Citation Nr: 1335547 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-06 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for neuropathy. 3. Entitlement to service connection for congestive heart failure. 4. Entitlement to service connection for renal failure. REPRESENTATION Appellant represented by: Paul Bradley, Agent ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1972. He served in Thailand from December 23, 1971 to July 12, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claims of service connection for diabetes mellitus, type II; neuropathy; congestive heart failure; and renal failure. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's diabetes mellitus, type II, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's neuropathy was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 3. The preponderance of the evidence shows that the Veteran's congestive heart failure was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 4. The preponderance of the evidence shows that the Veteran's renal failure was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for neuropathy have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for congestive heart failure have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013). 4. The criteria for service connection for renal failure have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial RO decision by way of a letter sent to the Veteran in September 2011 that informed him of his duty and the VA's duty for obtaining evidence. In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment and personnel records, VA treatment records, and lay statements have been obtained. Medical opinions regarding the Veteran's diabetes mellitus, neuropathy, congestive heart failure, and renal failure are not required because the record before the Board does not indicate that those disabilities had a causal connection or were associated with his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Analysis: Service Connection for Diabetes Mellitus, Neuropathy, Congestive Heart Failure, and Renal Failure As an initial matter, the Board notes that in January 2013 the Veteran's representative submitted a copy of Project CHECO Southeast Asia Report: Base Defense in Thailand, which includes several references to herbicide use on the fenced-in perimeters of Thailand airbases during the Vietnam era. Because this document is a relevant official service department record that existed and had not been associated with the claims file when VA first decided the claim in July 2010, the Board reviews the claim on a de novo basis. 38 C.F.R. § 3.156(c) (2013). The Veteran contends in his December 2012 notice of disagreement and elsewhere that his diabetes mellitus, neuropathy, congestive heart failure, and renal failure all result from herbicide exposure. In prior correspondence dated August 2010, the Veteran asserted that "I believe Agent Orange was used as the USAF base I travelled to and from showed signs of a chemical defoliant used and my whitness [sic] of spraying at least once a month of a type of defoliant in and around my [area of operations]." Similarly, in December 2010 the Veteran asserted that "the area I served [in Thailand] looked a lot like places in Vietnam around the same time. Large areas inside and around the fen[c]e [were] sprayed to keep vegetation down." As an initial matter, the Veteran does not contend, and the evidence of record does not show, complaints, diagnosis, or treatment of diabetes mellitus, neuropathy, congestive heart failure, or renal failure during or within one year of separation from service. Therefore, service connection is not warranted under such theories of service connection. As to the Veteran's assertion of herbicide exposure in Thailand, the Board finds that it is outweighed by the more probative evidence to the contrary. First, the Veteran has not demonstrated that he is competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. 38 C.F.R. § 3.307(a)(6) (2013). Second, the evidence of record is against the finding that the Veteran was exposed to such herbicides during his service. The Veteran served in Thailand from December 23, 1971 to July 12, 1972. In April 2010, the National Personnel Records Center, responding to a search request from VA, found no records of exposure to herbicides for this Veteran. Furthermore, according to the M21-1MR at IV.ii.2.C.10.r, the applicable Department of Defense (DoD) list indicates only that limited testing of tactical herbicides was conducted in Thailand from April 2, 1964 through September 8, 1964-many years before the Veteran's service there. Moreover, to the extent the "Project CHECO" report indicates that herbicides were used in Thailand, it specifically refers to the use of herbicides for vegetation control only at the perimeter of American bases, and the M21-1MR notes that military occupational specialties (MOS) which had regular contact with the base perimeter are security police units, and especially dog handlers. By contrast, the Veteran's DD-214 shows that his MOS was "Instructor" during that period, and his prior DD-214 forms also show no indication of service as a security policeman, dog handler, or other MOS relating to regular contact with the base perimeter. Consequently, the Board finds that the most probative evidence shows that the Veteran was not exposed to any herbicide during his service for which presumptive service connection might apply. 38 C.F.R. § 3.307(a)(6) (2013). Additionally, the Veteran has not demonstrated that he is competent to determine the effects of herbicide exposure on his claimed disorders in any instance in which he would have been exposed to a type of herbicide for which presumptions of service connection do not apply. Thus, even if the Veteran came into contact with a commercial herbicide other than that for which presumptive service connection is applicable, he has not provided any competent evidence that such caused his diabetes mellitus, neuropathy, congestive heart failure, or renal failure. In conclusion, the Board finds that the weight of the evidence is against the claims of service connection for diabetes mellitus, neuropathy, congestive heart failure, and renal failure, including, as applicable, on a presumptive basis due to herbicide exposure. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for diabetes mellitus, type II, is denied. Service connection for neuropathy is denied. Service connection for congestive heart failure is denied. Service connection for renal failure is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs