Administration states that no studies have shown harmful effects resulting from such secondary contact. In regard to his contention that he came into contact with such herbicide while working inside Takhil RTAFB, the Board notes that the Veteran has reported seeing vegetation around Takhil RTAFB that was yellow, and thus he believed it appeared to have been sprayed with Agent Orange. However, the CHECO Report, the memorandum from the Veterans Benefits Administration, and the March 2008 email from the VA Compensation and Pension Service all reflect that tactical herbicides were used in Vietnam, not Thailand, and that, in Thailand, commercial herbicides were used for vegetation control at the perimeter of air bases. Moreover, the excerpt from the CHECO report provided to VA by the Veteran indicates that permission was not given to use herbicides at the perimeter of bases in Thailand until 1969, the year after he left Thailand. The Board also notes that the Veteran has not reported that he performed his duties along the base perimeter, but has reported that he worked on the flight line, which is supported by his service records. These resources - the CHECO report, and the information from the Veterans Benefits Administration and VA Compensation and Pension Service - are objective and based on historical data and official Department of Defense records. As such, the Board finds that these resources constitute the most probative evidence on the question of actual herbicide exposure in Thailand. The Board notes that, as a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, and thus is competent to relate his occupational duties. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994), and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). However, although the Veteran has asserted that he saw yellow vegetation around Takhil RTAFB and contended that such yellowing was the result of herbicide use, he also has admitted that he never witnessed any actual spraying. He also indicated in a July 2004 statement that he worked on aircraft that were contaminated with Agent Orange, but stated the opposite at the March 2009 hearing. As his lay testimony on the topic of his alleged herbicide exposure while serving in Thailand conflicts with itself and with other evidence of record, the Board finds it not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). However, in regard to the Veteran's contention that he is entitled to the presumptive provisions of 38 C.F.R. § 3.307 because his flight to Thailand was laid over in Saigon for four hours, the Board observes that he has provided a consistent account of that travel and has reported a flight path identical to a flight plan that the Air Force Historical Research Agency stated was used during the time he was on active duty. As the Veteran is competent to testify to his travel arrangements and his account is both consistent with the circumstances of his service and supported by evidence from the Air Force Historical Research Agency, the Board finds that portion of his testimony credible. Caluza, 7 Vet. App. 498. However, the Board does not find that a four hour layover, during which the Veteran admits that he did not deplane, constitutes "service in Vietnam," as defined in 38 C.F.R. § 3.313(a), for the purposes of applying the presumptive provisions of 38 C.F.R. § 3.307. 38 C.F.R. § 3.313(a) provides that 'service in Vietnam' includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. However, 38 C.F.R. § 3.313 was promulgated for purposes of implementing VA's determination that there was a relationship between Vietnam service and certain illnesses. The pertinent Federal Register notice indicated that the Secretary's decision was based on a March 1990 study by the Centers for Disease Control (CDC) that focused on "the health of Americans who were stationed in Vietnam." 55 Fed. Reg. 25,339 (1990) (emphasis added). Veterans whose only service with respect to Vietnam was in Vietnamese airspace were excluded from the study. As observed by VA's General Counsel, "it is reasonable to assume that inclusion within the scope of the regulation of such veterans was intended to assure that all veterans who may have shared the same experience as those included in the Selected Cancers Study group would be compensated." VA General Counsel Opinion 07-93 (emphasis added). As noted in the preamble to the Federal Register in which VA amended regulations concerning presumptive service connection to include diabetes mellitus, VA found "no basis to conclude that Congress intended to broaden" "VA's regulatory definition of "Service in the Republic of Vietnam." 66 Fed. Reg. 89, 23166 (2001). Plainly, an individual who experienced a four hour layover in Vietnam and did not even leave the aircraft, was not, even if the aircraft door was open during that layover, similarly situated as an individual who was stationed in Vietnam. As such, the Veteran has not established how such a layover constitutes Vietnam service as defined by 38 C.F.R. § 3.313. As, on these facts, neither presumed nor actual in-service exposure to herbicides, to include Agent Orange, is warranted or shown, the Board has considered the claim for service connection for diabetes mellitus disorder under other theories of entitlement. Combee, 34 F. 3d at 1044. However, as explained below, the Board also finds that no other legal theory provides a basis for an award of service connection for these disabilities at issue. Here, the Veteran's service treatment records reflect no complaints, findings, or diagnoses pertinent to diabetes mellitus. No abnormalities with respect to such condition was noted in the service discharge examination and the Veteran has not contended that his diabetes mellitus was present during service. The post-service clinical evidence reflects that diabetes mellitus was not diagnosed until 2001. Absent competent evidence indicating diabetes mellitus within one year of the Veteran's separation from service, the Board finds that service connection may not be awarded on a presumptive basis as a chronic disease defined in 38 C.F.R. § 3.309(a). The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability (i.e., at least 31 years in this case) is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, the lack of any evidence (or even lay assertions) of symptoms during service which have continued to the present day preponderates against awarding service connection on the basis of chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Moreover, the Board, above found the Veteran's reports of being exposed to herbicides during service not credible, he has testified that no medical professional has associated his diabetes mellitus to his in-service experiences, and no medical treatment records reflect any such opinion, or even comment, to that effect. Moreover, on this record, VA is not required to obtain a medical opinion addressing the etiology of the Veteran's diabetes mellitus. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has a current disability (diabetes mellitus), but there is nothing to indicate that disability may be associated with an event, injury, or disease in service. As previously discussed, the Veteran himself does not contend that he experienced any symptoms related to that disability began during service or for many decades after service. Additionally, there is no medical or other persuasive evidence which suggests that the current diabetes mellitus is related to service. Further, in the absence of evidence of an in-service disease or injury, a remand for an examination or an opinion as to the etiology of the Veteran's claimed diabetes mellitus would, in essence place the examining physician in the role of fact finder, which is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's diabetes mellitus and his service would necessarily be based solely on the Veteran's uncorroborated assertions regarding what occurred in service advanced in support of this claim (i.e. that he was exposed to herbicide), which the Board has found to not be credible. Such medical opinion, i.e. a medical opinion premised on an unsubstantiated account of a claimant has no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Simply stated, arranging for the Veteran to undergo VA examination or otherwise obtaining a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2012). Therefore, VA has no obligation to obtain any medical opinion(s) commenting upon the etiology of the Veteran's claimed residuals of diabetes mellitus and/or upper respiratory disorder. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Finally, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between the Veteran's diabetes mellitus and service, the Board finds that such assertions provide no basis for allowance of the claim. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific matter of the etiology of the disability here at issue is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Rather, the matter upon which this claim turns is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on such a matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, in this case, lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claim for service connection must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs