Citation Nr: 1514404 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 13-12 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for diabetes mellitus, including as due to exposure to herbicide agents. 2. Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to August 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2014, the Veteran and his spouse testified at a Board hearing held before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In July 2009, the Veteran's representative submitted a claim of entitlement to service connection for diabetes mellitus type II, including due to exposure to herbicide agents (e.g. Agent Orange). The Veteran and the RO have consistently characterized his claim as involving entitlement to service connection for diabetes mellitus type II. See November 2009 Rating Decision (characterizing claim as for "diabetes mellitus type II"); February 2013 SOC (same); January 2010 NOD ("diabetes Type II"); March 2010 Statement in Support of Claim ("Vet wishes to continue service connected claim for diabetes mellitus type II"). However, a claimant's characterization of his disability is not determinative of the issues on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, there are prior denials of a claim of entitlement to service connection for diabetes mellitus (type unspecified). In order to ensure full consideration of all the medical evidence and to give the Veteran the benefit of every doubt, the Board has characterized the appeal as involving two issues: (1) a claim to reopen the previously denied diabetes mellitus claim and (2) a claim of entitlement to service connection for diabetes mellitus, including as due to exposure to herbicides. This characterization is consistent with the Veteran's contention that he was originally diagnosed with Type 2 diabetes mellitus which developed into his current disability of Type 1 diabetes mellitus. See, e.g., August 2011 Statement in Support of Claim (alleging "diabetes type II now @ type I"); July 2014 Board Hearing Tr. at p. 7 ("It was type II that turned into type I."). The recharacterization as a claim to reopen introduces some procedural hurdles prior to consideration of the merits. But the Board has determined that the claim should be reopened, so the Veteran will suffer no prejudice from the recharacterization. See Shinseki v. Sanders, 556 U.S. 396, 409-13 (2009) (holding prejudicial error analysis applies in context of claims for VA benefits). In addition and as explained below, if the Board interpreted the claim as limited to a claim for service connection solely for diabetes mellitus type II, the claim would fail for lack of a current disability consisting of diabetes mellitus type II. For this reason too, the recharacterization is consistent with the Veteran's rights and the Board's duties to him. See Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (noting the importance of reading veterans' filings liberally and sympathetically). FINDINGS OF FACT 1. In a May 1971 rating decision, the RO denied service connection for diabetes mellitus. The Veteran did not file a Notice of Disagreement, submit any additional evidence within one year of that rating decision, or take any further steps to appeal that determination. 2. In a December 2004 rating decision, the RO denied entitlement to service connection for Type 1 diabetes mellitus. The Veteran timely filed a Notice of Disagreement (NOD), but, after the issuance of September 2005 Statement of the Case (SOC), the Veteran failed to timely perfect his appeal by filing a VA Form 9 or other substantive appeal. 3. In a January 2007 rating decision, the RO denied entitlement to service connection for diabetes mellitus. The Veteran timely filed a NOD. After the issuance of a December 2008 SOC, the Veteran failed to perfect his appeal by timely filing a VA Form 9 or other substantive appeal. 4. Evidence received since the January 2007 rating decision with respect to the diabetes mellitus claim is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the Veteran's diabetes mellitus claim. 5. The Veteran has a current disability consisting of Type 1 diabetes mellitus; he has never had Type 2 diabetes. 6. The weight of the evidence is against a finding that the Veteran's currently diagnosed diabetes began during or is otherwise etiologically related to his military service. CONCLUSIONS OF LAW 1. The May 1971 rating decision denying the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. The December 2004 rating decision denying the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 3. The January 2007 rating decision denying the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 4. The criteria for reopening the claim of service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 5. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. General Legal Principles Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 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. Id. In determining whether statements submitted in support of a claim are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). II. New and Material Evidence to Reopen: Diabetes Mellitus The Veteran has previously claimed entitlement to service connection for diabetes mellitus and has been denied. See May 1971 Rating Decision (denying entitlement to service connection for unspecified diabetes mellitus). The May 1971 rating decision was not appealed and became final. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. Therefore, the May 1971 rating decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). The Veteran filed a claim of entitlement to service connection for diabetes in July 2004 which, properly, was treated as a claim to reopen. The RO reopened the claim and reconsidered it based on all of the evidence of record, but, in a December 2004 rating decision, denied entitlement to service connection for Type 1 diabetes mellitus. The Veteran timely filed a Notice of Disagreement (NOD), but, after the issuance of September 2005 Statement of the Case (SOC), the Veteran failed to timely perfect his appeal by filing a VA Form 9 or other substantive appeal. 38 C.F.R. § 20.302. Therefore, the December 2004 rating decision also became final. 38 C.F.R. § 20.1103. Subsequently, the Veteran filed a May 2006 request to reopen the claim of entitlement to service connection for "diabetes". In August 2006, he filed a claim of clear and unmistakable error (CUE) in the May 1971 rating decision, though he incorrectly identified the rating decision as a 1973 rating decision. The RO denied both the service connection and CUE claims in a January 2007 rating decision. The Veteran timely filed a NOD. After the issuance of a December 2008 SOC, which characterized the claimed disorder as "diabetes mellitus type I", the Veteran failed to perfect his appeal by timely filing a VA Form 9 or other substantive appeal, so the January 2007 rating decision is final. 38 C.F.R. §§ 20.302 and 20.1103. The January 2007 rating decision is the most recent final decision. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). Evidence is "new and material" if it (1) has not been previously submitted to agency decision makers; (2) relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time of the last prior final denial of the claim sought to be opened; and (4) raises a reasonably possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO most recently denied the Veteran's claim of entitlement to service connection for diabetes mellitus on the basis that the evidence did not show a causal nexus between the Veteran's current Type 1 diabetes mellitus and his active service. The denial was also based on the lack of diagnosis of the condition within the presumptive period. The Veteran and his wife have submitted testimony that he was, in fact, diagnosed with diabetes mellitus within one year of his discharge. See, generally, July 2014 Board Hearing Transcript. Moreover, they both testified to symptoms of diabetes within one year of discharge. Id. In addition, the Veteran has submitted some additional medical evidence and he has undergone VA examinations since the last denial of his claim. See, e.g., January 2013 VA Examination (diagnosing diabetes mellitus type I). The evidence is new in that it is not cumulative or redundant of previous evidence and, if believed, is sufficient to create a reasonable possibility of substantiating his claim. In making this determination, the Board is cognizant of the Court's instructions that the Board must presume that newly submitted evidence is credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence described above is enough to reopen under the low threshold of Shade. In addition, the Board is also acutely aware, in the circumstances of this case, of the imperative to give the Veteran the benefit of every doubt. III. Service Connection and Presumptions: Generally The Veteran claims that he developed diabetes mellitus type II due to exposure to herbicide agents while he was in Vietnam. He claims that he was diagnosed with diabetes mellitus type II within one year of his discharge and that his diabetes later changed into diabetes mellitus type I. On these theories, he claims entitlement to service connection for diabetes mellitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). Diabetes mellitus is listed as a chronic disease under 38 C.F.R. § 3.309(a), so the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply. In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). Diabetes mellitus type II, but not type I, is a condition associated with herbicide exposure. 38 C.F.R. § 3.309(e). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran did serve in Vietnam, so he is entitled to a presumption that he was exposed to one of the relevant herbicide agents. See 38 U.S.C.A. § 1116(f); see also 38 C.F.R. § 3.307(a)(6)(iii). IV. Service Connection: Evidence and Analysis The Veteran's August 1969 discharge examination indicates urinalysis, albumin, sugar, and serology were all negative. Cardiolipin test was non-reactive. His August 1969 report of medical history also indicates that he did not have and had never had sugar or albumin in his urine. He noted a history of back pain. His service treatment records prior to discharge contain no indication of symptoms of diabetes nor do they contain any diagnosis of diabetes. During the course of this appeal, the Veteran has submitted evidence that his discharge was for medical reasons. However, the discharge to which he referred in his July 2014 testimony was not his August 1969 discharge from active service, rather it was a December 1971 discharge from the United States Army Reserves. The record indicates that, upon his discharge from active service in August 1969, he was transferred to the United States Army Reserves with a terminal date of reserve obligation in December 1973. See August 1969 DD-214. The December 1971 discharge relieves him from this reserve obligation, including associated annual training, due to "physical disqualification." The December 1971 discharge does not indicate, either on its face or when viewed in conjunction with other available service records, that the Veteran was discharged during a period of active duty, including during a qualifying period of active for training or inactive duty for training. See 38 C.F.R. § 3.6 (defining "active duty"); see also July 2014 Board Hearing Tr. at p. 3 (confirming the discharge was from the inactive Reserves). The Veteran has asserted that he was diagnosed with diabetes mellitus type II in April 1970. See October 2009 Statement in Support of Claim ("diagnosed on 4-25-70"); but see July 2014 Board Hearing Tr. at p. 4 (Veteran's spouse testified to diagnosis in April 1971). In support of his contention, the Veteran relies on an October 1977 private treatment record that notes: "a history of adult onset diabetes mellitus since age 25....The diagnosis was made in 1970." See also June 1978 Private Treatment Note ("8 year history of diabetes mellitus"); March 1983 Private Hospital Note ("past medical history is particularly remarkable for the onset of insulin-dependent diabetes mellitus in 1970"); June 2004 VA Agent Orange Registry Examination ("Chief and current complaints...1. Diabetes mellitus type I. Dx 1970."). However, a mere record of a veteran's statements, such as medical history, by a medical professional do not transform those statements into medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (lay statements "simply...recorded by a medical examiner" do not constitute "competent medical evidence"). The Board assigns no probative value to recorded medical histories in various treatment records from 1977 and later for the additional reason that they conflict with the contemporaneous records documenting the actual diagnosis. See March 1971 Private Treatment Note (discussing course of onset and documenting initial diagnosis of diabetes mellitus). With respect to the probative value of the Veteran's assertions, the testimony at the July 2014 Board hearing identified April 1971 as the date of initial diagnosis and the Board finds contemporaneous medical records are more reliable than an interested party's recollections over forty years after the events in question. The Veteran was first diagnosed with diabetes mellitus in March 1971 after presenting at a private hospital complaining of symptoms of diabetes. See, generally, March-April 1971 Private Hospital Records. Those records indicate that his symptoms had onset in or around January 1971. See March 1971 Private Treatment Note ("About 1 1/2 mo ago this man noted a dry mouth, later he developed polyuria, polydipsia, polyphagia, wt. [los] 15# and fatigue."). He was admitted to the hospital for control of his diabetes. The discharge records note the same facts regarding onset and also document that the Veteran "was placed on Insulin therapy shortly after his admission" and that he "was instructed in the aspects of his disease on Insulin dosage and technique and checking of the urine for sugar and acetone." See April 1971 Discharge Summary. These contemporaneous records establish that the Veteran was first diagnosed with diabetes mellitus in March 1971. Notably, the March 1971 diagnosis occurred more than one year after his August 1969 discharge, so service connection for a chronic disease based on diagnosis within the presumptive period is not warranted. See 38 C.F.R. § 3.307. The Veteran has also suggested that his symptoms began during that presumptive period. See July 2014 Board Hearing Tr. at pp. 4-6 (discussing onset of thirst, hunger, some "numbness in hands", and "extreme fatigue"). However, as noted above, contemporaneous medical records document his initial complaints to a medical provider in March 1971 as well as his own statements at the time that his symptoms of polydipsia (thirst), polyphagia (hunger), weight loss, and fatigue began roughly one and a half months prior to his March 1971 admission. See, e.g., March 1971 Private Treatment Note. The contemporaneous medical records which document the Veteran's statements at the time regarding the timing of the onset of symptoms have more probative weight than the Veteran's and his wife's recollections, over forty years after the events in question, of the date of onset of diabetes symptoms. This assignment of probative value is due, in part, to the fact that recall tends to be better closer to the event, the Veteran had not filed a claim then but has a pending claim now, and, importantly, the statements at the time were given to a physician for the purpose of diagnosis and treatment of a serious illness that required hospitalization. See, e.g., Fed.R.Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("recourse to the [Federal Rules of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"); Caluza, 7 Vet. App. at 511-512; Cartright, 2 Vet. App. at 25. Because the Veteran's diabetes symptoms had onset in or around January 1971, well over one year after his discharge, he is not entitled to service connection for diabetes mellitus based on continuity of symptomatology. See 38 C.F.R. § 3.303(b). The Board will now turn to the crux of the Veteran's argument. Importantly, the Veteran alleges and all of the competent medical evidence establishes that he currently has diabetes mellitus Type 1. See, e.g., January 2013 VA Examination (recounting diagnosis of Type 1 diabetes by five different endocrinology specialists). As noted above, he contends that he was initially diagnosed with diabetes mellitus type II and that his diabetes changed, over time, into diabetes mellitus type I. If the evidence is at least in equipoise on this factual issue, the Veteran would prevail because diabetes mellitus type II is one of the diseases presumptively related herbicide (e.g. Agent Orange) exposure. 38 C.F.R. § 3.309(e). While a lay witness is competent to report (1) symptoms observable to a layperson (e.g. thirst, fatigue); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay witness competent to render opinions regarding the proper diagnosis and etiology of a medically complex condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). This Veteran and his wife, who both lack medical training, are not competent to opine on the etiology or proper diagnosis of his diabetes, whether in 1971, currently, or at any point in between. See, e.g., Jandreau, 492 F.3d at 1377. Likewise, the distinction between type I and type II diabetes mellitus in a diagnosis is a medically complex determination and lay witnesses are not competent to identify whether diabetes is type I or type II. Similarly, the Board also is not competent to make an independent medical assessment of the proper diagnosis and etiology of the Veteran's diabetes mellitus. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). Therefore, in evaluating the Veteran's claim, the Board will rely on the medical evidence of record. The Board, however, has considered the Veteran's subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record. The medical records relating to the initial diagnosis and treatment of the Veteran's diabetes mellitus in early 1971 do not identify the type. The record also contains private treatment notes from January to February 1973 relating to a hospitalization for a hypoglycemic insulin reaction. His physicians document "diabetes mellitus" but do not specify a type. See, e.g., February 1973 Discharge Summary. The Veteran relies on later records, specifically, an October 1977 private treatment note that indicates "adult onset" diabetes mellitus. The Veteran implicitly relies on VA regulations which use the term "adult onset" diabetes mellitus to refer to type II. See 38 C.F.R. § 3.309(e) ("Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes)"); but see May 2010 Internet Article (submitted by the Veteran in July 2014 and noting all three described types of diabetes have adult onset). The Board finds that the October 1977 characterization is not a diagnosis of the type of diabetes. The notation of "adult onset diabetes mellitus" is explicitly phrased as "history" and the recorded diagnosis is "uncontrolled hyperglycemia" for which the Veteran was hospitalized. In other words, the record contains no indication that the physician who wrote the note conducted any tests or examinations to identify the type of diabetes or that identifying the type was relevant to the course of treatment at that time. Moreover, even assuming the physician did mean to identify the diabetes as type II diabetes, rather than describe the history of onset, the record contains no reasoning for that determination which the Board can weigh against other medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"). For these reasons, the Board assigns no probative weight, with respect to the type of diabetes diagnosed in the 1970s, to the October 1977 private treatment note recounting "adult onset" of diabetes mellitus. For completeness, the Board notes that even assuming the Veteran accurately reported diagnosis with "adult onset" diabetes, the evidence has no probative weight without either the underlying rationale for the alleged diagnosis of diabetes mellitus type II or the test results upon which that diagnosis is based. Nieves, 22 Vet.App. at 304. The record contains evidence which establishes that, more likely than not, the Veteran never had diabetes mellitus type II. As already discussed, the treatment records fail to explicitly identify the type of diabetes mellitus diagnosed in 1971 and the notation of "adult onset" in 1977 is, in the context of the record, ambiguous. Therefore, VA requested a medical opinion regarding the type of diabetes mellitus with which the Veteran initially diagnosed in March 1971. After a September 2006 VA examination, a VA examiner concluded that the Veteran's "diabetes mellitus is most likely a type 1 diabetes." The examiner explained that "the onset of the condition at age 25, in a man of normal weight, who apparently required and was treated with Insulin and diet only, and who has been on Insulin ever since" indicated Type 1 diabetes. In addition, the examiner explained why the notation of "adult onset" diabetes did not suggest diabetes type II: "Even though one attending physician described this as adult onset, he was not more specific and all of the evidence points to this being type 1." The Board finds the VA examiner's opinion to be factually accurate, well-supported by facts and data, and thoroughly explained, therefore the Board assigns it significant probative value. Nieves, 22 Vet.App. at 304. The January 2013 VA examination produced a similar opinion. The examiner was asked the type of diabetes and he explicitly opined that the Veteran had diabetes mellitus Type 1. The opinion was based on accurate facts and data and sufficiently explained, so it too has probative value. Nieves, 22 Vet.App. at 304. The Board also finds probative the fact that it is well-established that the Veteran's current diabetes mellitus is Type 1. See January 2013 VA Examination; March 2012 VA Endocrinology Note (noting "DM type 1 x 40 years"); October 2004 VA Endocrinology Consult ("type 1 diabetes of 33 years duration"). The record contains no evidence or indication that diabetes mellitus can change from type II to type I or vice versa. The May 2010 article that the Veteran submitted in July 2014 weighs against the Veteran's claim, assuming the author is competent to opine on the subject. The author of the article suggests there are more than two types of diabetes and focuses on a so-called "Type 1.5" or latent autoimmune diabetes in adults (LADA). The author states that "LADA can be classified as a more slowly progressing variation of type 1 diabetes" that is "often misdiagnosed as type 2." Rather than providing evidence that the Veteran's diabetes changed from type II to type I, the article suggests that, assuming an original diagnosis of type II, the diagnosis could have been in error. This would explain why more recent tests confirm diabetes mellitus type I, rather than that the type changed. The article also explains that the underlying disease process is distinct, with type I and LADA sharing causative characteristics whereas type II is caused by different physiological processes. This too suggests that a change from type II to type I is not medically plausible. On the other hand, the article does note that there are some genetic similarities between so-called Type 1.5 and both type I and type II. At best, the article indicates it is possible to be misdiagnosed with type II diabetes mellitus when the diagnosis should be Type 1.5. As already noted, however, the Veteran has been conclusively and repeatedly diagnosed with diabetes mellitus type I. The article provides no support for his contention that he suffered from diabetes mellitus type II that changed into diabetes mellitus type I. The Board will not assign the article any probative weight either for or against the Veteran's claim. The greater weight of the evidence is against finding that the Veteran ever had diabetes mellitus type II, so he is not entitled to presumptive service connection for diabetes mellitus type II based on exposure to herbicide agents. Further, as noted, diabetes mellitus type I is not one of the conditions for which presumptive service connection may be granted based on exposure to herbicide agents. See 38 C.F.R. § 3.309(e) (specifying diabetes mellitus type II). Consequently, the Veteran is not entitled to service connection for diabetes mellitus on a presumptive basis. Although presumptive service connection (either as a chronic disease or due to exposure to herbicide agents) is not warranted, the Board must still consider direct service connection. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(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) (unavailability of presumptive service connection does not preclude a veteran from establishing service connection with proof of actual causation). The Board will briefly discuss this theory of entitlement as the Veteran has not alleged direct service connection and has not presented any new evidence on this issue since the last final denial of his claim for direct service connection. The Board has already discussed the current diagnosis of diabetes mellitus type I and the in-service event, specifically presumed in-service exposure to herbicide agents. The remaining element for a direct service connection claim is a causal nexus between the in-service event and the current disability. Shedden, 381 F.3d at 1167. The Board reiterates that neither the Veteran nor the Board are competent to opine on the etiology of the Veteran's diabetes mellitus type I, but must base its findings on the medical evidence of record. Jandreau, 492 F.3d at 1377; Colvin, 1 Vet. App. at 174. The only medical opinion of record that suggests a link to the Veteran's military service is that of the September 2004 VA examiner. She stated that "Type 1 diabetes was identified during his military service." However, that statement was based on a factually inaccurate assumption: "In March 1971 while active duty he was hospitalized for an elevated blood sugar of 566 and ketones in his urine." The Veteran was hospitalized with hypoglycemia in March 1971, but he was discharged from active duty in August 1969. An opinion based on inaccurate facts has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Nieves-Rodriguez, 22 Vet. App. at 304. The September 2004 VA examiner does not otherwise provide an opinion that the Veteran's diabetes was related to service. In other words, she did not provide an opinion suggesting direct service connection, but only mistakenly recounted that there was a diagnosis during active service. No other examiner has indicated the possibility or of a link between the in-service herbicide exposure and the Veteran's diabetes. The September 2006 VA examiner did not offer an opinion on etiology, nor did the January 2013 VA examiner. There is no competent medical evidence that would support finding a link between the Veteran's active service and his current diabetes mellitus type I. In conclusion, the Veteran never had diabetes mellitus type II, he is not entitled to presumptive service connection for the diagnosed diabetes mellitus type I (whether based on diagnosis within the presumptive period, chronicity of symptomatology, or exposure to herbicide agents), and there is no evidence of a causal nexus between his presumed exposure to herbicide agents and his diabetes mellitus type I. The evidence is not in equipoise, rather the greater weight of the evidence is against the Veteran's claim. Gilbert, 1 Vet. App. at 53-56. Accordingly, entitlement to service connection for diabetes mellitus is denied. V. Duties to Notify and Assist The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2014 Board hearing, the undersigned Veterans Law Judge specifically addressed the criteria for entitlement to service connection and asked questions regarding in-service diseases or injuries, the existence of a current disability, medical treatment, continuity of symptomatology, the need for evidence of a causal nexus between an in-service disease or injury and a current disability, and the existence of any private medical opinions that would help the Veteran's claim. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran in September 2009, March 2011, and September 2011. The contents of the notice letters fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board concludes that VA satisfied its duties to notify the Veteran. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated with the claims file the Veteran's available service treatment records, private treatment records, Social Security Administration (SSA) records, VA treatment records, lay statements, and general medical evidence provided by the Veteran. The Veteran has not identified any other records relevant to the claim being decided here. The Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA also satisfied its duty to obtain a medical examination. In connection with prior claims, VA had provided the Veteran with multiple examinations, including in September 2004 and September 2006. In connection with the current claim, the duty to assist was met with a January 2013 examination. This examination and opinion was adequate as the VA examiner reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided an adequate discussion of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Veteran has not alleged or identified any deficiency in the examination. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER New and material evidence having been received, the claim of service connection for diabetes mellitus is reopened. Entitlement to service connection for diabetes mellitus, including as due to exposure to Agent Orange, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs