Citation Nr: 1721883 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 03-11 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for type II diabetes mellitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service in the Army from November 1955 to November 1957. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2007, the Board denied the Veteran's claim for service connection for diabetes. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). An August 2010 Memorandum Decision vacated the September 2007 Board denial on the basis that the Board erred by not ensuring compliance with its prior remand directives. Specifically, the Court found that Board had not, as directed by the May 2004 remand, pursued alternative records, such as morning reports, sick reports, and Surgeon General Office records, in an attempt to corroborate the Veteran's reports of in-service herbicide exposure and in-service diabetes. The claim was remanded by the Board in May 2011, November 2013, and May 2015. In December 2016 correspondence, the Veteran advised that he was no longer represented by his attorney, and asked that the Board appoint a representative for him. In a March 31, 2017 letter, he was advised that the Board does not appoint representatives and was advised of his option to appoint a new one or to represent himself. VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative and VA Form 21-22a, Appointment of Individual as Claimant's Representative were provided to him to assist him with his appointment of a new representative. In response to the March 2017 letter, the Veteran completed both forms but left the name of the appointed representative blank. Accompanying those forms was a letter from the Veteran again asking the Board "to pick or chose [sic] an attorney to represent me with my claim." As the Veteran has already been advised that the Board does not appoint representatives, the Board will consider the Veteran to be unrepresented. 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 is not entitled to a presumption of exposure to herbicides and there is no competent and credible evidence establishing that he was exposed to herbicides during service. 2. Diabetes mellitus was not shown during service or for many years thereafter, and there is no competent evidence suggesting a relationship between the Veteran's diabetes and his active duty service. CONCLUSION OF LAW The criteria for establishing service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by December 2002, June 2004, and December 2006 letters. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service personnel records, post-service treatment records, and VA examination reports. The Board acknowledges that it has been determined that the Veteran's service treatment records were destroyed in the fire that occurred at the National Personnel Records Center (NPRC) in 1973. In a July 2013 memorandum, it was certified that they were unavailable. The Veteran was informed of their unavailability in a July 2013 correspondence. VA made multiple inquires to obtain records from alternative sources, including morning reports, sick reports, and Surgeon General Office records. An August 2013 NPRC response indicated that sick slips were discontinued in March 1953 and a September 2015 NPRC response indicated that there were no Surgeon General Office records pertaining to the Veteran. Morning reports were obtained in September 2015. The Board also notes that actions requested in the prior remands have been undertaken. In this regard, pursuant to the November 2013 remand, an addendum medical opinion was obtained in April 2014. Pursuant to the May 2015 remand, additional service department records, including morning reports and selective service records, were obtained in September 2015 and duplicate records were received June 2016. As noted above, in August 2013 and September 2015 record request responses from the NPRC indicated that there were no sick slips available for the Veteran as sick slips were discontinued prior to the Veteran's period of service; indicated that there were no Surgeon General Office records pertaining to the Veteran; and that there were no available records to confirm the Veteran's allegations of herbicide agent exposure. While additional service department records were obtained in September 2015, an additional addendum opinion is not required because the additional service department records do not in any way suggest that the Veteran had herbicide agent exposure during service. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, 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). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b) (2016); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2016). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2016). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of 10 percent within one year from date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, may be service connected if the requirements of 38 U.S.C.A. § 1116 (West 2014) and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(d), 3.309(e) (2016). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). However, the presumption of herbicide exposure applies only to veterans who serviced during the Vietnam era, from February 28, 1961 to May 7, 1975. As the Veteran did serve on active duty during this time frame, the presumptive provisions pertaining to Agent Orange exposure do not apply to his claim. 38 C.F.R. § 3.307 (a)(6) (2016). As an initial matter, the Board finds that the evidence of record confirms the Veteran has been diagnosed with Type II diabetes mellitus. With a current disability conceded, the issue before the Board becomes whether the Veteran's diabetes is related to his military service. Based on a thorough review of the claims file, the Board finds that service connection for diabetes mellitus is not warranted. In various correspondences, the Veteran has asserted that his diabetes is related to herbicide agent exposure while on active duty. However, the evidence of record is against a finding that the Veteran was exposed to herbicide agents. Specifically, the Veteran did not serve in the Republic of Vietnam, Korea, or in the Air Force or Air Force Reserves during an applicable presumptive period. Moreover, the assertions by the Veteran and his former representative regarding actual exposure to herbicide agents have been vague and lacked specific dates or locations of his asserted exposure. Rather the essence of their argument is that herbicide agents were used by the military since the mid-1940s and therefore he may have been exposed notwithstanding the fact that he did not serve in a location where the herbicides were widely used. Despite multiple attempts by VA to corroborate the Veteran's assertions, there is no evidence, other than the Veteran's assertions, that he had presumptive or actual exposure to herbicide agents. Moreover, he is not shown to have expertise in recognizing chemical compounds, such that he is competent to identify herbicide agents to which he may have been exposed. In this regard, his DD Form 214 notes his education level as completing 8 years. As a result, in-service herbicide agent exposure cannot be presumed or conceded. However, although the Agent Orange presumptive provisions do not apply, service connection for diabetes may be established if the evidence shows the Veteran's diabetes began during service, within a year of his discharge from service, or is otherwise related to service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has, at times, asserted that he has had diabetes since his discharge from service in November 1957, and in an August 2007 VA Form 646 the Veteran's representative stated that the Veteran's diabetes more likely than not developed during service. As previously noted, the Veteran's service treatment records are unavailable. However, the competent, credible, and probative evidence is against a finding that the Veteran had diabetes during service or within a year of his discharge from service. The Board has considered the Veteran's assertions that his diabetes manifested during or shortly after service, but finds that the Veteran is not an accurate historian and his reports are not credible because they are inconsistent with his prior statements and his post-service medical records. In the Veteran's initial July 2002 claim and various correspondences thereafter, he reported that he was diagnosed with diabetes in 1982. It was not until July 2006 that he began asserting that his diabetes had existed since his discharge from service in November 1957. Specifically, a November 1974 VA treatment record noted that the Veteran denied a history of diabetes, and on a November 1978 Health Questionnaire for VA dental treatment the Veteran indicated that he did not have a history of diabetes. Additionally, a May 1984 treatment record from Dr. Koerner noted that the Veteran had been diagnosed with diabetes for "several years;" a May 1984 record from the Michigan Department of Corrections record noted that the Veteran had been a diabetic for "years;" and a May 2008 treatment record from Dr. Lacy noted that the Veteran had a history of insulin-dependent diabetes for approximately 25 years. The weight of the lay and medical evidence indicates that the Veteran was not diagnosed with diabetes until many years after his separation from service. The Board finds the Veteran's express denial of having a history of diabetes on his November 1974 treatment record and November 1978 Health Questionnaire, and 1984 private medical records indicating a several year history of diabetes conflicts with and significantly outweighs the assertions from the Veteran and his representative that he had diabetes during and since service. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Thus, there is no competent and credible evidence of diabetes in service or for many years thereafter, and no competent evidence establishing exposure to herbicides in service. Moreover, the only medical opinion of record addressing a relationship between the Veteran's diabetes and service is against the claim. Specifically, in April 2014 opinion a VA clinician opined that the Veteran's diabetes was less likely than not related to the Veteran's military service. The examiner explained that there was no medical documentation in the claims file that confirmed treatment for or a diagnosis of diabetes mellitus prior to 1982. The clinician noted that the Veteran was stationed in Germany, but opined there was no documented evidence of herbicide agent use or storage in Germany. In conclusion, the Veteran did not serve during the Vietnam era and there is no competent and credible evidence showing the Veteran was actually exposed to herbicide agents during active service. Moreover, there is no competent and credible evidence of diabetes in service or for many years thereafter, and no competent evidence linking his diabetes to service. The only evidence of record indicating an association between the Veteran's diabetes and active duty service are lay assertions by the Veteran and his former representative. As lay persons, the Veteran and his former representative are not competent to diagnose diabetes or determine the etiology thereof, as such matters require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, their opinions are not competent medical evidence. The Board finds the Veteran's medical records and the opinion of the VA clinician to be of significantly greater probative weight than the lay assertions of the Veteran and his former representative. Accordingly, the preponderance of the competent, credible and probative evidence is against the claim and service connection for diabetes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs