Citation Nr: 1336920 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 08-00 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2007 decision by the St. Paul, Minnesota, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for diabetes mellitus type 2 associated with herbicide exposure. The Board remanded the claim in February 2010 and July 2012 for additional development. The requested development has been completed and the matter is again before the Board. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a current diagnosis of diabetes mellitus, type II that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides. CONCLUSION OF LAW Diabetes mellitus, type II, was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to notify and assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. An August 2007 and April 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was advised that he was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also met its duty to assist the Veteran in the development of the claim. The VA treatment records, service treatment records and private records identified have been obtained in the development of the claim. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. The record contains no evidence the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Board concludes an examination is not needed. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between any alleged current diabetes mellitus, type II, and any event, injury, or disease in service. Specifically, there is no evidence of an in-service diagnosis of diabetes mellitus, type II; no showing of continuity of symptomatology from service; the preponderance of the evidence is against exposure to herbicides in service; and no competent and credible evidence otherwise linking diabetes mellitus, type II, to the Veteran's military service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. Based on requests to the U.S. Army & Joint Services Records Research Center (JSRRC), the September 2013 JSRRC response and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board acknowledges JSRRC did not obtain the morning reports. JSRRC explained that efforts to obtain the records would not provide relevant information as such reports would not have the information detailing specific duties performed by unit members transporting vehicles to and from the Korean DMZ, as alleged by the Veteran. A description of morning reports was provided to show that the information the Board sought was would not be contained in such reports. As described by the National Archives and Records Administration (NARA), morning reports detail each day's personnel changes and are an exception based system, only containing information on those individuals who were not present and accounted. Based on the JSRRC's detailed explanation, the Board finds further attempts to obtain such records would be futile. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain diseases, to include diabetes mellitus, type II, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). As there is no evidence or claim that the Veteran was diagnosed with diabetes mellitus, type II, within one year of service the above provision is not applicable. Alternatively, if a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes). Id. The Department of Defense (DoD) has acknowledged that herbicides were used in Korea from April 1968 through July 1969 along an area of the Demilitarized Zone (DMZ), including a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line." The DoD publication with respect to herbicide agent use in Korea during the stated period includes a list of specific military units subordinate to the 2nd Infantry Division and the 3rd Brigade of the 7th Infantry Division that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. See "Herbicide Exposure and Veterans with Covered Service in Korea," 75 Fed. Reg. 53, 202 (August 31, 2010). Field artillery, signal and engineer troops also were supplied as support personnel to various elements of these Infantry Divisions during the time of the confirmed use of Agent Orange. VA adjudicators are directed to assess both medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). A layperson is generally not capable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Analysis The Veteran asserts exposure to herbicide while in Korea caused his current diabetes mellitus, type II beginning in 2005. His military occupational specialty (MOS) was textile repair. He contends he performed other duties while in Korea from March 1969 to April 1970. He reported he worked in a Motor Pool and delivered jeeps and trucks to Inchon, Camp Casey and Camp Humphrey, Korea, Korea along the DMZ. His military records show he was licensed to drive different types of military trucks. See form DA 348. He served in the 335th Maintenance Battalion. The Board acknowledges the Veteran's belief that his current diabetes mellitus was caused by his military service. However, the evidence fails to establish that the Veteran served along the DMZ where herbicides are documented to have been used, as the Ascom District, South Korea (where the Veteran was stationed with the 335th Maintenance Battalion from March 1969 to April 1970) was approximately 26 to 27 miles from the DMZ. Through the Defense Personnel Records Information Retrieval System (DPRIS), the RO sent the Veteran's dates of service in Korea and the Veteran's assertions of delivering army vehicles in the DMZ for a determination as to whether he may have been otherwise exposed to herbicides during his service in Korea. See M21-1MR, part IV, subpart ii, ch. 2, section C, para. 10 (o). A February 2011 and February 2013 response from JSRRC was negative. DPRIS indicated that the Veteran's unit was stationed in Camp Tyler, Ascom District, South Korea, approximately 26 miles from the DMZ. The battalion's mission was to provide support in the form of supply and maintenance to units in the Seoul Area, located approximately 26 miles from the DMZ. The JSRRC processing system indicated the Veteran's unit was located at Camp Grant, Ascom district, South Korea. Both responses reported the histories did not document the use, storage, spraying or transportation of herbicides and that the 335th Maintenance Battalion records did not document any specific duties performed by the unit members along the DMZ. The RO requested morning reports from JSRRC to determine if any specific duties performed by unit members along the DMZ were reported. The JSRRC responded in September 2013 stating that based on a review of the Veteran's claims file and service personnel records, exposure to herbicides on a presumptive bases could not be conceded. According to M21-1MR, part IV, subpart ii, ch. 2, section C, the Veteran served during the period listed, but the unit was not on the list as one or any other military entities that DoD had identified as operating in or near the Korean DMZ during the qualifying time period. Although morning reports were not obtained, efforts to obtain the reports would be futile, as discussed above. In light of the foregoing, the Board finds the Veteran's contentions of multiple trips to the DMZ resulting in exposures in the course of his duties is not supported by the contemporaneous service records. Given that the Veteran's service in Korea was not along the DMZ where herbicides were used and in the absence of other objective evidence of herbicide exposure, exposure to herbicide agents is not presumed and service connection is not warranted on a presumptive basis for diabetes mellitus, type II. The Board notes, notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Hickson v. West, 12 Vet. App. at 253. The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnoses of diabetes mellitus. The Veteran's May 1968 entrance examination had negative urinalysis findings for albumin and sugar. An August 2010 formal finding determined the Veteran's service separation examination was unavailable for review. However, in May 1968 and March 1970 reports of medical history, the Veteran did not indicate a history of diabetes or albumin or sugar in his urine. A statement of medical condition from April 1970 noted a separation examination was conducted in March 1970 and there had been no change in his medical condition. The Veteran was granted medical clearance in an April 1970 document certifying the Veteran was examined. The Veteran was examined post-service for stomach trouble in June of 1970 that resulted in normal findings and a diagnoses of physiological gastrointestinal reaction. The Veteran provided private medical records indicating a current diagnosis of diabetes mellitus, type II. The records indicate the Veteran was first diagnosed with diabetes in September 2005, approximately 35 years after service. Thus, the Veteran had no in-service evidence of diabetes mellitus. Nor does the claims file otherwise include lay evidence of continuity of symptomatolgy since service, or include evidence that a competent medical professional has linked the Veteran's current diabetes mellitus, type II, to his military service. The Board acknowledges the Veteran's assertions that his diabetes mellitus is the result of his military service. Certainly, the Veteran is competent to report sensory or observed symptoms, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He generally is not, however, competent to diagnose a medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current diabetes mellitus, type II, and his military service, to include claimed exposure to herbicides. Thus, his statements regarding any such link are not competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that such a link being made by the Veteran especially problematic in this case where there is almost 35 years between military service and the Veteran's initial diagnosis and the absence of any continuity of symptomatology that has been attributed to the eventual diagnosis of diabetes mellitus. In summary, the Veteran's service treatment records show no diabetes mellitus, type II, in service. The Veteran did not receive treatment for or a diagnosis of diabetes mellitus for approximately 35 years after service. No medical professional has ever attributed the Veteran's diabetes mellitus to his military service, nor is the Veteran competent to make such a link. Based on the foregoing, service connection on a direct basis is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for diabetes mellitus, type II, must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs