Citation Nr: 1522831 Decision Date: 05/29/15 Archive Date: 06/11/15 DOCKET NO. 06-25 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, as a substitute claimant. 3. Entitlement to service connection for renal disease, to include as secondary to diabetes mellitus, as a substitute claimant REPRESENTATION Appellant represented by: Robert W. Legg, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and the appellant ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to January 1970 and from August 1970 to May 1977. The appellant is the Veteran's surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that denied the Veteran's claims of service connection for diabetes mellitus and renal disease. It also comes on appeal from an August 2011 decision of the VA Pension Management Center (PMC) in St. Paul, Minnesota, that denied service connection for cause of the Veteran's death and entitlement to accrued benefits. The PMC certified the appeal to the Board. In November 2009, the Veteran and the appellant testified via videoconference at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In December 2009, the Board denied the Veteran's claims for entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, and entitlement to service connection for renal disease, associated with diabetes mellitus. The Veteran appealed those decisions to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the Board's decision and remanded the matters to the Board for action consistent with the terms of the JMR. The Veteran died in May 2011 and the Board was notified of his death that same month. In a September 2011 decision, the Board dismissed the Veteran's appeal for lack of jurisdiction in light of his death. The appellant's VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), was received by the RO in June 2011 (an informal claim for the above was submitted in May 2011). Under the provisions of 38 U.S.C.A. § 5121A, when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West 2014), (substitution in case of death of a claimant who dies on or after October 10, 2008). VA published a proposed rule on substitution, on February 15, 2011. See 76 Fed. Reg. 8,666 -01 (Feb. 15, 2011) (Proposed Rule). Under the proposed rule, VA would treat qualifying death claims (for example, a VA Form 21-534) as requests to substitute. Id. (proposed to be codified at 38 C.F.R. § 3.1010(c)(2)). Unlike accrued benefits claims that are limited to the evidence of record at the time of the Veteran's death, a substitute claimant would be able to submit additional evidence to be considered by VA that was not of record at the time of the claimant's death. Thus, under 38 U.S.C.A. § 5121A and the proposed rule, the Board construed the appellant's VA Form 21-534 as an inferred request to substitute. In April 2012, the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to accrued benefits were before the Board and were remanded for issuance of a statement of the case. The Board also referred the issue of an initial determination regarding basic eligibility for substitution to the agency of original jurisdiction, as the Board does not have jurisdiction to make determinations regarding basic eligibility to substitute in the first instance. See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.101(a) (2014). In November 2011, the PMC provided the appellant with notice of her rights to be substituted as the claimant of the purposes of processing the Veteran's claims to completion. In a Statement of the Case mailed to the appellant in August 2012, the PMC determined that the appellant was a valid substitute claimant as a surviving spouse. In an October 2012 statement, the appellant's attorney clarified that the appellant was seeking service connection benefits as a substitute claimant rather than accrued benefits. Therefore, while the appellant's claims were originally characterized as for "accrued benefits", the Board will consider the appellant's claims as ones for service connection for diabetes mellitus and for renal disease as a substitute claimant. In February 2013, the issues of entitlement to service connection for the cause of the Veteran's death, diabetes mellitus, and renal disease were before the Board and were remanded for additional development regarding potential exposure to herbicides during the Veteran's service in Thailand. The Board finds, and in his May 2013 written Supplemental Statement of the Case response the Veteran's representative agrees, that all requested development was completed and appellate review may continue. Stegall v. West, 11 Vet. App. 268 (1998). The Board issued a decision in August 2013 in which it denied the appeal as to the issues listed on the title page of the instant document. The appellant appealed that decision to the Court and in a January 2015 decision, the Court vacated the Board decision and remanded the matter to the Board for readjudiction. The Court determined that the Board had not provided sufficient explanation for its determination that the Veteran was not exposed to any (to include commercial) herbicide during his active service in Thailand. The Board apologies to the widow for the delays in the full adjudication of the Veteran's case. FINDINGS OF FACT 1. The Veteran was not in the Republic of Vietnam during the Vietnam War. 2. The Veteran did not serve near the perimeter of a Royal Thai Air Force Base in Thailand during the Vietnam War. 3. The Veteran was not exposed to a tactical herbicide (such as Agent Orange) during his active service. 5. The Veteran's diabetes mellitus did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by his active service 4. The Veteran's renal disease did not have onset during service, did not manifest within one year of separation from active service, and was not caused by his active service. 5. The Veteran's death was due to end-stage kidney disease. 6. At the time of the Veteran's death service connection had not been established for any condition, including renal disease. 7. The Veteran's death was not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service-connection for diabetes mellitus have not all been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 2. The criteria for service-connection for renal disease have not all been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 3. The criteria for service-connection for cause of the Veteran's death have not all been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312, 3.358 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the appellant, is seeking service connection for the Veteran's diabetes mellitus based on herbicide exposure, which resulted in renal failure, which ultimately caused the Veteran's death. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, including diabetes mellitus and renal disease, if such disease manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In this case the Veteran, and now the appellant, has not argued, and the evidence does not establish, that the Veteran developed any of these conditions during his military service or within one year of separation from service. In the November 2009 hearing the undersigned specifically asked the Veteran "you're not contending that any of these disabilities existed during your military service" and the Veteran responded "that is correct." The Veteran also testified that he first began having problems with diabetes mellitus in 1992 and that his renal disease was associated with the diabetes as per an opinion by a physician. Therefore the Board finds that service connection based on manifestation of either disease during service or during the presumptive period for certain chronic diseases is not established, and is not contended. Instead, throughout the period on appeal the Veteran, and now the appellant, has consistently asserted that the Veteran was exposed to the herbicide Agent Orange either during the Veteran's service in Thailand from January 1968 to January 1970 or by serving in the Republic of Vietnam during the Vietnam War (beginning on January 9, 1962, and ending on May 7, 1975), including stopping in Vietnam one night in January 1968 on his way to Thailand. The appellant asserts that such herbicide exposure resulted in diabetes mellitus, that diabetes resulted in renal failure, and that such renal failure was the cause of the Veteran's death. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service. 38 C.F.R. § 3.307(a)(6). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The exclusive list of diseases which are covered by this presumption includes type II diabetes mellitus. 38 C.F.R. § 3.309(e). The extensive medical records in the claims file reflect the Veteran has been diagnosed with diabetes mellitus since 1992. As such, the Board does not dispute that the Veteran had diabetes mellitus and multiple associated medical complications during his lifetime. Therefore the Board finds the primary issue in this case is determining whether the Veteran was exposed to herbicides during any service in Vietnam, to include his alleged stop during transit to Thailand, or his military service in Thailand. The Board will address both of these theories of exposure in turn. Herbicide Exposure in Vietnam The March 2011 JMR of the Court was clear: The Board must make a specific credibility determination regarding the Veteran's contentions that he stopped in Vietnam, for one night, in January 1968 and stopped again (for what appears to be one night) in Vietnam in August 1974 on the way to Thailand for vacation. In light of the JMR and the Veteran's many contentions, over time, the Board believes it must be clear on this issue. Regarding the claimed presence of the Veteran in Vietnam, the Veteran, during his November 2009 Board hearing, testified, under oath, that he stopped in Vietnam around January 15, 1968 during his flight from Hawaii to Thailand. The Veteran testified he was only in Vietnam for one night. During this November 2009 hearing the Veteran denied any other time spent in Vietnam other than the one night in January 1968 (this point is important, for reasons which will become clear below). The Board acknowledges that such overnight stops in Vietnam may have occurred during transit to Thailand during the era of the Veteran's military service for some servicemen. The Veteran has submitted extensive general information supporting that such stops in Vietnam frequently occurred while troops were in-transit. However, the Veteran's submitted information and research only provides general information and does not provide any evidence that the Veteran himself stopped in Vietnam over-night during his trip to Thailand, other than the evidence that will be noted below. The Board notes that as a lay person the Veteran is competent to report what comes to him through his senses, such as an over-night stay in Vietnam during his military service. Layno v. Brown, 6 Vet. App. 465 (1994). However, even though he is competent to report such lay observation, the Board still must make a determination if the Veteran's competent lay testimony is credible. See Wensch v. Prinicipi, 15 Vet. App. 362, 367 (2001). As will be discussed below, the Board finds the record contains several contradictions in the Veteran's lay testimony which calls into doubt his credibility regarding his contentions. As a threshold matter, the Board acknowledges the February 2013 Remand includes an error. In the Remand the Board wrote: In February 2009, the Veteran submitted to VA two photographs of himself, one of him standing in front of a plane with the caption "Mac Chartered Aircraft, Ton Knut International Airport, Saigon, Vietnam," and another of him standing in front of beds with the caption "Intransit Facility, Saigon, Vietnam Command/Location (in Vietnam)." Photographs of Veteran at an airport in Vietnam and at a transit facility in Vietnam would be strong evidence to support the Veteran's contention that he had, in fact, stopped at Ton Son Haht in Saigon, for one night, in January 1968 and stopped again in Vietnam in August 1974 at Ton Son Knut Airport on the way to Thailand for vacation. Unfortunately, the Veteran's representations to the VA were inaccurate. The Veteran had submitted these identical photographs within his claims file, the first in which he indicated that the first picture was actually of him "Deplaning Mac Chartered Airliner at Tan Son Nhut Intl Airport (Air Base) in January 1968," and the second with the caption "Enlisted billeting for intransit personnel at TSN arrived in Bangkok, Thailand on 17 Jan 68." The Board continued to hold that the Veteran's alleged inconsistencies in labeling the submitted photographs diminished the reliability of the Veteran's recollections regarding his alleged stop in Vietnam. Upon further detailed review of the pictures in question the Board acknowledges the undersigned may have previously misunderstood the captions of the Veteran's photographs (which were, at some points, unclear). The undersigned acknowledges that in the initial label of his photographs the Veteran may have been indicating the photograph was taken during his intratransit stop at the Tan Son Nhut (TSN) air base in Saigon, Vietnam on the way to Bangkok, not labeling the photo as Thailand in Bangkok as the undersigned previously understood based on the initial detailed review of the pictures in question. The Board regrets this misreading of the photograph labels and acknowledges the Veteran consistently asserted the photographs in question were both from the Veteran's one night stay in Vietnam while in transit to Thailand (though it is unclear why he changed the labeling of the pictures and the pictures themselves do not provide any evidence that they were taken in Vietnam as there are no markings or any indications that would indicate the location the pictures were taken in). However, notwithstanding the Board's February 2013 Remand, the Board finds there are other inconsistencies with the Veteran's lay testimony regarding his alleged stay in Vietnam that question the accuracy of his recollections. Most notably, the Board notes the Veteran was inconsistent in stating the amount of time he spent in Vietnam during the period on appeal. In the November 2009 hearing the Veteran clearly and specifically testified that he spent only one day in Vietnam, around January 15, 1968. At the hearing the Veteran was clear and unambiguous in this sworn testimony that he spent one day in Vietnam. In fact, before concluding the hearing the undersigned further clarified this issue, again asking the Veteran to verify he spent only one day in Vietnam, to which the Veteran responded yes. (See Hearing Transcript page 13). His testimony was totally unambiguous. However, in a written statement dated four years earlier, in October 2005, the Veteran asserted he was in Vietnam on two other occasions: in May 1973 in order to re-enlist for tax purposes and in August 1974 while on his way to vacation in Thailand. As such, in this earlier written statement the Veteran alleged two additional periods of time spent in Vietnam which he did not mention to the undersigned during the November 2009 hearing, even when specifically asked. The Veteran testimony and his October 2005 written statement are not consistent. Moreover, in his April 2005 application the Veteran provided yet another estimation of time spent in Vietnam, indicating that he served in Vietnam from May 1968 to March 1974. That is, on the Veteran's initial application for benefits he alleged nearly five years of military service in Vietnam, while at his hearing four years later he testified he spent only one day in Vietnam. While in his application he may have been making a reference to his Thailand service, the Board cannot reconcile the October 2005 statement to the Veteran's unambiguous and clear testimony. The two pieces of evidence are non-reconcilable. Therefore the Board finds the Veteran has provided inconsistent information regarding the amount of time he spent in Vietnam, undermining the accuracy of his recollections, and leading the Board to conclude that he was not credible in this regard. While the Board does not doubt the sincerity of the appellant's belief that the Veteran was exposed to herbicides in Vietnam on that day on the tarmac, causing his death, the evidence contains some inconsistencies that diminish the reliability of the Veteran's recollections regarding his contentions that he stopped at Ton Son Haht in Saigon, for one night, in January 1968. Based on the Veteran's conflicting statements regarding the length of time he spent in Vietnam, the Board finds that the Veteran was not an accurate historian. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (lack of credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.) The best evidence in this case, based on a detailed review of this evidence, reveals that while it is possible that the Veteran had a one-day stopover in Vietnam, the best evidence in this case supports the factual conclusion that the Veteran's recollection of events is in error and that it is less likely than not (a less than 50% chance) that the Veteran was ever in Vietnam. The Veteran provided inconsistent statements. The Board finds that the additional evidence submitted by the Veteran also fails to corroborate that he spent any time in Vietnam. First, the Veteran asserted his DD 214 showed he received the Vietnam Service Medal and Vietnam Campaign Medal, establishing service in Vietnam. However both of these medals were awarded to soldiers who provided support for the Vietnam War, and do not, by themselves, establish the Veteran served within the borders of the Republic of Vietnam. The Board notes the Veteran has also submitted a military pay voucher for the pay period of January 1968 in support of his claim. The Veteran asserted the indication of "CZ" code for combat zone in the taxable income box establishes the Veteran was in Vietnam during this month. However, the 'CZ' pay code is not specific to service in Vietnam but instead is used to designate service in any combat zone. The Board finds this military pay voucher does not establish the Veteran was in Vietnam, but instead merely reflects the Veteran arrived in Thailand on January 17, 1968. Finally, the Board notes that the photographs discussed above fail to establish that the Veteran was in Vietnam. The Veteran has consistently described the photographs as from the Tan Son Knut air force base near Saigon, Vietnam. However, as discussed above, the Veteran's inconsistencies regarding his time spent in Vietnam place into question the reliability of his recollections regarding this time frame. The Board finds that the pictures themselves do not include any identifying characteristics of the location. In one photograph the Veteran is standing in front of a bunk bed, and the background is in poor lighting. While this photograph does resemble traditional military bunking, the Board is unable to determine from the photograph the location of the military dormitory. The second photograph shows the Veteran standing in front of a military airplane. However, only runway and clouds are visible in the background. As such, the Board finds the photograph itself does not provide any information which can be used to identify the location as within the Republic of Vietnam. Based on all of the foregoing, the Board finds that the evidence of record fails to establish that the Veteran was in Vietnam in January 1968. As discussed above, while the Board does not doubt the sincerity of the appellant's belief that the Veteran was exposed to herbicides in Vietnam, causing his death, the evidence contains some inconsistencies that diminish the reliability of the Veteran's recollections regarding his contentions that he stopped at Tan Son Khut in Saigon, for one night, in January 1968, causing his death by exposure to herbicides based on the statutory presumption. Furthermore the supporting documentation submitted by the Veteran also fails to establish he was in Vietnam. Based on all of the foregoing the Board finds that the evidence fails to establish the Veteran was presumed exposed to herbicides in Vietnam during his military service. Herbicide Exposure in Thailand The Veteran has also asserted that he was exposed to herbicides during his military service in Thailand. In his hearing the Veteran testified he was stationed in Korat, Thailand from January 1968 to March 1969, and then in Satahip, Thailand from March 1969 to January 10, 1970. The VA Adjudication Procedure Manual and Manual Rewrite (M21-1 MR) provides that where a Veteran served in Thailand during the Vietnam era at one of the specified Royal Thai Air Force Bases if his duties placed him near the base perimeter then he may be presumed exposed to herbicides. Korat is included on the list at M21-1MR Part IV, Subpart ii, Chapter 2, Section C, paragraph 10.q of bases at which herbicides were used near the fenced-in perimeters of the base, however the base in Satahip is not. As such, exposure to herbicides is presumed if the Veteran served along the perimeter of the Korat base in Thailand. The Veteran's service personnel records reflect the Veteran served as a company clerk. The Veteran's duties as a company clerk did not place him near the base perimeter. However, in February 2013 the Board remanded this issue for further development, including additional notice to the Veteran as well as search of the U.S. Army Joint Service Records Research Center (JSRRC), if enough information is available, to verify if the Veteran was exposed to herbicides. If not the Board requested the JSRRC issue a formal finding that sufficient information required to verify herbicide exposure does not exist. See M21-1MR, pt. IV, subpt. II, Ch. 2, sec. C, para. 10(q); see also Veterans Benefits Administration Fast Letter 09-20 (May 6, 2009). The Board's Remand directives were completed. See Stegall v. West, 11 Vet. App. 268 (1998). After the Board's Remand was issued, a copy of the Compensation and Pension Service's "Memorandum for the Record" regarding herbicide use in Thailand during the Vietnam War was placed in the Veteran's claims file per the guidance in the M21-1MR. In May 2013, the coordinator of the JSRRC issued a formal finding of lack of information required to corroborate the Veteran's exposure to herbicides while serving in Thailand during the Vietnam War. The JSRRC coordinator considered all relevant evidence of record, including the Veteran's lay testimony, the Project CHECO Report by the Department of the Air Force, arguments of the appellant's representative, service treatment records, the Veteran's military personnel file, and the response from the National Personnel Records Center through PIES. However, the JSRRC coordinator found the evidence did not provide sufficient information to corroborate the Veteran was exposed to herbicides during his military service in Thailand. Based on the foregoing the Board finds that proper development has been completed and fails to corroborate the Veteran was exposed to tactical herbicides, such as Agent Orange, during his military service in Thailand. Throughout the course of the appeal the Veteran, the appellant, and her representative have put forth multiple additional theories of the Veteran's exposure to herbicides during his service in Thailand. In his November 2009 hearing, the Veteran testified that herbicides were used throughout the Korat Royal Thai Air Force Base and not just at the perimeter. The Veteran testified he knew this because the area surrounding the military base was lush and green and full of vegetation, but everything within the borders of the base was dead and brown. The Veteran was competent to report what came to him through his senses, such as observing that vegetation did not grow within the borders of the Korat military base, however even assuming that the lack of growth of vegetation within the base was due to herbicide exposure the evidence does not support a finding that such herbicides were the kinds of herbicides that give rise to presumptive service connection. It is important for the Appellant to understand that this issue has been well researched. To the extent that other, commercial, herbicides were the reason of the lack of vegetation on the base, the evidence is not at least in equipoise that the Veteran was exposed to an identifiable commercial herbicide or that the level of any exposure could be ascertained. The Memorandum for the Record states that VA Compensation Service has reviewed a listing of herbicide use and test sites outside Vietnam by the Department of Defense (DoD). The Memorandum states as follows with regard to the list: Additionally, it does not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board. The application of commercial herbicides on military installations was conducted by certified applicators. DoD has advised us that commercial herbicides were routinely purchased by the Base Civil Engineer under federal guidelines and that records of these procurements were generally kept no longer than two years. These commercial herbicides do not include the use of 2,4-D, 2,4,5-T, TCDD, cacodylic acid, and picloram, the specific tactical herbicide agents which give raise to presumptive service connection under VA regulations. 38 C.F.R. § 3.307. The Veteran has alleged that he was unaware of a distinction between commercial and tactical herbicides other than in the previous decision of the undersigned. However, this distinction is also discussed in the C&P Memorandum of the Record regarding herbicides use in Thailand referenced above. Therefore, while the Veteran was correct that a form of herbicide may have been used within the perimeters of military bases in Thailand, these were only commercial herbicides, and not the herbicide agent which gives rise to the presumption of service connection for exposure to herbicides, including Agent Orange. In argument provided June 2013 and April 2015, the appellant's representative contended that the Veteran's service treatment records reflect the Veteran served in Camp Friendship at the Korat air base, which was located near the perimeter of Korat air force base. However, the evidence reflects Camp Friendship is a location within the borders of the Korat air base. While this location is near the outer edge of the base, Camp Friendship is not located on the perimeter as contemplated by the M21-1MR. Examples of service around the perimeter provided in the M21-1MR includes that as a security policeman - an individual whose duties included patrolling the outer border of the military base. Service around the perimeter does not contemplate service well within the borders of the military base, even if along the outer section of the base. As such, the Board finds the Veteran's service in Camp Friendship does not establish service along the perimeter of the base. Finally, in May 2013, the appellant's representative argued that VA's requirement that a claimant must establish personal exposure to herbicides during military service in Thailand is contrary to VA policy. In support of his argument the representative cites to 50 Fed. Reg. 34452 (August 16, 1985). However the cited discussion refers to VA's statement regarding difficulties ascertaining specific data regarding use of herbicide spraying in Vietnam, due in part to the lack of precise data of troop movements. The representative argues the same should be true of Thailand. The Board's finds the representative's logic deeply flawed. The factual basis regarding herbicide use in Vietnam is not the same as that in Thailand. The DoD has indicated that the only use of tactical herbicides in Thailand occurred at the Pranburi Military Reservation from April 2nd through September 8th of 1964. To compare this highly limited use in Thailand to the vast amounts used in Vietnam to assist solider in combat is deeply unsound analysis. That is, the only tactical herbicides used in Thailand were used four years before the Veteran arrived and in a wholly separate location than where the Veteran served. Additionally these tactical herbicides were stored in Vietnam, but not stored in Thailand. These distinctions regarding use of herbicides in Thailand and Vietnam are clearly stated in the C&P Memorandum for the Record regarding herbicide use in Thailand during the Vietnam War referenced above. As such, the Board finds that the same factual considerations regarding use of herbicides do not apply in Thailand as in Vietnam. Moreover, the Board is bound by VA regulations. 38 U.S.C.A. § 7104(c). These regulations state that while herbicide exposure may be presumed for military service within the borders of the Republic of Vietnam, exposure due to military service in Thailand must be found on a factual basis. See 38 C.F.R. § 3.307; M21-1MR, pt. IV, subpt. II, Ch. 2, sec. C, para. 10(q). Based on all of the foregoing, the Board finds the evidence fails to establish the Veteran was exposed to tactical herbicides, such as Agent Orange, during his military service in Thailand and that the best evidence in this case, based on a detailed review of this records, is that it is less likely (a less than 50% chance) that the Veteran was ever exposed to tactical herbicides while working as a clerk in Thailand. Therefore, the Board finds the evidence does not establish the Veteran was exposed to the kind of herbicides for which the presumption of service connection for certain diseases, including diabetes mellitus, applies. As such he is not entitled to service connection for diabetes mellitus or renal disease on a presumptive basis due to herbicide exposure while serving in Thailand. 38 C.F.R. § 3.307. The unavailability of presumptive service-connection does not mean that service connection cannot be granted for a disease that is shown to an equipoise standard of evidence to have been caused by exposure to an herbicide agent during active service or to have been otherwise caused by or had onset during active service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.309(d) (2013); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board has considered whether service connection for diabetes mellitus or renal disease is warranted on a 'direct' (non-presumptive) basis. Principally, whether the evidence shows that he was exposed to a commercial herbicide that caused one or both of diseases. Here, the claim fails on a direct service connection theory of entitlement also. In the January 2015 decision, the Court noted that the Board, in the now vacated August 2013 decision, had concluded without sufficient explanation that the Veteran was not exposed to herbicides during his service in Thailand. Specifically, the Court noted that the Veteran testified as to his exposure and the lack of vegetation inside the base compared to the lush vegetation outside of the base as well as the Memorandum of Record indicating that commercial herbicides were frequently used in air bases in Thailand but that the Board had not explained its finding that the Veteran was not exposed to herbicides, notwithstanding the fact the Veteran himself has never provided any evidence that a lack of vegetation, in and of itself, provides proof of tactical/commercial herbicide use, notwithstanding extensive troop movements and vehicle movements within any military base that would make vegetation growth problematic. The argument suggests that any area that does not have lush vegetation implies Agent Orange use, notwithstanding the fact that there is no evidence to support this finding, beyond the fact that the reason there was lush vegetation outside the base was, simply, that it was outside the base, away from troop movements, vehicle movements, and other implements to growth. The conjecture involved in this argument must be made clear for the record. The Board understands the Court's decision to address exposure to commercial herbicides. The question then is whether possible exposure to the commercial herbicides by the Veteran nearly one half-century ago (excluding exposure to commercial herbicides following service) although not giving rise to presumptive service connection, can form a basis for finding that the nexus element is met with regard to the Veteran's renal disease or diabetes mellitus many years later. It is clear from the Memorandum of Record that it is extremely unlikely that any records of the specific commercial herbicides used at the location at which the Veteran was stationed in Thailand are available. The Memorandum indicates that the records were generally kept only two years and it is now more than 50 years since the Veteran's service in Thailand. Thus, the Board concludes that there is no reasonable possibility that ordering further development to determine what commercial herbicides were used would substantiate the claim and there is thus no duty to conduct such development. 38 U.S.C.A. § 5103(a) (VA is not required to provide assistance to a claimant under § 5103A if no reasonable possibility exists that such assistance would aid in substantiating the claim). Without identification as to what (or even if) commercial herbicides were used it would be mere speculation, in the extreme, for the Board or for a medical professional to state that the exposure to such unidentified commercial herbicides caused the Veteran's diabetes mellitus or renal disease years later. Additionally, it is extremely unlikely that it would be possible to determine whether the Veteran was actually exposed to a commercial herbicide, and such development is not part of VA's duty to assist the appellant in substantiating the claim. See Id. The Memorandum of Record indicates that the Civil Engineer was responsible for the use of such commercial herbicides, that that the use was approved by the Armed Forces Pest Control Board, and the application of the commercial herbicides was conducted by certified applicators. Thus, the fact that commercial herbicides were used at the base where the Veteran was stationed in Thailand does not establish that he was exposed to the herbicides. Given the oversight just mentioned, and that the commercial herbicides were not used tactically where perhaps safety measures would not be of high priority, it can be said that it is unlikely that the commercial herbicides were used in a manner that would result in dangerous exposure to persons on the base. Finally, it is extremely unlikely that the amount of exposure that the Veteran had could be determined. It is a matter of common knowledge that the amount of exposure to a given environmental hazard is significant in determining whether it caused any medical condition. This is reflected in an analogous sense in VA's regulations requiring radiation dose information when determining whether service connection is warranted for radiogenic diseases. See 38 C.F.R. § 3.311 (2014). There are three facts, each that would very likely require pure speculation, upon which an award of service connection for renal disease or diabetes mellitus based on exposure to commercial herbicides depends. These are, (1) what commercial herbicide or herbicides the Veteran was potentially exposed to, (2) whether the application of the herbicides would lead to exposure to an individual at the base, and (3) the amount of any harmful herbicide to which the Veteran was exposed. Of course, even getting to number (2) requires satisfying number (1) and getting to number (3) requires satisfying the first two. Pure speculation as to any of these facts could not form the basis for a grant of service connection because it could not give rise to a finding that there was reasonable doubt as to the in-service or nexus elements and therefore the evidentiary standard could not be satisfied. See 38 C.F.R. § 3.102 (explaining that reasonable doubt is one within the range of probability as distinguished from pure speculation or remote possibility). There are simply too many facts that are unknown and unknowable for a finding that service connection is warranted (that it is as likely as not) for any claimed condition based on exposure to commercial herbicides during the Veteran's service in Thailand. In light of the Veteran's contentions over many years, it is important to note that the Board (and the undersigned) has granted cases based on exposure to herbicides in Thailand. The Board understands that not only serviceman in guard duty around the perimeter of the Thailand base cited above may have been exposed to tactical herbicides. However, the Veteran, in the facts of this case, who served as a clerk in Thailand, and has never contended during his lifetime that he had reason to be on the perimeter of the base in question (the Veteran's contentions on this point have been clear: he believed that simply his being on the Thailand base should have provided him the same presumption as a Vietnam Veteran), or that he sprayed commercial herbicides on the base, or that he saw commercial herbicides being strayed on the base, or that his location on the base made him particularly susceptible to exposure to commercial or tactical herbicides used on the base, makes it less likely (a less than 50% chance) that he was exposed to herbicides of any type during his work in Thailand or, if he was exposed to even some hypothetical commercial herbicide agent, it was minimal, in the extreme, and did not cause the disability that lead to his death. Beyond the above, the facts of this case (the facts that we do know) clearly strongly suggest no connection between service and the problems that would lead to his death decades later. These facts include (but are not limited to) that the disability that caused the Veteran's death began many years after the Veteran left service. While we may never know what, if anything, caused the Veteran's diabetes, or his death, this fact, in and of itself, does not suggest service connection in warranted, or that additional development of a case (in this regard, we agree with the Veteran's representative that this case has been "remanded enough") that has now gone on beyond the Veteran's lifetime would provide any answer to the tragic death of a Veteran who served his country with honor in Thailand. The Board concludes that, based on the best evidence, the Veteran was not exposed to commercial or tactical herbicides during his active service, or even if he was that it can never be said that it is at least as likely as not that this exposure caused a disability which then lead to his death. For the reasons stated above, the Board finds that the preponderance of evidence is against granting service connection for diabetes mellitus or renal disease on a presumptive service connection theory of entitlement or on a direct service connection theory of entitlement. Hence, the appeal as to these issues must be denied. There is no reasonable doubt to be resolved in this regard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102(a). Cause of Death The appellate is also seeking service-connection for the Veteran's death. VA regulations provide the death of a veteran shall be considered due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312. The appellate has consistently asserted that the Veteran died of end-stage kidney disease. At the time of his death the Veteran was not service-connected for this condition and as discussed above the evidence does not establish the Veteran's kidney disease was due to his military service. As the above claims for service connection for diabetes mellitus and renal disease are both denied, the Veteran was not service-connected for any conditions at his time of death. Therefore the Board finds the evidence fails to establish the Veteran's death was due to his military service, and the appellant's claim for service connection for the Veteran's death is denied. Without the presumption of herbicide exposure, the Board finds no theory of compensation for cause of death. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to appellants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a appellant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the appellant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the appellant about the information and evidence that VA will seek to provide; and (3) inform the appellant about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise an appellant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in April 2013, which informed the appellate of all the elements required by the Pelegrini II Court as stated above, as well as in evidence required for death benefits. The Board finds a separate letter from November 2007 informed the Veteran how disability ratings and effective dates were established before his death. Therefore, although the April 2013 letter failed to again provide direct notice to the appellate of the requirements of the Dingess court, the Board finds notice was provided to the Veteran during the course of the appeal before his death and he was provided with sufficient time to submit additional evidence before the claim was readjudicated. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally the Veteran was provided with a hearing before the undersigned in November 2009. In Bryant v. Shinseki, the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the Board personal hearing, the undersigned fully explained the issue on appeal. The Veteran presented detailed testimony and the undersigned asked questions regarding the nature and etiology of the Veteran's claimed diabetes mellitus and renal disease, specifically regarding his alleged exposure to herbicides in Vietnam and Thailand. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to whether any additional information was on the Veteran's referenced website which was not included in his claims file. The Veteran clearly stated that all pertinent information was in the claims file, and that he had submitted everything potentially relevant to his claim, in detail, as requested by the Veteran. Neither the appellant nor her representative have 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. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board has considered if another remand of this case would provide a basis to grant any of the appellant's claims, or to provide some sort of conclusive closure. In this regard, the Board has reviewed the Veteran's many contentions in great detail. The Veteran's central contention of a layover in Vietnam for only one day is diminished by an inconsistent recollection of events, making a further effort to attempt to somehow prove or disprove his flight into Vietnam from so many years ago unlikely, in the extreme. A consistent recollection of an event would have provided the some basis to attach the presumption of herbicide exposure which may have allowed the VA to grant the claim based solely on the Veteran's testimony, but the Board cannot ignore the inconsistency which places into question the Veteran's recollections of events, making success in any further effort to assist the Appellant in her claim highly unlikely. As explained in the merits section of the instant the decision, the Board also finds that there is no reasonable possibility that additional development to attempt to determine the identity of commercial herbicides the Veteran was potentially exposed to, whether he was actually exposed, and if so, the amount of exposure, would substantiate the claims. There is no duty to conduct such development. See 38 U.S.C.A. § 5103. The Board notes that the Veteran was not provided with medical examinations/opinions regarding claims for diabetes mellitus or renal disease. However, as discussed above, these claims were not denied for any lack of medical evidence, but instead for lack of evidence establishing the Veteran was exposed to herbicides during his military service, a factual determination. The Veteran's diagnosis of diabetes mellitus and renal disease was never in doubt. Additionally a VA medical professional would have been unable to provide any information regarding the Veteran's alleged exposure to herbicides during his military service nearly thirty years before the period on appeal. Furthermore, as explained in the merits section of the instant decision, any nexus opinion with regard to exposure to commercial herbicides could not, under the facts of this case, be based on anything other than pure speculation and remote possibility because it is not reasonably possible that the identity of the commercial herbicides in question could be determined, or whether the Veteran was actually exposed. For these reasons, VA has no duty to seek a medical opinion in this case. Therefore the Board finds no medical examination was required for the Veteran's claims for service connection. 38 C.F.R. § 3.159(c)(4). Similarly, no medical opinion was obtained regarding the appellant's claim for service connection for the Veteran's death. As discussed above, at his time of death the Veteran was not service-connected for any condition. The appellant and her representative have consistently asserted the Veteran's death was due to kidney disease, however the Veteran's pending claims for service connection for diabetes mellitus and renal disease were also denied. The Veteran's unchallenged cause of death was found not to be related to his military service due to a factual determination, and the Veteran was not service-connected for any other condition. Therefore, remand for a medical opinion is not necessary to decide this claim. 38 C.F.R. § 3.159(c)(4). Moreover, in his May 2013 written Supplemental Statement of the Case Response, the appellant's representative explicitly agreed that all required development was completed and additional remand was not required. As such, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for the cause of the Veteran's death is denied. Service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Service connection for renal disease, to include as secondary to diabetes mellitus, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs