Citation Nr: 1627894	
Decision Date: 07/13/16    Archive Date: 07/22/16

DOCKET NO.  05-22 791A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for diabetes mellitus Type II associated with herbicide exposure.


REPRESENTATION

Appellant represented by:	Nevada Office of Veterans' Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Prem, Counsel

INTRODUCTION

The Veteran served on active duty from July 1959 to January 1967.  Thereafter, he has service as a member of the Navy Reserve.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was remanded in August 2013 for further development.  

The Veteran presented testimony at a Board hearing in March 2013.  A transcript of the hearing is associated with the Veteran's claims folder. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The weight of the evidence is against a finding that diabetes mellitus type II was manifested during the Veteran's active service or for many years after service, nor is it otherwise related to service, to include as due to exposure to herbicide agents. 


CONCLUSION OF LAW

The criteria for an award of service connection for diabetes mellitus type II, to include as due to herbicide exposure, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

In October 2003, March 2009, and April 2009 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015).  The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide.  The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2015).  VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015).  Relevant service treatment and other medical records have been associated with the claims file.  

The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his diabetes mellitus.  In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board feels that an examination is not required.

McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  The standards of McLendon are not met in this case as the evidence of records fails to suggest that diabetes mellitus, first reported many years post service, had its onset in service or is otherwise related thereto.  The duties to notify and to assist have been met.  

Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At the Veteran's hearing, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. 

Service Connection

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Exposure to certain herbicide agents, to include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975).  38 U.S.C.A. § 1116(f).  If a Veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus, among other diseases, shall be service-connected even though there is no record of such disease during service.  38 C.F.R. § 3.309(e).

"Service in the Republic of Vietnam" may include 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).  It is established law that a Veteran must have set foot on the land mass of Vietnam, or have been present in the inland waterways (so-called "brown water" naval activity) of that country during the statutory period in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

The Veteran has acknowledged that he did not set foot in Vietnam (see Notice of Disagreement and Hearing Transcript (in Virtual VA)).  Consequently, there is no presumption that he was exposed to herbicides.

However, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis.  See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2014) and 38 C.F.R. § 3.303(d) (2015).  

The Veteran alleges that he was exposed to Agent Orange "and other volatile chemicals" on an almost daily basis, as his usual duties included loading and unloading bombs containing these chemicals (see Notice of Disagreement).  At his Board hearing, he testified that he loaded napalm.  He testified that he was diagnosed with diabetes in approximately 1988; but that it started off as low blood sugar.

Pursuant to the Board's August 2013 remand, the RO sought to determine whether there was evidence of the Veteran having been exposed to herbicides.  The U.S. Army & Joint Services Records Research Center (JSRRC) obtained and reviewed the deck logs of the U.S.S. Constellation (where the Veteran was stationed).  In January 2016, it submitted a memorandum in which it stated that it reviewed numerous official military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam Era.  In noted that it found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the U.S. to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides.  Additionally, it stated that it could not document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam.  It stated that therefore "the JSRRC can provide no evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era."   

The Board finds that the preponderance of the evidence weighs against a finding that the Veteran was exposed to herbicides.  Consequently, presumptive service connection for diabetes as due to herbicide exposure, is not warranted.

With regard to whether the Veteran's diabetes mellitus is otherwise related to service, the Board notes that the service treatment records contain no findings attributable to diabetes mellitus.  The Veteran was noted to be 203 pounds (obese) in February 1966 (VBMS, STRs, 1/18/67, p. 92).  The Veteran's January 1967 separation examination yielded normal findings.  Urine was negative for sugar and albumin (VBMS, STRs, 1/18/67, p. 47).  Similar findings were noted on a May 1967 re-enlistment examination (VBMS, STRs, 1/18/67, p. 85) and in numerous examinations taken in conjunction with the Veteran's service in the reserves.

An annual physical examination report dated March 1974 reflects an abnormal endocrine system.  The examiner noted the Veteran's obesity (VBMS, STRs, 1/18/67, p. 106).  In an annual Report of Medical History dated in April 1989 the Veteran reported that a civilian doctor noted sugar in his urine approximately one year earlier; urine was normal at the most recent check-up (VBMS, STRs, 1/18/67, p. 47).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The Board notes that the Veteran has satisfied the first element.  The post-service treatment records reflect a diagnosis of diabetes (see Dr. G.P. treatment records, VBMS, 12/23/03).  

It is the second and third elements in which the Veteran's claim falls short.  The Board notes that the service treatment records fail to reflect any findings attributable to diabetes mellitus.   Moreover, the Veteran underwent numerous examinations after his January 1967 discharge.  These examination reports also fail to reflect any findings attributed to diabetes.  Treatment records from Dr. G.P. date back to April 1995.  Moreover, the diagnosis of diabetes is noted at that time.  The Veteran testified that he was diagnosed in 1988.  In either case, the preponderance of the evidence weighs against a finding that diabetes was incurred during service or within a year of service.  Consequently, the second element of service connection is not met.

Finally, the post service treatment records that reflect a diagnosis of diabetes fail to include a nexus opinion linking diabetes to service.  As noted above, the standards of McLendon are not met in this case as the evidence of records fails to suggest that diabetes mellitus, first reported many years post service, had its onset in service or is otherwise related thereto.  

In the absence of in-service findings of diabetes and in the absence of a nexus linking the Veteran's current diabetes to service, the Board finds that a preponderance of the evidence weighs against the claim.

As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for diabetes mellitus must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Entitlement to service connection for diabetes mellitus is denied.





______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs