Citation Nr: 1337322 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-33 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II as a result of exposure to herbicides. 2. Entitlement to service connection for bilateral Charcot joints, claimed as secondary to diabetes mellitus type II. 3. Entitlement to service connection for bilateral foot drop, claimed as secondary to diabetes mellitus type II. 4. Entitlement to service connection for peripheral neuropathy, claimed as secondary to diabetes mellitus type II. 5. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus type II. 6. Entitlement to service connection for cataracts, claimed as secondary to diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in April 2009 and in November 2011, when the case was remanded for additional development of the evidence. The Veteran has submitted an additional document in support of his claim, received at the Board on October 2012. The document has not been reviewed at the Agency of Original Jurisdiction (AOJ). However, the Board finds that the new document is not pertinent to this appeal in that it is a printout of an internet search engine results list of documents containing any of a number of key words; the page does not present any actual information or findings specifically pertinent to demonstrating any of the Veteran's contentions (the printout merely shows that some number of web pages exist which contain some of the Veteran's selected search terms). FINDINGS OF FACT 1. The Veteran is not shown to have served in the Republic of Vietnam during his active service, and is not otherwise shown to have been exposed to herbicide agents during service. 2. Diabetes mellitus type II was not manifested during the Veteran's active duty service or for many years thereafter, nor is such disability otherwise related to the Veteran's active duty service. 3. Bilateral Charcot joints were not manifested during the Veteran's active duty service or for many years thereafter, nor is such disability otherwise related to the Veteran's active duty service. 4. Bilateral foot drop was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service. 5. Peripheral neuropathy was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service. 6. Hypertension was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise related to the Veteran's active duty service. 7. Cataracts were not manifested during the Veteran's active duty service or for many years thereafter, nor are they otherwise related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Bilateral Charcot joints were not incurred in or aggravated by the Veteran's active duty service, nor may such be presumed to be incurred in such service. Neither have bilateral Charcot joints been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 3. Bilateral foot drop was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. Neither has bilateral foot drop been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 4. Peripheral neuropathy was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. Neither has peripheral neuropathy been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 5. Hypertension was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. Neither has hypertension been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 6. Cataracts were not incurred in or aggravated by the Veteran's active duty service, nor may such be presumed to be incurred in such service. Neither have cataracts been caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with proper notice by letters dated in February 2007 and May 2009. The original VCAA notice was issued before the July 2007 rating decision on appeal and was timely; in any event, any deficiency in the timing of any element of the notice was remedied by readjudication of each issue in a subsequent supplemental statement of the case as recently as in September 2012. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notification provided in the letters, collectively, complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records have been obtained, and the Veteran has not contended otherwise. VA has obtained service and VA treatment records, and assisted the Veteran in obtaining evidence including private medical evidence. VA has obtained service department information concerning the Veteran's allegations of herbicide exposure during service at Fort Dix, New Jersey. As discussed in detail below, VA's assistance with regard to the Veteran's allegation of in-service exposure to tactical herbicide was completed in accordance with VA's updated Adjudication Procedure Manual, M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n). With regard to service connection issues being decided herein, the Board finds that VA medical examinations (with nexus opinion) are not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that the standards set forth in McLendon are not met with regard to the issues on appeal in this case. There is no credible evidence of an event, injury, or disease during service or within a presumptive period to satisfy the second McLendon requirement. As discussed below, the evidence in this case establishes that the Veteran is not shown to have been exposed to pertinent herbicide agents during service, and the Veteran is not shown to have had any pertinent manifestations of any claimed disability during service or for many years thereafter (the Veteran does not contend that any claimed disability manifested prior to 1994). Finally, no further development is necessary with regard to the Veteran's claims that he suffers from various disabilities secondary to his diabetes mellitus; service connection may not be granted on this secondary basis in view of the fact that service connection for diabetes mellitus is denied. As such, VA examinations are not necessary. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. The Board finds that the actions directed by the Board's prior remands have been adequately completed in this case. As discussed below, the claims-file now contains documentation of the development requested in the prior remands in accordance with VA's updated Adjudication Procedure Manual, M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n). The Board finds that the actions directed by the prior remands have been completed in substantial compliance with the terms and purposes of those directives. Service Connection The Veteran claims entitlement to service connection for diabetes, claimed as a result of alleged exposure to herbicide agents during military service at Fort Dix, New Jersey. The Veteran also claims entitlement to service connection for bilateral Charcot joints, bilateral foot drop, peripheral neuropathy, hypertension, and cataracts, each of which he claims as secondary to diabetes. The Veteran contends, as explained in correspondence including his January 2007 statement, that while stationed at Fort Dix, New Jersey, he and another soldier were asked to wash out several barrels which the Veteran now believes contained Agent Orange residue from having been used to contain the tactical herbicide. The Veteran recalls that the barrels were black with orange bands around them and that "some have several inches of residue left in bottom" and that the Veteran "didn't know what it was." The Veteran testifies that he washed the barrels for several days and that this involved walking through the runoff barefooted. The Veteran contends that he later came to the conclusion that the barrels contained Agent Orange residue "[f]rom information ... received online" indicating that "Ft. Dix, NJ, was on a list of bases that contained Agent Orange contamination." The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, organic diseases of the nervous system, and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. As the Veteran's claim was not pending prior to the effective date of the revised 38 C.F.R. § 3.310, the revised version of the regulation is for application in this case. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, 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). Diseases associated with such exposure include type II diabetes mellitus. 38 C.F.R. § 3.309(e). This shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Service personnel records are negative for findings that the Veteran served in Vietnam. The Veteran's DD Form 214 indicates that the Veteran's two years of active duty service included no foreign and/or sea service whatsoever. The National Personnel Records Center (NPRC) has also indicated that the Veteran is not shown to have served in Vietnam: a February 2007 response to a Request for Information under PIES (Personnel Information Exchange System) code 034 states: "There is no evidence in this veteran's file to substantiate any service in the Republic of Vietnam." The Veteran's own statements are conflicting with regard to whether he contends that he served in Vietnam. The Veteran's claim was filed in January 2007 with a VA Form 21-526 upon which the Veteran checked to box to respond "No" to the question "Did you serve in Vietnam." However, as noted by the RO, the Veteran also submitted an accompanying statement expressing that his primary contention involved exposure to herbicides at Fort Dix, but that he also "did have a brief TDY in Vietnam in late September / early October of 1967." A September 2006 VA Agent Orange registry examination report also documents this assertion of brief service in Vietnam. However, in March 2007, the Veteran subsequently stated with emphasis that he "is NOT requesting exposure presumptive to Agent Orange due to in country exposure." (Emphasis in original.) Thus, it appears that the Veteran no longer asserts that he had service in-country in Vietnam for the purposes of establishing presumptive exposure to tactical herbicides. The Board finds that the official service department records indicating no service in-country in Vietnam are adequate and probative on this issue and, under the circumstances, the Board finds that the Veteran did not serve in the Republic of Vietnam during his active service. The presumption of exposure to herbicides therefore does not apply. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. Since the Veteran cannot be presumed to have been exposed to herbicides during his military service, such exposure cannot be found to have occurred without affirmative evidence demonstrating such exposure. Failure to establish presumptive service connection based on herbicide exposure does not preclude the Veteran, however, from establishing direct service connection. In Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam and elsewhere, but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In this case, service treatment records are negative for complaints, treatment, or diagnosis of diabetes. The evidence of record, and specifically the Veteran's own description of this disability in his original filing of this claim in January 2007, indicates a diagnostic onset date in December 1992 for diabetes, approximately 24 years after the Veteran's active duty service. This significant gap weighs against finding in-service onset of diabetes. See Maxson v. West, 12 Vet.App. 453, 459 (1999). The Veteran does not argue that his diabetes began in service or proximately thereafter. Again, he asserts that his diabetes had onset after service, but is the result of his alleged exposure to herbicides while being stationed at Fort Dix, New Jersey. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means 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.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA," with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Claimed Herbicide Exposure The Board finds that the evidence of record does not demonstrate that the Veteran was exposed to Agent Orange or other pertinent tactical herbicide agents. The Veteran's personnel records do confirm that he served at Fort Dix, New Jersey during the war in Vietnam. However, the Department of Defense has not established that Agent Orange or tactical herbicide agents were used at Fort Dix during the period of the Veteran's service. VA requested records relating to possible herbicide exposure from the NPRC in April 2007, but none were found. An April 2007 response to a Request for Information under PIES code 036 states: "No records of exposure to herbicides." VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's updated Adjudication Procedure Manual, M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n) directs that a detailed statement of the veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's ("DoD") inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. The specified procedures have now been completed in this case, and the preponderance of the probative evidence is against finding confirmed exposure to a pertinent herbicide agent during this Veteran's military service. In this case, a Department of Defense response was received in July 2007. This response was negative with regard to verifying any pertinent herbicide use during the Veteran's service at Fort Dix. The response states, in pertinent part: "Regarding your veteran claimant, the DoD list does not contain any reference to Ft. Dix, New Jersey. AO use during 1967 was primarily in Vietnam. It is not clear why an Agent Orange barrel would need cleaning on the East Coast of the US." In its April 2009 remand, the Board directed the RO/AMC to contact the JSRRC for verification of exposure to herbicides at Fort Dix, New Jersey. In November 2011, the Board remanded the case again for the same purpose (having determined that a JSRRC verification request had not been actually undertaken or completed). As documented in the claims-file and summarized in a May 2012 memorandum, in March 2012 JSRRC was requested to verify the Veteran's contention that he was exposed to Agent Orange during his service at Fort Dix in 1967. The request to the JSRRC included reference to the Veteran's account of being tasked to clean out empty barrels he understood to have contained Agent Orange. In March 2012, the JSRRC provided a negative response: The U.S. Army historical records available to us do not document the spraying, testing, transporting, storage, or usage of Agent Orange at Fort Dix, New Jersey during the period .... Furthermore, we reviewed the Department of Defense (DOD) listing of herbicide spray areas and test sites and test sites outside the Republic of Vietnam; Fort Dix, New Jersey is not a listed location. Therefore, we are unable to verify or document that [the Veteran was] exposed to Agent Orange or other tactical herbicides while stationed at Fort Dix, New Jersey during the period.... The RO/AMC's May 2012 memorandum contains a formal finding that all procedures and efforts to obtain information corroborating the Veteran's alleged exposure to tactical herbicides have been exhausted, and any further attempts would be futile. Further consideration has also been given to the documents submitted by the Veteran in support of his claim. The Board has reviewed the October 2012 submission of an internet search results printout showing that various web pages contain the terms "Agent Orange" and "Fort Dix," but this does not present any pertinent evidence demonstrating the presence of Agent Orange at Fort Dix. Additionally, the Board has reviewed that list of contaminated military bases submitted by the Veteran in support of his claim filed in January 2007. This printout indicates that the list was printed from an individual's personal website (www.gmasw.com) rather than any official agency or scientific organization. Further significantly, the Board notes that the list's reference to Fort Dix, New Jersey does not actually indicate that Agent Orange or tactical herbicide contamination exists at that location. Rather, the printout's reference to Fort Dix, New Jersey discusses other manners of contamination not pertinent to the Veteran's allegation of tactical herbicide exposure. The information on the submitted printout indicates that a sanitary landfill was placed on the National Priority (Superfund) List due to the presence of organic solvents, that organic solvents and/or petroleum products were located in other sites including a pesticide storage building. None of this information indicates that the Veteran was exposed to tactical herbicides at Fort Dix, nor does any of the information even indicate that tactical herbicides have ever been determined to have been present at Fort Dix. The document submitted to demonstrate toxic findings concerning Fort Dix, New Jersey, does not reference any herbicide agents identified in 38 C.F.R. § 3.307(a)(6). Evidence of contamination at Fort Dix is pertinent to the specific issues in this case only to the extent that such findings may be considered to suggest that the Veteran was exposed to a pertinent herbicide agent during service. Indications that Fort Dix may now be contaminated with various other toxic substances are not sufficient to establish that the Veteran was exposed to a pertinent herbicide agent during service. With regard to the Veteran's statements that he has drawn the conclusion that he was exposed to Agent Orange at Fort Dix, it is not shown that he is competent to opine as to the chemical composition of the contents of the barrels. The objective evidence of record does not support a finding of exposure. The fact that the barrels may have had an orange strip on them does not persuasively show that they contained Agent Orange. More weight is given to the official reports that Agent Orange was not present at Fort Dix at that time. The official service department records showing no presence of tactical herbicides at Fort Dix are most probative. In reviewing the totality of the evidence in this case, the Board must find that the official service department records showing no use or storage of pertinent tactical herbicide at the time and place of the Veteran's pertinent service are highly probative. None of the evidence adequately shows that the Veteran was exposed to a pertinent herbicide agent during service, and the evidence supportive of the Veteran's claim (featuring the Veteran's own testimony) is contradicted by more persuasive probative evidence from multiple reliable official sources in this case. The preponderance of the evidence is against finding that the Veteran was actually exposed to a pertinent herbicide agent during military service. The Board understands the Veteran's contentions, but complete development of the evidence has failed to produce any information that would permit the Board to find that the Veteran is shown to have been actually exposed to pertinent herbicides. Service connection may not be based on a resort to speculation or mere possibility. See 38 C.F.R. § 3.102. The Board may only rely on the applicable law and the facts and circumstances of this particular case. In sum, the Board finds that the evidence does not show that the Veteran was exposed to pertinent herbicide agents during service. Therefore, service connection for diabetes mellitus type II cannot be awarded on the basis of such alleged exposure. Direct Service Connection under 38 C.F.R. §§ 3.303, 3.309(a) As stated above, under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to herbicides under the regulatory presumptions of 38 C.F.R. §§ 3.307 and 3.309, but also must determine whether the disability was otherwise the result of active service. The Board notes initially that because the Veteran's diabetes was first identified many years after service; the Veteran himself asserts (in his January 2007 filing of the claim for service connection) that his diabetes began in or about December 1992. Entitlement to service connection with application of the presumptions with regard to "chronic" disabilities under 3.309(a) is not warranted. Under these presumptions, service connection for diabetes may be granted if demonstrated to a compensable degree within one year of service. In this case, the diabetes mellitus at issue is not shown until more than two decades after service. With respect to entitlement to service connection for diabetes without the application of any statutory or regulatory presumption, the lengthy period following service prior to any shown manifestation of diabetes weighs against a direct theory of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board recognizes the contentions and oral testimony of the Veteran, and acknowledges the Veteran's own belief that his diabetes is causally connected with his time in service. However, while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board has considered the Veteran's testimony regarding lay-observable events, but finds that the most probative evidence concerning the decisive questions in this case is against the Veteran's claim, and that linking diabetes to service requires a medical determination beyond the expertise of a lay person such as the Veteran. In summary, the Veteran's service treatment records, to include the reports from the May 1968 separation examination and medical history collected at that time, make no suggestion of any problems related to diabetes, and the diabetes at issue was not diagnosed for many years after service. No medical evidence appears in the record to suggest that the Veteran suffered from diabetes during service or within one year after service. Therefore, the Veteran's diabetes was not manifested during the Veteran's active service or for many years thereafter, nor is this diabetes shown to be otherwise related to such service. The Board has considered and addressed the Veteran's specified theory of service connection on the basis of exposure to tactical herbicides; the Veteran has not raised any other reasonably specified theories of entitlement. In short, therefore, the Board finds that a preponderance of the evidence is against the claim of entitlement to service for diabetes based on all theories of entitlement. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Disabilities Claimed as Secondary to Diabetes The Veteran claims entitlement to service connection for bilateral Charcot joints, bilateral foot drop, peripheral neuropathy, hypertension, and cataracts, contending that each disability is a result of the diabetes for which he has also sought to establish service connection. Each of these claims of entitlement to service connection essentially features the theory that the disability is a consequence of diabetes mellitus. However, service connection for diabetes is not warranted in this case. The Veteran himself acknowledges, in his filing of this claim in January 2007, that the claimed peripheral neuropathy and hypertension first manifested in December 1992, the claimed bilateral Charcot joints and bilateral foot drop first manifested in December 1999, and the claimed cataracts first manifested in September 2000; the Veteran does not contend that any of these disabilities manifested during military service or within a period of many years thereafter. The Veteran's service treatment records reveal no suggestion of Charcot joints, foot drop, peripheral neuropathy, hypertension, or cataracts; in this regard, the Veteran's May 1968 separation examination report shows no symptoms or pathologies pertinent to these claims were present when the Veteran's period of service concluded. Therefore, the Board finds that the evidence does not support any basis for granting service connection for bilateral Charcot joints, bilateral foot drop, peripheral neuropathy, hypertension, or cataracts. The preponderance of the evidence is against finding any etiological link to service regarding any of these disabilities. The Veteran's primary theory of entitlement to service connection for each of these disabilities features his contention that his each one has been caused or aggravated by diabetes mellitus which, in turn, he alleges should be service-connected on the basis of alleged in-service Agent Orange exposure. Above, the Board has determined that service connection is not warranted for diabetes mellitus. Thus, service-connection for bilateral Charcot joints, bilateral foot drop, peripheral neuropathy, hypertension, and cataracts claimed as secondary to diabetes mellitus is barred as a matter of law. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426 (1994). Conclusion Having determined that the Veteran is not shown to have been exposed to pertinent herbicide agents, no such alleged exposure may serve as a basis upon which service connection for diabetes may be granted in this case. The Veteran has not otherwise articulated any alleged exposure to identify any other possible cause of diabetes during his military service. Neither the evidence nor the Veteran's contentions in this case suggest that diabetes manifested during service, within a year following service, or is otherwise causally related to service other than through the theory involving alleged herbicide exposure. The Board acknowledges the Veteran's strong belief that he was exposed to Agent Orange during service to cause his diabetes mellitus. The evidence submitted by the Veteran in this regard has been carefully reviewed and considered. However, the pertinent evidence from official sources is more probative. In conclusion, service connection is not warranted on any basis for diabetes mellitus or for the claimed secondary disabilities of bilateral Charcot joints, bilateral foot drop, peripheral neuropathy, hypertension, and cataracts. The preponderance of the evidence is against a finding that the Veteran was exposed to herbicides, including Agent Orange, during his active duty service. Further, a preponderance of the evidence is against a finding that any of the Veteran's disabilities on appeal are otherwise related to his active duty service. As such, the benefit-of-the-doubt rule does not apply and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The appeal is denied as to all issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs