Citation Nr: 1522864 Decision Date: 06/01/15 Archive Date: 06/16/15 DOCKET NO. 09-30 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide agent exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to January 1967 and April 1967 to April 1971. This appeal is before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript is included in the claims file. FINDING OF FACT Diabetes mellitus did not begin during service, is not the result of in-service herbicide agent exposure, and is not related to service in any other way. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as secondary to herbicide agent exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letters dated in March 2006 and October 2007. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). After full notice and opportunity for the Veteran to respond was provided, his claim was readjudicated in a July 2009 statement of the case. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment and personnel records, VA medical records, a copy of the Veteran's Travel Voucher from October 1968, and letters from the Air Force Historical Research Agency and U.S. Army and Joint Service Records Research Center (JSRRC) have been obtained. A VA examination was not obtained in connection with the claim. However, as discussed below, as the Veteran's diabetes mellitus would be presumed to be related to any in-service herbicide agent exposure, the central question in this case is whether he had such in-service exposure to an herbicide agent, as he asserts. Also, there is no medical or other competent evidence suggesting a nexus between the Veteran's diabetes and service, or any other evidence that would warrant obtaining a medical nexus opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, throughout the appeal, the Veteran's assertion of in-service herbicide agent exposure has been based on his contention that he briefly served in the Republic of Vietnam. However, after the appeal had been certified to the Board, in April and May 2015 statements, the Veteran made some assertions of serving near the perimeters of Udorn Air Force Base (AFB) and Mukdahan Air Force Station (AFS), Thailand. The RO does not appear to have performed the specific development steps for claimed exposure to herbicide agent in Thailand during the Vietnam Era pursuant to VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. However, as discussed below, the Veteran's service personnel records reflect duty as an alternate flight supervisor of a communication center and responsibilities corresponding to this duty, and no indication in his performance review or other personnel records that he had any duties as a security policeman or patrol or otherwise had any duty near an air base perimeter. Also, the Veteran's service at Mukdahan AFS was not at a Royal Thai Air Force Base listed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. Moreover, as discussed below, the Board determines that the Veteran has not given credible or reliable statements regarding his alleged service in the Republic of Vietnam, and does not find the vague and unsupported assertions that he had duty as a security officer or otherwise at or near the perimeter of either Udorn or Mukdahan AFS to be credible. Therefore, remand for further development of any such exposure to herbicide agents in Thailand is not warranted in this case. Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the March 2015 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Thus, the VLJ sufficiently complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and any error in notice provided during the Veteran's hearing was harmless. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for certain chronic diseases, such as diabetes mellitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. §§ 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of 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). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the interpretation by the Department of Veterans Affairs (VA) of the phrase "served in the Republic of Vietnam," which required the physical presence of a veteran within the land borders of Vietnam during service, was a permissible interpretation of 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii). Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, certain diseases, including type II diabetes, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 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 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is afforded the benefit of the doubt. In this case, the Veteran asserts that his current diabetes mellitus is the result of in-service exposure to Agent Orange. Specifically, as reflected in written statements submitted in January 2006, September 2005, July 2008, and November 2009, and in his testimony during his March 2015 Board hearing, the Veteran asserts that, during his service in 1968, on a flight from the United States to Bangkok, Thailand, his plane stopped to refuel in Saigon, Vietnam, at which time he departed the plane. The record reflects that the Veteran has had diabetes since February 1994. A February 1994 VA treatment record reflects that the Veteran was found to have had a blood sugar of 560. It was noted that his medical history was only pertinent for conditions related to a football injury. The diagnosis was new onset diabetes. The Veteran's service personnel records reflect that he had service in Mukdahan AFS, Thailand, from October 17, 1968 to October 1969. These records, including a performance report for the period of September 1968 to September 1969, reflect that his duty was as an alternate flight supervisor of a communication center, and that his duties in this capacity included monitoring incoming and outgoing messages; insuring and effecting immediate notification and delivery of all message traffic; filing daily traffic messages and logs; operating and monitoring switchboard operations; and conducing training for subordinates. There is no indication in his performance review or other personnel records that the Veteran had any duties as a security policeman or patrol or otherwise had any duty near an air base perimeter. The Veteran submitted his DD Form 1351-2 "Travel Voucher or Subvoucher" for the period of October 1968. The Travel Voucher itinerary reflects that the Veteran departed from Travis AFB at 8:00 PM on October 10 and arrived at Bangkok at 9:30 AM on October 12; for "Mode of Travel," it is indicated that the Veteran flew by commercial plane. See DD FORM 1351-2. The Travel Voucher further indicates that the Veteran departed Bangkok at 2:00 PM on October 13 by government plane and arrived at Udorn at 3:00 that day, and that the Veteran departed Udorn on October 14 and arrived at Mukdahan that same day. There is no indication that the Veteran's plane made any stops between Travis AFB and Bangkok. The Veteran signed the Voucher, and it was date stamped November 1, 1968. The Veteran also submitted a letter dated in August 2009 from the Air Force Historical Research Agency. The letter indicates that the 60th Military Airlift Wing, which was based at Travis AFB, from July through December 1968, flew several basic routes, and listed such routes. The only routes from Travis to Bangkok included stops at Hickam, Guam, Clark, and Saigon. The record also contains a letter from the JSRRC, dated in May 2009, reflecting that the Veteran's unit was stationed at Mukdahan, Thailand, during 1968. The letter indicates that, although the JSRRC researched the available unit historical data, it did not document or mention the departure or arrival of individual unit members or aircraft flight paths, and that the JSRRC could therefore not document that the Veteran "stepped foot" in the Republic of Vietnam or that his plane landed in Saigon. In this case, the Veteran's service connection claim must be denied. The weight of the evidence reflects that the Veteran served in Mukdahan, Thailand, during the Vietnam Era, but did not serve in the Republic of Vietnam, including during any stop on his flight from Travis AFB to Bangkok, Thailand. The Veteran's Travel Voucher, which he signed, reflects that the Veteran flew directly to Bangkok from Travis AFB on a commercial plane, and at no point stopped in Saigon or elsewhere in Vietnam. This Travel Voucher, documenting numerous flights from October 8 to 14, 1968, weighs heavily against the Veteran's assertion that his plane stopped in Saigon. While the Board acknowledges the August 2009 letter from the Air Force Historical Research Agency documenting the basic routes flown by the 60th Military Airlift Wing from Travis AFB from July through December 1968, the Veteran's Travel Voucher, again, indicates that he flew on a commercial plane, rather than on military aircraft or any other form of government aircraft. This August 2009 letter is therefore not probative in the Veteran's case. As reflected in a May 2015 statement, the Veteran has asserted that his Travel Voucher itinerary, reflecting that he departed from Travis AFB at 8:00 PM on October 10 and arrived at Bangkok at 9:30 AM on October 12, would indicate that his flight took approximately two days. However, the Board observes that his flight would have crossed the "International Date Line," and therefore arrived a full day later without that day's time elapsing; the Veteran's flight from Travis to Bangkok was therefore, according to the Voucher, a period of approximately 13 hours and 30 minutes. See United States Naval Observatory (USNO) "World Time Zone Map," http://aa.usno.navy.mil/faq/docs/world_tzones.php. In this regard, the Veteran's bare assertions, as in his September 2005 notice of disagreement, that an aircraft could not make a flight to Bangkok from Travis without stopping to refuel, are not supported by any evidence of record, and the Veteran has not identified any. In addition to the Veteran's assertions that he was in Vietnam, the Board recognizes his assertions, made in April and May 2015 statements, that, while in Udorn, he stayed in a hut near the perimeter of the base, where all personnel in transit stayed, away from the permanent personnel, and that his duties at Mukdahan included duty near the perimeter of the station, including night duty that involved performing security checks of the perimeter. However, regarding his approximately one-day stay at Udorn, the Veteran has presented or identified no supporting evidence of his bare assertion that he might have been exposed to herbicides due to the location of his sleeping quarters near the perimeter at Udorn, or otherwise that he was near the Udorn perimeter or had any duties at that base that would have placed him near the perimeter. Moreover, again the Board has specifically found the Veteran's given details of the circumstances of his flight from Travis to Mukdahan, and related assertions of herbicide agent exposure, not to be credible or reliable, and likewise finds this bare assertion not to be. Regarding the Veteran's service at Mukdahan, as noted above, his service personnel records reflect duty as an alternate flight supervisor of a communication center and responsibilities corresponding to this duty, and no indication in his performance review or other personnel records that he had any duties as a security policeman or patrol or otherwise had any duty near an air base perimeter. Also, in this regard, the Veteran's service at Mukdahan AFS was not at a Royal Thai Air Force Base listed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q. Given the above, and given the Board's determination that the Veteran has not made credible or reliable statements regarding being in the Republic of Vietnam, the Board does not find the vague and unsupported assertions that he had duty as a security officer or otherwise at or near the perimeter of either Udorn or Mukdahan AFS to be credible. Finally, the Board acknowledges the Veteran's assertions, as reflected in his September 2006 notice of disagreement and November 2009 substantive appeal, that, in service, while he was not treated for diabetes mellitus, he had conditions including hyperhidroses, tiredness, excessive urination problems, rashes, toe nail and sexual problems, sleeping problems, and headaches. However, to the extent that the Veteran asserts that such conditions indicate that his diabetes began in service, he is not competent to make any such specific medical determination. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Also, while the Veteran was treated for sexual problems in service, to which he was found to have had no physical illness related, in December 1966 reported a history of hyperhidrosis and frequent mild headaches, and in March 1971 reported a history of several medical problems including occasional dizziness and sleeping problems, service treatment records reflect no diabetes mellitus. In this regard, the Veteran's March 1971 report of examination for separation indicates that urinalysis tests were negative for albumin and sugar. Moreover, as indicated above, the Veteran's post-service medical records consistently indicate that the Veteran's diabetes had its onset in 1994, including the February 1994 VA treatment record reflecting that he was found to have had a blood sugar of 560 and a diagnosis of new onset diabetes. In this regard, as the onset of diabetes was many years after the Veteran's discharge from service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic diseases are not applicable. Therefore, the evidence weighs against a finding that diabetes mellitus began during service, is the result of in-service herbicide agent exposure, or is related to service in any other way. Accordingly, service connection for diabetes mellitus, to include as secondary to herbicide agent exposure, must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for diabetes mellitus, to include as secondary to herbicide agent exposure, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs