Citation Nr: 1716461 Decision Date: 05/15/17 Archive Date: 05/22/17 DOCKET NO. 14-09 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Type II diabetes mellitus, to include as secondary to Agent Orange (AO) exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1958 to July 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this appeal for additional development in November 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran did not have in-service exposure to herbicide agents. 2. Diabetes mellitus did not have its onset in service or within a year of service discharge; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed diabetes mellitus is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for Type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). T required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. 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). Service treatment records, VA treatment records, and private treatment records have been obtained. The Veteran was given the opportunity to testify at a hearing before the Board, which he declined. In addition, development in substantial compliance with the Board's remand instructions has been completed, including obtaining VA treatment records, development of the question of herbicide exposure, providing a VA examination, and issuing a Supplemental Statement of the Case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided with a VA examination, which the Board finds to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Diabetes Mellitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after 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). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including diabetes mellitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Diabetes mellitus is a qualifying chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, if a veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus, shall be service connected if they manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Under 38 C.F.R. 3.307(a)(6)(v), a veteran with a qualifying Air Force Specialty Code who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed to an herbicide agent. Nevertheless, even if herbicide exposure is not presumed, a veteran may submit evidence to directly establish herbicide exposure while in service. An August 2002 private treatment record noted a diagnosis and treatment of diabetes mellitus. A July 2011 statement from Dr. P.V. also diagnosed the Veteran with diabetes mellitus and stated that the Veteran was diabetic when he began treatment in February 2008. Additional treatment records from November 2013 to May 2015 and January to July 2016 documented continuing treatment for diabetes mellitus. Such is sufficient evidence to meet requirements of Shedden element (1). The Veteran's primary theory of service connection is that his diabetes mellitus is the result of in-service exposure to herbicide agents such as Agent Orange. He does not allege exposure based on service in Vietnam or its inland waters. See 38 C.F.R. 3.307(a)(6)(i). Rather, as indicated in his March 2014 VA Form 9, the Veteran states that he served at Andersen AFB in Guam and was exposed to AO from incoming aircraft from Vietnam, especially during the Vietnam evacuation. The Veteran's DD-214 forms indicated that the Veteran served as a Fire Protection Supervisor at Andersen Air Force Base (AFB) in Guam. In this regard, a June 2015 government research response from the Air Force Historical Research Agency (AFHRA) stated that the Air Force had no record of any AO use, storage, or transiting through Andersen AFB. The archivist added that aircraft that visited Vietnam and later transited through Guam were not considered contaminated with AO, and therefore could not transfer AO to individuals in Guam. In addition, he noted that UC-123 aircraft that sprayed AO in Vietnam, if they transited Andersen AFB on the way to Vietnam, did so without AO, and that it was unknown whether any such aircraft transited Andersen AFB on their way back to the United States. Based on the foregoing, the Board finds that the Veteran is not entitled to service connection on the basis of AO exposure. The Veteran did not have an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on a C-123 aircraft. The results of a research request to determine whether aircraft transiting through Andersen AFB contained or were contaminated with AO were negative. The Veteran's belief that he was exposed to herbicide agents is outweighed by the findings made by AFHRA. The AFHRA had the benefit of looking at the complete historical records/archives of the Air Force. Thus, in light of the absence of competent evidence establishing exposure to herbicides, the preponderance of the evidence is against a finding of AO exposure, and service connection for diabetes mellitus on that basis must be denied. Turning to alternative theories of service connection, the Veteran's service treatment records were negative for any complaints, diagnosis, or treatment of diabetes. The Veteran's separation examination was negative for any reference to diabetes. There is also no record of a diagnosis of diabetes mellitus until 2002, long after discharge. Thus, the record does not reflect that the Veteran's diabetes manifested within one year of service or demonstrated continuous symptomatology since discharge. The Veteran is not entitled to service connection on a direct or presumptive basis. What remains for consideration is whether there is a nexus between the Veteran's service and his current diagnosis. There is no such evidence of record. To that point, in July 2016, a VA examiner opined that the Veteran's diagnosis was less likely than not incurred in service or within one year of service. The examiner rationalized this finding against the Veteran's negative service treatment records, stating that the Veteran was not diagnosed with diabetes mellitus until 2005. While the examiner misstated the year in which the Veteran was first diagnosed with diabetes mellitus, the error is immaterial, as the diagnosis would be long after discharge in either case. The Board affords this opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the absence of a diagnosis within one year of discharge, continuity of symptomatology, or competent medical evidence relating the Veteran's disability to service, the preponderance of the evidence is against service connection for diabetes mellitus. ORDER Entitlement to service connection for Type II diabetes mellitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs