Citation Nr: 1313507 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 12-11 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On the Veteran's substantive appeal, received at the RO in May 2012, he requested a Board videoconference hearing at his local VA office. In a subsequent letter sent to the RO in August 2012, the Veteran withdrew his request for the hearing. Accordingly, the hearing request has been withdrawn. 38 C.F.R. § 20.702 (2012). The Board notes that rating decisions dated in October 2009 and March 2010 previously denied the claim for service connection for diabetes mellitus. However, because the Veteran continuously prosecuted those prior claims, the issue is being rendered on the merits. See 38 C.F.R. § 3.156(b). After the appeal was certified to the Board, the Veteran submitted additional evidence and waived initial RO consideration of the evidence, which was associated with the claims file. 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or Korea during the Vietnam era. 2. The most probative evidence of record indicates that the Veteran was not exposed to Agent Orange during his service in Guam. 3. Diabetes mellitus was initially documented many years after service, and there is no clinical or lay evidence suggesting the disorder is related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). A November 2010 letter notified the Veteran of the information and evidence needed to substantiate the claim on appeal. This letter advised the Veteran of what information and evidence must be submitted by him and what information and evidence would be obtained by VA. This letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), service personnel records, private treatment records, and the RO's efforts to confirm the Veteran's claimed exposure to herbicides. In addition, the Veteran and his representative submitted lay evidence and articles to support his claim. The Board recognizes that the Veteran was not afforded a VA examination regarding this claim. However, the Veteran does not argue that his diabetes was diagnosed during service or within one year following discharge from service, or that his diabetes is related to service other than as due to Agent Orange exposure. As a VA examination would not provide information relevant to the question of actual exposure to Agent Orange during service, an examination is not needed to make a determination on this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 C.F.R. § 3.307(a)(6)(iii). A veteran is entitled to a presumption of service connection if he is diagnosed with type 2 diabetes mellitus as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). Recently, 38 C.F.R. § 3.307 was amended to include service between April 1, 1968, and August 31,1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307(a)(6)(iv). The Veteran asserts that he was exposed to herbicides while serving in Guam. In a March 2009 statement, the Veteran stated that he served at the U.S. Naval Magazine in Guam from June 1962 to November 1963. There is no evidence that the Veteran served in Vietnam or Korea and the Veteran does not contend such. As the Veteran did not serve in Vietnam or in or near the DMZ in Korea, the presumption of herbicide exposure is inapplicable. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii); 3.309(e). The fact that a veteran is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his contention that he was exposed to Agent Orange while serving in Guam, the Veteran submitted an article that discussed a Board decision for another veteran which granted service connection for diabetes mellitus secondary to herbicide exposure. He also submitted a redacted copy of the 2005 Board decision. In the decided case, the Board granted service connection for diabetes based on that veteran's service in Guam. Considered in that decision were articles discussing herbicide use in Guam at Andersen Air Force Base (AFB) and that the U.S. Environmental Protection Agency (EPA) listed Andersen AFB as a toxic site with dioxin contaminated soil. By law, Board decisions are nonprecedential and are only binding as to the case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303 (2012). The Board notes that there is no mention in that 2005 decision of any review of Department of Defense (DoD) documents or any inquiry to the U. S. Army and Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Research of Unit Records) concerning the use of Agent Orange on Guam. As the case presently before the Board contains such information, the facts of this case are readily distinguishable from the facts considered in the 2005 Board decision. In a March 2009 written statement, the Veteran stated that his duties were to escort Guamanians to an area around the base in order to clear the foliage. The Veteran states that Agent Orange was used as the spray. In support of his claim that Agent Orange was in Guam, the Veteran submitted a map of Guam showing toxic chemical dumpsites and a list of landfills in Guam, compiled by the EPA and prepared by a professor from the University of Guam. Additional EPA information, submitted by the Veteran's representative in July 2012, discusses contamination of the drinking water found near Andersen AFB in Guam. The article states that some substances which were used in the air bases' operations have been found in the water surrounding the base. However, the article noted that not all materials found can be attributed to the base. None of the substances listed were herbicides or Agent Orange. Another document was submitted regarding a landfill in Guam. However, the article states that there are no accurate records regarding what was dumped in the landfill. An article from the Japan Times, submitted by the Veteran, discusses Agent Orange exposure in Guam and Okinawa. Part of the article focuses on a veteran who served at Guam's Andersen AFB. That veteran states that he "mixed diesel fuel with Agent Orange" which was to be sprayed on jungle overgrowth. The other part of the article focuses on a researcher of military herbicide usage and his findings. In May 2009, the RO contacted a VA Compensation and Pension Policy staff member regarding the Veteran's assertions of being exposed to Agent Orange while serving in Guam. The staff member reviewed the list provided by the DOD regarding herbicide use and test sites outside Vietnam. The staff member indicated that the DOD list did not note "any use, testing or storage of tactical herbicides, such as Agent Orange, at any location on Guam, except for a brief period of early experimental herbicide storage there during the Korean War (1951-1953). However, it was never used at that time in Korea or Guam...". In accordance with appropriate development procedures, the RO requested information from the JSRRC regarding the Veteran's assertions. The December 2010 response from JSRRC indicated a review of the DOD listing of herbicide spray area and test sites outside of the Republic of Vietnam. According to the DOD information, "Agent Orange, and other tactical herbicides, were not used, tested, disposed of or stored on the island of Guam, including all the camps, bases and the US Naval Magazine listed on Guam to include perimeter fence areas as described by [the Veteran]." Here, there is no indication that herbicides were used in or near where the Veteran was stationed. Based on a review of the evidence and statements of record, the Board finds that the most probative evidence indicates that Agent Orange/tactical herbicides were not used, tested, stored, or disposed of on Guam. It therefore follows that the Veteran could not have been exposed to such during his service there. While the Veteran is competent to state his activities during service, there is nothing in the record suggesting the Veteran has specialized training or skill in identifying chemical compounds or tactical herbicide agents. Indeed, his service records suggest he had a high school education, and mechanic and safety courses during service. The record does not suggest and the Veteran does not contend that he has expertise in chemistry or civil engineering. Thus, the Veteran is not competent to state that the Guamamanians he escorted on the base were using Agent Orange or other tactical herbicides to clear brush. In any event, the Board finds the conclusion of JSRRC, based on review of DOD documents, that Agent Orange and tactical herbicides were not used, stored, tested, or disposed of in Guam to be more probative than the Veteran's recollections of events occurring more than 40 years ago. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence). The Board acknowledges the documents showing EPA superfund sites that show that Guam may now be contaminated with various toxic substances. However, these documents do not establish that the various substances included tactical herbicides such as Agent Orange. Indeed, the information for Andersen AFB provided by the Veteran included multiple contaminants including organics and pesticides, but herbicides are not listed. The Veteran was not stationed at Andersen AFB. Reference in a different document noting the Naval Magazine where the Veteran was stationed pertained to landfills with toxic chemicals and did not mention herbicides or Agent Orange. In short, there remains no official DOD documented indication of tactical herbicide use in Guam, nor has Guam been added to the list of locations for which exposure to such herbicide agents may be presumed. Many of the documents submitted by the Veteran to support his contention of Agent Orange use in Guam rely on the nonprecedential Board decision and/or an RO decision as proof that such use occurred. However, the interpretation of evidence by a VA employee in a particular case does not prove that Agent Orange actually was used in Guam as alleged. Indeed, neither of the prior decisions submitted in this case mention an inquiry to JSRRC or review of the DOD listing of sites outside of Vietnam where Agent Orange was used, stored, or tested. Thus, those nonprecedential RO and Board decisions, which did not appear to take into consideration competent evidence from DOD, are not dispositive as to the use of Agent Orange in Guam. See generally, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"); see also Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In this case, the Board finds the information from JSRRC, who noted that review of DOD documentation reveals that tactical herbicides including Agent Orange were not used, stored, tested, or disposed of in Guam during the Vietnam era to be highly probative. Records concerning the use of tactical herbicides from DOD are significantly more reliable than the Veteran's recollections of events occurring more than 40 years previously and are more probative than the information from the EPA which does not identify tactical herbicides as the substances in the Guam superfund sites. Thus, the most probative evidence indicates that the Veteran was not exposed to tactical herbicides including Agent Orange during his service in Guam. Accordingly, as the preponderance of the evidence is against a finding of herbicide exposure, service connection for diabetes mellitus as due to such exposure must be denied. Moreover, the evidence does not show and the Veteran does not contend that his diabetes is otherwise related to service. The Veteran's service treatment records reveal no complaints or findings of diabetes or elevated blood sugar levels. Indeed, at the Veteran's various physical examinations during his service, urinalysis was negative for sugar. Post service treatment records indicate the Veteran was diagnosed with diabetes as early as 1994. Such is approximately 25 years after separation of service. There is no evidence of record, lay or medical, suggesting that his diabetes is related to service on a basis other than the alleged herbicide exposure. Accordingly, the preponderance of evidence is against the claim for service connection for diabetes on a direct basis or on a presumptive basis as a chronic disease pursuant to 38 C.F.R. § 3.309(a). In summary, the Board has reviewed the evidence of record, and the pertinent law and regulations, but finds that the preponderance of the evidence is against the claim. Thus, service connection for type II diabetes mellitus is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for type II diabetes mellitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs