Citation Nr: 1340529 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-21 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to November 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an appellant brief dated October 2013 that is pertinent to this appeal. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim have been accomplished. Agent Orange exposure has not been confirmed. 2. The Veteran's diabetes mellitus is unrelated to service and did not manifest in service or within one year of separation from service. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in October 2010. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. VA did not request an examination or opinion because, as analyzed below, it was not warranted by law. There is no evidence that additional records have yet to be requested, or that an examination is in order. Legal Principles Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). If a veteran was exposed to Agent Orange during service, certain listed diseases including diabetes, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed to Agent Orange during such service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran claims that his diabetes is due to herbicide exposure he experienced while serving in Thailand. The Board finds, however, that although the Veteran currently has diabetes, it is unrelated to service. The elements of service connection will be addressed in turn. A December 2008 letter from the Veteran's private physician shows that the Veteran was diagnosed with diabetes in 1992 and October 2010 VA treatment records confirm that the Veteran is receiving treatment for Type 2 diabetes. Thus, the Veteran has a current diagnosis of diabetes. In a May 2008 claim, the Veteran asserted that he was exposed to Agent Orange but in a March 2009 phone call and a March 2010 hearing, he clarified that he never set foot in Vietnam. Service treatment records confirm his absence from Vietnam. Thus, the Veteran is not presumed to have been exposed to herbicides on the basis of exposure in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The absence of service in Vietnam, however, does not preclude a veteran from alleging that he has diabetes that is related to Agent Orange exposure. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The VA Adjudication Procedure Manual, M21-1MR, Part IV (Manual) and the Compensation Service's Memorandum for the Record (Memorandum) provides information regarding developing evidence of herbicide exposure in claims from veterans with Thailand service during the Vietnam Era. These materials state that if a claimed herbicide exposure cannot be resolved based on the information contained in this Memorandum, an inquiry should be made to determine whether there are records showing herbicide exposure. In this case, a request dated July 2008 confirmed that there were no records of exposure to herbicides. In addition, the Memorandum reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. This Memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. While the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand. Further, the Memorandum provides that if a veteran's claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicide in Vietnam did not occur everywhere, and it is inaccurate to state that herbicide covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicide over Vietnam during Operation RANCH HAND. There are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. A recent directive from the VA Office of Public Health and Environmental Hazards indicates that U.S. Army Veterans who provided perimeter security on Royal Thai Air Force Bases anytime between February 28, 1961 and May 7, 1965, may have been exposed to herbicide and may qualify for VA benefits. The directive references a recently declassified 1973 Department of Defense report entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand 1968 to 1972," which states that there was significant use of herbicides on the fenced-in perimeters of certain Thai military bases to remove foliage that provided cover for enemy forces. VA has determined that herbicide used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. In the May 2008 claim, the Veteran asserted that he was stationed in Royal Thai Air Force Base in Takhli from February 1966 to February 1967. In the March 2010 hearing, the Veteran further claimed that while in Thailand, he helped load cargo into planes that carried or sprayed herbicides and that he was exposed to herbicides that were regularly used to kill the grass on the interior of the base. A Form AF 899 confirms that the Veteran volunteered for Thailand in 1966 and service treatment records document that the Veteran received treatment in Thailand in March 1966. The Veteran is competent to report what he experienced through his senses and since his statements are consistent with the evidence of record, the Board finds them credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Caluza v. Brown, 7 Vet. App. 498, 512 (1995). Although the above materials show that some veterans of Thailand were exposed to herbicides, the Board finds that the Veteran was not. The Veteran was not in Thailand during the Operation RANCH HAND insecticide missions from August 1963 to September 1963. Although he was in Thailand during the October 1966 spraying of Malathion, that fact alone is insufficient to establish tactical herbicide exposure. Even though the Veteran claims that he helped load cargo into aircrafts that flew bombing missions over Vietnam, there is no presumption of secondary exposure based on proximity to those aircrafts. Moreover, in the March 2010 hearing, the Veteran stated that he did not handle drums or canisters, within which the herbicides would presumably have been stored. Finally, the Veteran was not stationed in Thailand from February 28, 1961 to May 7, 1965, the time period where veterans engaged in perimeter security could have been exposed to herbicides. Furthermore, there is no evidence showing that the Veteran spent time around the perimeter of Takhli. His DD 214 shows that his military occupational specialty was administrative specialist or general clerk. Although he stated that he was also required to help load cargo into aircrafts, this would not have occurred near the perimeter of the base. To further support his claim of herbicide exposure, the Veteran submitted a number of documents including emails from Thailand veterans claiming to have been service-connected due to herbicide exposure, a report to Congress arguing that herbicides were used in Thailand, and photographs depicting dead grass in the interior of the Takhli base, ostensibly due to herbicides. The Board does not dispute that herbicides were used in Thailand or that some veterans may be service-connected due to herbicide exposure in Thailand. As discussed above, there was limited use of tactical and commercial herbicides in Thailand. The emails, photographs and report, however, do not establish that the Veteran's service corresponded to the specific times and locations that herbicides were used in Thailand. Thus, in this case, there is an inadequate factual foundation upon which to conclude that the Veteran was exposed to herbicides. There is also no evidence that diabetes manifested in service, within the one-year presumptive period for chronic diseases, or that diabetes is directly related to service. The Veteran's service treatment records do not indicate any evidence of diabetes during service. Service examinations noted normal endocrine systems, negative urinalysis and the Veteran reported that had never had sugar or albumin in urine. The earliest post-service evidence of diabetes appears in the December 2008 letter from the Veteran's private doctor stating that the Veteran was diagnosed with diabetes in 1992-about 25 years after leaving service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The only evidence of a possible association between the Veteran's diabetes and service are his conclusory lay statements asserting such a nexus. Given the lack of symptoms of diabetes in service or at separation and the fact that the first evidence of diabetes was about 25 years after service, neither entitlement to service connection for diabetes nor a VA examination as to its etiology is warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus. Therefore the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs