Citation Nr: 1744293	
Decision Date: 10/04/17    Archive Date: 10/13/17

DOCKET NO.  16-20 462	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for diabetes mellitus type II.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from May 1964 to May 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In August 2016, the Veteran testified by videoconference from the Cleveland RO before the undersigned Veterans Law Judge sitting in Washington, D.C.  

In November 2016, the Board remanded the matter primarily for further development of the Veteran's contention of in-service Agent Orange exposure, which was done in April 2017.  No additional action is needed.

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).


FINDING OF FACT

The Veteran's diabetes mellitus, which was diagnosed more than 45 years after service, is not related to service.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).  



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks service connection for diabetes mellitus, to include as due to Agent Orange exposure.  He specifically contends that he may have been exposed to herbicides/Agent Orange via his encounter with casualties from the Vietnam battlefield.  See Board hearing Transcript, pp. 8-9.  He asserts that he may have been cross contaminated when working on patients wounded by "Pungee Stakes," which he asserts were contaminated with Agent Orange.  See Veteran's March 2016 substantive appeal/Form 9.  

The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Legal Criteria

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; 38 C.F.R. § 3.303.  "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 also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), such as diabetes mellitus, if manifested to a compensable degree within 1 year from the date of separation from service.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases, including diabetes mellitus type II, shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  

II.  Analysis

The Veteran does not allege, and the evidence does not show, that he was diagnosed with or treated for diabetes mellitus during service.  See, e.g., Veteran's May 2014 claim for service connection, in which the Veteran advised of diabetes mellitus since "late 2014."  

As for a post-service diagnosis, VA medical records do indeed reflect a diagnosis of diabetes mellitus since 2014.  However, this is more than 45 years after the Veteran's 1966 separation from service, and there is insufficient evidence of an earlier diagnosis of diabetes, such as within one year after separation from service.  There is insufficient lay or medical evidence of a direct link between the Veteran's remote onset diabetes and his military service.  Service connection for diabetes mellitus type II on a direct basis under 38 C.F.R. § 3.303 or under the presumptive provisions of 38 C.F.R. § 3.309(a) is therefore not warranted.

As for the Veteran's theory of service connection for diabetes due to Agent Orange exposure, the Veteran does not allege, and military records do not show, that the Veteran served in Vietnam (or any other location in the Pacific theater) during his military service, so the Veteran's exposure to herbicides, such as Agent Orange may not be presumed.  38 C.F.R. § 3.307(a)(6)(iii) through (v).  However, the Veteran is not precluded from establishing service connection under 38 C.F.R. § 3.309(e) with sufficient proof of actual direct exposure.  See, e.g., Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that a veteran is also entitled to service connection if he can establish that a disability warrants service connection on a direct or presumptive basis). 

As indicated previously, the Veteran contends that he may have been directly exposed to Agent Orange via direct contact with Agent-Orange-contaminated body fluids of wounded Vietnam war soldiers, military records confirm that he worked as an Operating Room Specialist during service; however, he has provided no corroborative evidence in support of his contention that this work entailed his own exposure to Agent Orange.  The Board accordingly finds this aspect to be mere guesswork and speculation, and of no probative weight.  See, e.g., Bloom v. West, 12 Vet. App. 185, 187 (1999).  

Indeed, according to VA's Agent Orange unit, "there is no scientific evidence available to VA showing that being in the vicinity of . . . living or deceased personnel from Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects. This includes the claim of performing surgery on military personnel."  See April 2015 guidance from VA's Central Office Agent Orange unit.  This is highly probative evidence against the contention that there was in-service exposure to herbicides via remote and secondary exposure.

As for the Veteran's contention that he handled Agent-Orange-contaminated punji stakes during his stateside service, this too is mere speculation, as the Veteran has presented no corroborative evidence in support of this contention.  Moreover, the Board is not convinced that Vietnam War soldiers, who would have first received treatment in the warzone, would then arrive for stateside medical care with punji stakes still in their bodies.  Common sense reflects that the foreign objects like a punji stake would not still be present all the way from Vietnam to Georgia; and the Veteran has presented no evidence that refutes this impression.  Furthermore, even assuming, arguendo, that the Veteran's medical team did come across a punji stake in a combat soldier's body, according to VA's Agent Orange Unit, the Viet Cong coated their punji stakes with excrement, not Agent Orange.  The Board consequently finds that this aspect of the Veteran's claim, namely, that he handled Agent-Orange-contaminated punji stakes retrieved from battlefield casualties, is both not competent or credible.  Thus, the in-service injury, disease or event element of the claim is not established.

The Board accordingly finds that the preponderance of the evidence is against the claim under all contended theories.  As such, the benefit-of-the-doubt doctrine does not apply and service connection for diabetes mellitus is therefore not warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  


ORDER

Service connection for diabetes mellitus is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs