Citation Nr: 1335783 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-20 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied the claim currently on appeal. The RO stated the Veteran served in the Army from June 1968 to November 1971 and from August 1971 to November 1971. In April 2010, the RO received a Personal Information Exchange System (PIES) response indicating active duty from August 1971 to November 1971. All other service was active duty for training. Service medical records for any time period other than August 1971 to November 1971 are only in the context of Reserve Officer Training Corps (ROTC) training. The service separation from documents a period of active duty from August 1971 to November 1971. Therefore, the Veteran has Veteran status. FINDING OF FACT Diabetes mellitus did not have onset during the Veteran's active service, did not manifest within one year of separation from active service, and is not etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2011 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). VA has a duty to assist the Veteran in the development of a claim. That duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). A medical examination was not provided to the Veteran in this case, nor was a medical opinion obtained. Lacking in this case is evidence establishing an event, injury, or disease which occurred during service which is relevant to the Veteran's claim. The Veteran's sole claim is that herbicides were used or stored at Ft. Benning, Georgia while he was stationed there for active duty from August 1971 to November 1971. However, there evidence of record does not support that claim. In addition, diabetes was not diagnosed during service. Since there is no evidence establishing an event, injury, or disease which occurred during service, VA has no duty to afford the Veteran a medical examination or obtain a medical opinion. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has determined that an examination or medical opinion is not warranted. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In a May 2010 statement, the Veteran explained that the basis for his claim for service connection for diabetes mellitus is his belief that the disease was caused by exposure to an herbicide agent during his military service. He reiterated that contention in his August 2010 notice of disagreement, July 2011 Substantive Appeal, and statement from his representative in October 2011. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of diabetes mellitus during service. 38 C.F.R. § 3.309(e) (2013). A Veteran, who during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or served near the DMZ in Korea between April 1, 1968, and August 31, 1971, shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). In the instant case, the Veteran served with the United States Army from August 1971 to November 1971. The Veteran states that he was exposed to herbicides while stationed at Ft. Benning, Georgia for Officer Basic Training. The Veteran's service personnel and treatment records do not indicate that the Veteran served outside of the United States during his service. The presumption of exposure to herbicides does not attach where, as in this case, the individual only had service in the United States and the service records do not show exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2013) The Veteran has never contended, nor is there any evidence of record, that his diabetes mellitus manifested within one year of separation from active service. Therefore, service connection is not warranted based on the presumption for chronic diseases. The Board also finds that the preponderance of the evidence is against a finding the Veteran was exposed to herbicide agents. The Veteran's statements regarding his exposure to herbicide agents during his military service are insufficient. He stated he was told that Agent Orange was stored at Ft. Benning, Georgia and was used to attempt to clear the post roads of overgrowth. The Veteran also stated that he knew that some type of herbicide was sprayed over the plant growth that kept the growth down but did not totally destroy the plant. The Veteran has provided no evidence that Agent Orange, or any other herbicide agent, was used or stored at Ft. Benning, Georgia. Furthermore, even if it was used or stored, there is no evidence that the Veteran was exposed to it. Additionally, of record is a December 2010 Defense Personnel Records Information Retrieval System (DPRIS) response to a November 2010 RO inquiry, indicating that historical documentation did not document herbicide use or storage at Ft. Benning, Georgia. As with any service connection claim, service connection can be established based on proof of actual causation of the Veteran's diabetes mellitus by an event, injury or disease during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, there is no evidence of record indicating that the Veteran suffered from diabetes mellitus during service for many years after service. Nor is there any competent medical evidence of record showing that the Veteran's diabetes mellitus is related to his service. Private treatment records are of record for the period July 2001 to March 2009. A physician's statement indicates a diagnosis of diabetes mellitus type II since 2004. The records make no reference to the Veteran's service or to exposure to herbicide agents. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus manifested within one year of his separation from active service. Therefore, the presumptive provisions for chronic diseases are not for application. The Veteran has stated that his diabetes is due to service. However, there is no indication that the Veteran or his representative possesses the requisite medical knowledge or training to render a competent opinion involving the etiology of diabetes mellitus. Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, those statements are insufficient to establish a relationship to service. Under certain circumstances lay statements may support a claim for service connection by reporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds no basis for concluding that the Veteran is competent to establish the etiology of diabetes mellitus in the absence of specialized training. In addition, the Veteran's claim of exposure to herbicides is outweighed by the service department finding that herbicide agents were not stored or used at Ft. Benning. In summary, the preponderance of the evidence is against a finding that the Veteran's diabetes mellitus had onset during service or within one year of separation from service. There is no competent evidence of record that the Veteran's diabetes mellitus is related to his service, or any indication of a connection with service, to include claimed exposure to an herbicide agent during service, which is not shown. Accordingly, as the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs