Citation Nr: 1403511 Decision Date: 01/27/14 Archive Date: 02/10/14 DOCKET NO. 08-11 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure or ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs Regional Office in San Diego, California. In an April 2010 decision, the Board denied the Veteran's claim. The Veteran thereafter appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2010 Order, the Court granted a Joint Motion for Remand, vacated the April 2010 Board decision, and remanded the matter for readjudication consistent with the motion. The Joint Motion indicated that the Veteran had furnished sufficient information to warrant a U.S. Army and Joint Services Records Research Center (JSRRC) request to attempt to verify his alleged exposure to herbicides on Johnston Island from September 27, 1971 to March 30, 1972. In February 2011, the Board remanded the appeal for further development in accordance with the Joint Motion. The Board is satisfied that there has been substantial compliance with this specific remand directive and the Board may therefore proceed with appellate review. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Records show that the Veteran served on Johnston Island from September 27, 1971 to March 30, 1972, during the Vietnam War, but do not show any in-country service in the Republic of Vietnam. 2. There is no evidence that the Veteran has a radiogenic disease or participated in a radiation-risk activity during service. 3. There is no evidence that the Veteran was exposed to Agent orange or any other tactical herbicides during service. 4. Diabetes mellitus is not shown to be causally or etiologically related to any disease, injury, or incident during active service, nor did it manifest within one year of the Veteran's discharge from active service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Duties to Notify and Assist VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2004. Although the notice letter did not include information pertinent to ratings and effective dates, as service connection is not granted, there is no harm. VA has a duty to assist the Veteran in the development of a claim. The claims file includes service treatment records (STRs), service personnel records, VA treatment records, a report from the U.S. Army and Joint Services Records Research Center (JSRRC), and the statements of the Veteran in support of his claim. The Board notes that the Veteran reported that he has been receiving Social Security disability benefits since 1993. VA's duty to assist specifically includes requesting information from other Federal departments. However, in this case, the SSA records are not relevant as they would not offer a basis on which this claim could be granted. The Board acknowledges below that the Veteran has a current disability of diabetes mellitus, diagnosed in 1997. The SSA records would provide no evidence of exposure to ionizing radiation or herbicide agents, nor any medical evidence that diabetes was incurred in service. Therefore, the Board need not obtain the Veteran's SSA decision or supporting documentation. The Board has considered the statements and perused the records for references to additional evidence not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis A. Service Connection Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant for diabetes mellitus may establish the second and third elements by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, where a veteran served continuously for 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 the 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; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain specified diseases will be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no evidence of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). Type 2 diabetes mellitus is one of the diseases enumerated in 38 C.F.R. § 3.309(e) for which presumptive service connection is warranted based on herbicide exposure. Id. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). B. Direct and Presumptive Service Connection Initially, the Veteran is not entitled to service connection on a direct basis or based on diabetes manifesting within one year of service. The Veteran's service treatment records do not show treatment for diabetes mellitus. The post-service medical evidence consists of VA treatment reports indicating an initial diagnosis of diabetes mellitus in 1997. Given the foregoing, the earliest treatment for the claimed condition is shown no earlier than about 25 years after separation from service. This passage of time is a factor for consideration when making a finding of direct service connection. See Maxson v. West, 12 Vet. App. 453 (1999) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). C. Service Connection due to Ionizing Radiation Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected. See 38 U.S.C.A. § 1112(c)(1), (2); 38 C.F.R. § 3.309(d)(1), (2). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means on-site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; certain presence on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee; certain service on Amchitka Island, Alaska during certain underground nuclear tests; or service which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the "Special Exposure Cohort." 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). On-site participation includes presence at a test site during an official operational period of an atmospheric nuclear test, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3). The provisions of 38 C.F.R. § 3.311(b)(2)(vii) define "radiogenic disease" as a disease that may be induced by ionizing radiation. In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307, 3.309, and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). Dose data will be requested from the Department of Defense in claims based on participation in atmospheric nuclear testing and in claims based on participation in the American occupation of Hiroshima or Nagasaki, Japan. 38 C.F.R. § 3.311(a)(2)(i)(ii). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to a veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation. 38 C.F.R. § 3.311(a)(2)(iii). Section 3.311(b) provides for referral of claims for service connection for a disability due to exposure to ionizing radiation to the Under Secretary for Benefits when a veteran was exposed to ionizing radiation as a result of participation in atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, or other activities as claimed, and he subsequently develops a radiogenic disease within a specified time. Id. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain diseases shown to a compensable degree within a year of separation from service are presumed to have been incurred in or aggravated by service; as to radiation-exposed veterans, there are certain diseases which may be presumptively service connected under 38 U.S.C.A. § 1112(c) if participation in an in-service radiation-risk activity is shown. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages found in 38 C.F.R. § 3.311 if the condition at issue is a "radiogenic disease," and other conditions specified by regulation are met, such as an evidentiary showing of exposure to ionizing radiation. See 38 C.F.R. § 3.311(b)(2, (4). Third, direct service connection may be established under 38 C.F.R. § 3.303(d) by showing that the disease began during or was aggravated by service without regard to the statutory presumptions. See Combee, 34 F.3d at 1043-44. Diabetes mellitus is not among the diseases listed at 38 C.F.R. § 3.309(d) that may be service connected if manifest in a radiation-exposed veteran. In this regard, there is no evidence that the Veteran participated in a "radiation risk activity" with exposure identified under 38 C.F.R. § 3.309, all of which involve either on-site participation in a test involving atmospheric detonation of a nuclear device, certain service at specified locations, or certain duties, none of which the Veteran experienced. Further, while the Veteran indicated in his original claim in 2004 that his diabetes was the result from exposure to ionizing radiation from his job duties in service, he has not offered any evidence that he was exposed to radiation during service. In fact, in each of his statements since his original claim, he has only claimed that he was exposed to Agent Orange and other chemical weapons, not radiation. He has not alleged participation in any "radiation-risk activity" as defined by 38 C.F.R. § 3.309, and the record does not suggest his presence at any such location. Therefore, the presumption of 38 C.F.R. § 3.309(d) does not lead to an award of service connection. In regards to the second method of proving service connection, diabetes mellitus is not listed as a potential radiogenic disease, therefore the specialized development procedures of 38 C.F.R. § 3.311(b) do not apply. This leaves only the third method of proving service connection available, which was discussed in the section above. Service connection for diabetes mellitus cannot be granted on the basis of exposure to ionizing radiation, as the claim fails on all three potential bases cited above. D. Service Connection due to Herbicide Exposure Initially, the Veteran does not contend, and evidence does not establish, "service in Vietnam," such that exposure to herbicides may be presumed on that basis. 38 C.F.R. § 3.307(a)(6), 3.313(a). Rather, the Veteran contends that his diabetes mellitus is due to Agent Orange or other chemical exposure in Okinawa and/or Johnston Island. The threshold issue, then, is whether there is sufficient evidence that the Veteran was exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6), in Okinawa or Johnston Island. If the Veteran was so exposed, the presumptions found in 38 C.F.R. § 3.309(e) would apply. VA has received from the Department of Defense (DOD) a listing of locations outside of Vietnam where Agent Orange was used or tested over a number of years. In this regard, DOD has confirmed that Agent Orange was stored on Johnston Island between April 1972 and September 1977 and that leakage into the coral below began in 1974. Service personnel records (SPRs) reveal that the Veteran served in Okinawa from May 1971 to September 1971, and on Johnston Island from September 1971 to March 1972. Therefore, the Veteran was not stationed on Johnston Island during the period of April 1972 to September 1977, when Agent Orange was known to have been stored on Johnston Island. While it appears the Veteran was not on Johnston Island when the Agent Orange was being stored there, a JSRRC request was accomplished. The response indicated that "the 1971 Station List that 267th Chemical Company was stationed at Johnston Island, Johnston Atoll in 1971. In addition, our research revealed that in April 1970 the Department of Defense (DOD) suspended the use of Agent Orange in the Republic of Vietnam. In September 1971, the Secretary of Defense directed that all stocks of Agent Orange be removed from Vietnam and be returned to the United States for disposal. In April 1972, approximately 25,000 55-gallon drums of Agent Orange were moved from South Vietnam to Johnston Island, in the Pacific Ocean, for storage. A civilian contractor was hired and assumed responsibility for the maintenance of the storage site and drums. When the Agent Orange stocks arrived at Johnston Island, the entire inventory was placed in the northwest corner of the Island and was immediately fenced to restrict access. The inventory storage areas were identified as an area 'off limits' to military and civilian personnel. A total of 24,795 drums of Agent Orange were processed at Johnston Island, between July and August 1977. Approximately 100 civilian employees, hired by the contractor, performed the de-drumming process. The Agent Orange was incinerated at sea in the period from July to September 1977. Therefore, we are unable to document or verify that [the Veteran] was exposed to Agent Orange or other tactical herbicides at Johnston Island during 1971." Based on this response, there is no basis to conclude that the Veteran was exposed to herbicides since military personnel were not tasked with any duties associated with the Agent Orange. The Veteran has noted his participation in Operation Red Hat, which is confirmed by his SPRs, as well as his MOS of ammunition storage specialist with the 267th Chemical Company. For Operation Red Hat, the Army leased 41 acres on Johnston Island to store chemical weapons formerly held in Okinawa. Phase I consisted of moving 150 tons of mustard agent to Johnston Atoll without incident in January 1971. Phase II involved moving the remainder, approximately 12,500 tons of mustard agent, to Johnston Atoll in September 1971. These stored weapons were noted to include rockets, projectiles, mines, mortars, and containers of nerve and mustard agents. Notably, Agent Orange and other herbicide agents were not included in the items stored in Okinawa and moved to Johnston Island during Operation Red Hat in 1971. While the Board concedes the Veteran's exposure to chemical munitions during service, Agent Orange is not a chemical weapon but a tactical herbicide. Exposure to chemical munitions does not include exposure to Agent Orange as well. Overall, the Board finds that the Veteran's service in Okinawa and Johnston Island did not involve circumstances under which herbicide exposure may have taken place. This determination substantially outweighs the numerous lay assertions by the Veteran. In summary, the Veteran's assertions regarding herbicide exposure are outweighed by the service and post-service evidence of record, and the expertise provided by DOD. Thus, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Although lay persons are competent to provide opinions on some medical issues, the etiology of diabetes mellitus falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1377. Therefore, the Veteran is not considered competent (meaning medically qualified) to address the etiology of his diabetes mellitus. The Board has considered a letter submitted by Dr. "S." in February 2005, which states that the Veteran's illness is "at least in part related to Agent Orange exposure in Vietnam." The Board finds that this evidence is insufficient to warrant a grant of this claim, as this opinion is not shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history. Further, the opinion is not supported by an analysis that the Board can consider and weigh against other evidence in the record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board points out that Dr. S. asserts that the Veteran was exposed in Vietnam. Yet, it is clear that the Veteran never served in Vietnam. Therefore, the Board does not give any probative value to Dr. S.'s opinion. In summary, the evidence does not demonstrate that the Veteran was exposed to herbicides in service or that his claimed diabetes mellitus is caused by herbicide exposure. Furthermore, there is no competent medical evidence suggesting that the diabetes mellitus is associated with any incident of his service. Accordingly, given the evidence of record fails to provide a link between the Veteran's diabetes mellitus and service, the Veteran's appeal 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 Veteran's 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, 1364-65 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 54-55. ORDER Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure or ionizing radiation, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs