Citation Nr: 1518183 Decision Date: 04/28/15 Archive Date: 05/05/15 DOCKET NO. 08-22 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for cirrhosis of the liver on a direct basis, or as secondary to hepatitis C. 3. Entitlement to service connection for esophageal varices on a direct basis, or as secondary to hepatitis C. 4. Entitlement to service connection for type II diabetes mellitus claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)). In June 2011, the Veteran and his wife testified during a Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) at the RO on all of the issues currently on appeal. A transcript of that hearing is of record. In November 2011, the Board issued a decision that, in part, denied the claims of entitlement to service connection for hepatitis C, entitlement to service connection for cirrhosis of the liver, as secondary to hepatitis C, and entitlement to service connection for esophageal varices, as secondary to hepatitis C. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board's November 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the AVLJ who conducted the June 2011 Board hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested a new Board hearing and a new decision from the Board. Accordingly, in a June 2014 Board decision, the portion of the November 2011 Board decision that denied entitlement to service connection for hepatitis C, entitlement to service connection for cirrhosis of the liver, as secondary to hepatitis C, and entitlement to service connection for esophageal varices, as secondary to hepatitis C, was vacated. In January 2015, the Veteran was afforded another Board hearing via videoconference before the undersigned AVLJ on the vacated issues (i.e., hepatitis C, cirrhosis of the liver, and esophageal varices). A copy of the hearing transcript is of record. At the January 2015 Board hearing, the Veteran testified that he was waiving initial AOJ consideration of the evidence submitted since the November 2011 Board decision and remand. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2014). Also at the January 2015 hearing, the Veteran raised for the first time the theory that his esophageal varices and/or liver cirrhosis had their onset in service. The Board, therefore, has rephrased the issues listed on the title page. See Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd sub nom, Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). In November 2011, the Board also remanded the Type II diabetes mellitus claim to the AOJ for further development. The remand was not disturbed by the June 2014 vacate. This appeal has now been returned to the Board for appellate disposition. The Veteran's paperless claims files (Veterans Benefits Management System (VBMS) and Virtual VA) were also reviewed and considered in preparing this decision, along with his paper claims file. Notably, the transcript of the January 2015 hearing is located in VBMS. The issues of entitlement to service connection for hepatitis C, cirrhosis of the liver and esophageal varices are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The credible, probative evidence does not show that the Veteran was exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6)(i), during his military service. 2. The Veteran's Type II diabetes mellitus first manifested many years after service, and is not shown to be causally or etiologically related to his active military service. CONCLUSION OF LAW Service connection for type II diabetes mellitus claimed as due to herbicide exposure is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 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 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in March 2006 pre-rating letters, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate the service connection claim, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA, as well as the information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The April 2007 rating decision reflects the initial adjudication of the claim after issuance of these letters. Hence, the March 2006 letters -which meet the content of notice requirements described in Dingess/Hartman and Pelegrini - also meet the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, personnel, VA, and private treatment records, as well as Social Security Administration records. Also of record and considered in connection with this matter are various written documents provided by the Veteran, his spouse and his representative. The Board observes that the Veteran has alleged exposure to herbicides while stationed in Fort Kobbe, Fort Sherman and/or Fort Clayton for the time period from February 1972 to September 1973. In response, the AOJ obtained a review of the Department of Defense (DoD) inventory of herbicide operations and attempted to obtain herbicide exposure verification from the Joint Services Records Research Center (JSRRC) based upon consideration of the Veteran's allegations. Thus, the Board finds that VA has fulfilled its duty under M21-1MR, IV.II.2.C.10(o) to investigate the Veteran's potential herbicide exposure. Overall, the Board is aware of no additional available and relevant evidence necessary to decide the claim. The Board notes that VA has not obtained an examination or medical nexus opinion in connection with the Veteran's service connection claim for diabetes mellitus. While the Veteran has been diagnosed with type II diabetes mellitus, the Board finds that the claims file lacks any credible probative evidence that this disease had its onset in service, that there has been persistent and/or recurrent symptoms of diabetes mellitus since service or within one year of service discharge, or that this disease is related to his service or any of the claimed exposures therein. Therefore, a VA examination and/or opinion is not required. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). The Board finds that no additional AOJ action to further develop the record in connection with the service connection claim for diabetes mellitus, prior to appellate consideration, is warranted. In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above 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. At the hearing in June 2011, this AVLJ spent considerable time clarifying the Veteran's service connection theories and the types of evidence capable of substantiating the claim. In particular, the Veteran provided testimony concerning his military assignments and duties, the locations wherein he believed he was exposed to herbicides, the potential private records which may be capable of substantiating his claims, and what type of information may be available on the internet to support his claim. Notably, the undersigned noted the fact the Board has no competence to speak to scientific and medical issues in general. See Transcript of June 2011 Board hearing, pp. 16-27. Thus, the June 2011 Board hearing transcript reflects compliance with the Bryant requirements. Additionally, the Board notes that any perceived hearing deficiencies were cured with additional Board development concerning the dispositive issue on appeal - the Veteran's alleged herbicide exposure. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc., 725 F.3d at 1312, the Veteran was afforded another Board hearing before the undersigned in January 2015. Notably, the Board had remanded the diabetes mellitus claim to the AOJ for additional development (described above) and the hearing focused on the service connection claims denied in the prior Board decision. Neither the Veteran nor his representative has asserted that VA failed to comply with the any of the hearing requirements, nor identified any prejudice in the conduct of the Board hearings. By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that the undersigned complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's Board hearings constitutes harmless error. The Board is also satisfied as to substantial compliance with its November 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the Veteran's recent VA treatment records which were associated with Virtual VA. The remand also directed the AOJ to contact the JSRRC and any other relevant facility to determine whether Agent Orange was sprayed, tested, or stored in the areas of Fort Kobbe, Fort Sherman, or Fort Clayton in Panama from February 28, 1972, to September 23, 1973. The AOJ contacted the JSRRC and Compensation and Pension service who could not verify the Veteran's exposure to herbicide, and in May 2012, the AOJ issued a Formal Finding regarding the lack of information needed to corroborate a claim associated with herbicide exposure. Finally, the remand included readjudicating the claim, which was accomplished in the July 2012 and August 2012 Supplemental Statements of the Case (SSOCs). Thus, the Board finds that there has been substantial compliance with its remand directives for the Type II diabetes mellitus claim. Id. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). General Regulations and Statutes for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specified diseases listed as chronic in nature may be presumed to have been incurred in service, if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Diabetes mellitus is included among the specified chronic diseases subject to presumptive service connection. 38 C.F.R. § 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Veteran seeks service connection for Type II diabetes mellitus claimed as due to herbicide exposure. As noted above, the first element of service connection requires medical evidence of a current disorder. Here, a current diagnosis has been established. At a VA Medical Center (VAMC) treatment visit in January 2011, the Veteran was diagnosed with Type II diabetes mellitus. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran's STRs are silent for documentation of the disorder. The records reveal no complaints or treatment related to the Veteran's Type II diabetes mellitus or its associated symptoms. At his military separation examination, Type II diabetes mellitus was not noted, and the examiner found a normal clinical evaluation of the Veteran's endocrine system. A urinalysis was negative for albumin or sugar. Instead, the Veteran asserts that he was exposed to herbicides while stationed in Panama during his active military service. He recalls that, during one military training maneuver at a Jungle Operation Training Course, his battalion had been sprayed from a chemical dropped by a C-130. He testified that this sprayed material, which caused bleeding and stinging of his skin, completely defoliated the sprayed area within 2 weeks. He had been informed that the sprayed material had been a mosquito repellant. Service personnel records reflect that the Veteran was stationed in Panama from February 28, 1972, to September 23, 1973, where he worked with the Third Battalion of the Fifth Infantry Division at Fort Kobbe (from February 28, 1972, to April 22, 1973) and Fort Clayton (from April 23, 1973, to September 23, 1973). The Veteran also alleges that he underwent training at Fort Sherman during this time. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including type II diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) or, alternatively, a veteran without Vietnam service but with competent evidence of herbicide exposure, who develops one of the identified diseases. The Veteran did not serve in the Republic of Vietnam. The Veteran, however, submitted an article about possible Agent Orange spraying in Panama during the late 1960's and early 1970's in the area of Fort Sherman. In March 2007, the AOJ submitted a request to the JSRRC to verify whether herbicides were sprayed in the areas of Fort Sherman or Fort Kobbe in Panama from August 1, 1971, to December 31, 1972. The JSRRC found no documentation verifying that herbicides were tested, sprayed, or stored in those areas during that time. The Board notes, however, that the Veteran was in Panama (to include Fort Kobbe and Fort Clayton) from February 28, 1972, to September 23, 1973. The Veteran has submitted several newspaper articles offering anecdotal evidence from former military personnel that herbicides were stored and used in Panama during the Veteran's time in service. Of significance, these records note that a study conducted by the Panamanian Government found measurable dioxin levels in the soil at Fort Clayton, where the Veteran had been stationed. Additionally, there is a report that Charles Bartlett, who is referred to as a former government head of the Agent Orange litigation Project, has asserted personal knowledge that several hundred barrels of Agent Orange had been shipped to Panama in the mid-1960's, and remained there thereafter. Accordingly, in a November 2011 remand, the Board directed the AOJ to contact the JSRRC and any other relevant facility to determine whether Agent Orange was sprayed, tested, or stored in the areas of Fort Kobbe, Fort Sherman, or Fort Clayton in Panama from February 28, 1972, to September 23, 1973. Upon remand, in March 2012, the AOJ sent an email to VA Compensation Service requesting the aforementioned information. Later that month, VA Compensation Service provided a negative response, stating: A review of the Department of Defense (DoD) documentation does not show any use, testing, or storage of tactical herbicides, such as Agent Orange, at any location in Panama. In general, tactical herbicides were developed for Vietnam and used there. Some limited testing was done at sites in the U.S. and foreign locations under direction of the Fort Detrick, Maryland, Plant Science Lab, but there was no location in Panama shown as one of these sites. Compensation Service cannot provide any additional evidence beyond that described above to support the Veteran's claim. Therefore if the claim, unless the claim is inherently incredible, clearly lacks merit, or there is no reasonable possibility that further VA assistance would substantiate the claim (see 38 C.F.R. § 3.159(d)] regional offices should send a request to JSRRC for any information that this organization can provide to corroborate the Veteran's claimed exposure. Accordingly, in March 2012, the AOJ contacted the JSRRC to determine whether Agent Orange was sprayed, tested, or stored in the areas of Fort Kobbe, Fort Sherman, or Fort Clayton in Panama from February 28, 1972, to September 23, 1973. In April 2012, the Defense Personnel Records Information Retrieval System (DPRIS) responded by stating that the available United States Army historical records do not document the spraying, testing, transporting, storage, or usage of Agent Orange at Fort Kobbe, Fort Sherman, or Fort Clayton, Panama Canal Zone during the period 1972 - 1973. Therefore, DPRIS stated that they were unable to verify or document that the Veteran was exposed to Agent Orange or other tactical herbicides while stationed in Panama. In April 2012, the AOJ sent a follow-up email to VA Compensation Service requesting a response regarding the newspaper accounts sent in by the Veteran regarding the evidence of Agent Orange use in Panama. Later that month, the Compensation Service again provided a negative response, stating: The Department of Defense (DoD) has provided VA with a list of domestic and foreign sites, outside Vietnam and the Korean demilitarized zone, where tactical herbicides such as Agent Orange (AO) were used, tested, or stored. Panama is not on this list and DoD has no record of AO associated with Panama. VA must rely on, and base its AO policies on information provided by DoD. In addition, VA is not aware of any studies where the Panamanian Government found measurable dioxin levels in the soil at Fort Clayton which was attributed to tactical herbicides like Agent Orange. Some advocate groups and Internet sources, like [the Veteran's], claim that AO was used in Panama during the 1960-1970s and DoD has "covered-up" such use. However, DoD has openly documented and provided VA with information on 1960-1970s AO testing in Puerto Rice, Hawaii, and other locations where US troops were stationed and where an environment similar to Vietnam's tropical jungles existed for testing purposes. VA would see no reason for DoD to admit these locations and attempt to "cover up" use or storage in Panama. In short, VA is unaware of any evidence to show that AO was ever used or stored in Panama. Based on the aforementioned evidence, in May 2012, the AOJ issued a Formal Finding regarding the lack of information needed to corroborate a claim associated with herbicide exposure. Specifically, the AOJ found that the evidence fails to confirm that the Veteran was exposed to tactical herbicides, namely Agent Orange, in Panama during his active military service. The AOJ stated that, with the receipt of negative responses from Compensation Service and JSRRC, there is no further information available to corroborate the exposure to tactical herbicides as contended. Thus, the Board finds a conflict of evidence as to whether the Veteran was, in fact, exposed to herbicides during service. Upon review of the entirety of the record, the Board finds by a preponderance of the evidence that the Veteran was not exposed to an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6)(i), during his military service. On the one hand, the Veteran asserts that an herbicide agent was sprayed directly on him during jungle training exercises in Panama. He opines that this sprayed material was an herbicide agent based on the immediate effects upon his skin and the delayed effects on vegetation. This description, in and of itself, has limited probative value as to the actual composition of the chemical(s) in the sprayed material, if any. While the Veteran is clearly competent to describe the effects of the sprayed material on his skin and vegetation, this evidence does not establish that an "herbicide," as defined at 38 C.F.R. § 3.307(a)(6)(i), was used. Notably, a general use of herbicides does not meet the definition of 38 C.F.R. § 3.307(a)(6)(i) which contemplates a "chemical in an herbicide used" such as 2,4-D; 2,4,5-7 and its contaminant TCDD; cacodylic acid; and picloram. The Board has also carefully considered the reports that the Panamanian Government has found measurable levels of dioxin at Fort Clayton, that a former government worker asserts personal knowledge that hundreds of barrels of herbicides had been shipped to Panama, and that a former contractor worker asserts that many toxic chemicals were present at military facilities in Panama. This evidence has some probative value in support of the claim. Notably, this evidence appears to be litigation positions against the U.S. Government which are not shown to have been proven and the evidence supporting these allegations are not associated with the claims folder (e.g., shipping manifests, pictures of herbicide storage containers in Panama, actual scientific study results confirming dioxin contamination, etc.). On the other hand, the Board has a steadfast assertion from the DoD of where and when herbicides were used and stored. The DoD is the custodian of records for the historical use of herbicides, and is in the best position from review of its own records to determine whether an herbicide agent was present in Panama. Overall, the Board finds that the DoD's determination that an herbicide agent was not present in Panama - which is based on its own classified and unclassified documents - substantially outweighs the Veteran's assertions and the litigation materials asserting that herbicides were used/stored in Panama. Thus, although the Veteran has been diagnosed with a disease listed at § 3.309(e) (diabetes mellitus, type 2), he is not entitled to the presumption that it was incurred in or aggravated, by service on the basis of exposure to herbicides during service. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact "incurred" during the active military service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, there is simply no credible lay or medical evidence that diabetes mellitus had its onset in service or within one year from service separation. The STRs do not show that the Veteran developed chronic diabetes mellitus during his active military service, and do not document any complaints of or treatment for Type II diabetes mellitus or its associated symptoms during the Veteran's active military service. When the Veteran was first treated post-service in 2005, he was found to be recently diagnosed with diabetes mellitus. He did not indicate that his Type II diabetes mellitus had been present since his active military service. Similarly, a subsequent January 2011 VA treatment record documented that the Veteran was diagnosed with diabetes mellitus five years ago. The first post-service relevant complaint of Type II diabetes mellitus was in a September 2005 VA Medical Center (VAMC) treatment record, which documented that the Veteran had been recently diagnosed with Type II diabetes mellitus. Again, the Veteran's active duty ended in 1974. This lengthy period without treatment for the disorder tends to weigh against a finding of inservice onset. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). Additionally, the evidence of record does not document continuity of symptomatology during and since the Veteran's active military service. Notably, neither the Veteran nor his spouse has directly alleged the onset of diabetes mellitus symptoms in service or contemporaneous in time to service Thus, the Board finds that the credible competent evidence does not establish the onset of diabetes mellitus in service or within one year of service discharge, or that symptoms of diabetes mellitus have been continuous since service. Thus, service connection claim cannot be granted on a direct basis, on a presumptive basis as a chronic disease being manifest to a compensable degree within one year of service discharge, or on the basis of continuity of symptomatology under 38 C.F.R. § 3.303(b). In reaching the above conclusions, the Board has not overlooked the contentions of the Veteran and his spouse. The Board does not doubt the sincerity of their beliefs but, for the reasons set forth above, finds that the entire evidentiary record as a whole preponderates against his claim. To the extent that either argues an inservice onset of diabetes mellitus, the Board places greater probative weight on the finding of the military examiner in May 1974 who found no evidence of an endocrine disorder based upon examination and laboratory testing. In essence, the problem in this case is that the Board is unable to find that that the Veteran was exposed to "a chemical in an herbicide" as defined by 38 C.F.R. § 3.307(a)(6)(i). Thus, the opinion and theories about the Veteran's claimed disability by the Veteran, his spouse, his representative and those individuals named in the internet material, while having some probative value, are far outweighed by the evidence of record, particularly the DoD's determination of herbicide locations. There is no reasonable doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). In sum, the Board acknowledges that the Veteran has a current diagnosis of diabetes mellitus. However, based on the foregoing evidence, the Board finds that diabetes was not present until many years after service and there is no competent evidence that the Veteran's current diabetes is related to service, including exposure to herbicides. Accordingly, the Board concludes that diabetes was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. ORDER Service connection for type II diabetes mellitus is denied. REMAND At his hearing in January 2015, the Veteran testified that his hepatitis C and esophageal varices had their onset in service as demonstrated by his treatment for gastrointestinal problems. He also reported, for the first time, a possible hepatitis C risk factor of blood exposure. The STRs do reflect medical evaluations in June and July 1964 for abdominal complaints. The Board finds that the low threshold for obtaining medical examination and opinion, therefore, has been met. See generally McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since April 2012. 2. Thereafter, forward the Veteran's claims folder to an appropriately qualified medical doctor for an opinion as to the nature and etiology of the Veteran's hepatitis C, liver cirrhosis and esophageal varices. The Veteran should be scheduled for examination only if requested by the examiner. Following review of the claims folder contents, the examiner is requested to provide opinion on the following question: Whether it is at least as likely as not the examiner is requested to provide opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hepatitis C, esophageal varices and/or liver cirrhosis either first manifested in service, or was contracted in service? In providing this opinion, the examiner must consider and discuss the following: * the Board's factual determination that the Veteran's allegation that he was exposed to congealed blood in service (see January 2015 Board hearing transcript (located in VBMS)) is true although not documented in the record; * the Board's factual determination that the Veteran allegation of experiencing gastrointestinal problems after drinking stream water (see June 2011 Board hearing transcript (located in paper claims folder)) is true; * the gastrointestinal evaluations conducted in June and July 1974; * and the Veteran's theory that the gastrointestinal symptoms he manifested in service demonstrated the onset of his hepatitis C, esophageal varices and/or liver cirrhosis. If the examiner cannot provide opinion without resort to speculation, the examiner is requested to explain why an opinion would be speculative. For example, whether there is additional information needed to provide the necessary opinion (if so, identify the necessary information) or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs