Citation Nr: 1747862	
Decision Date: 10/25/17    Archive Date: 11/01/17

DOCKET NO. 14-28 903	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1962 to January 1966.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

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).

In May 2016, the Board remanded the Veteran's claim for additional development. His claim has since returned to the Board for further consideration.


FINDING OF FACT

The Veteran's diabetes mellitus, type II is not related to service.


CONCLUSION OF LAW

The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C.A. §§ 1101, 1110, 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

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C.A § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

As noted above, in May 2016, the Board remanded the diabetes service connection issue to the AOJ for additional development. The Board received a formal finding from Compensation Services regarding the Veteran's service. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

II. Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).

III. Herbicide Agent Exposure

Service connection may be granted on a presumptive basis for certain diseases, associated with exposure to herbicide agents. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).

Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

A. Diabetes mellitus, Type II

The Veteran seeks entitlement to service connection for diabetes mellitus, type II. He asserts that he was exposed to Agent Orange while serving in Guam for 120 days in 1965 and that this exposure caused his current diabetes mellitus. See, e.g., Statement in Support of Claim received in July 2012; VA Form 9, Appeal to Board of Veterans' Appeals, received in August 2014. VA treatment records show that the Veteran has a current diagnosis of diabetes mellitus, type II.

On December 23, 2016 VA requested information from the Veteran regarding the approximate dates, locations, and nature of the alleged exposure to herbicides; however, the Veteran has not responded to this request.

Due to the lack of response from the Veteran regarding how he was exposed to Agent Orange and on the findings of the Compensation Services, VA has determined that the information required to corroborate herbicide exposure described by the Veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records.

The Veteran's service treatment records (STRs) show that the Veteran served in Guam in 1965.

In the Veteran's VA Form 9, the Veteran stated that herbicides were stored, used, and transported to and from Guam between the 1950s and 1970s. The Veteran stated that he watched herbicides being sprayed around the perimeter of the military base where he was stationed.
Based upon information provided to Compensation Services by the Department of Defense (DoD), it was found that DoD has not identified any location on the island of Guam where Agent Orange was used, tested, stored, or transported. According to DoD, Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. DoD further stated that there were no combat operations on Guam during those years and so there was no need for Agent Orange use there. Additionally, DoD noted that Guam was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships.

According to DoD, routine base maintenance activities such as range management, brush clearing, and weed killing were performed with commercial herbicides at all military bases worldwide, and not through the use of Agent Orange.

Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). All evidence shows that any herbicide use the Veteran or others observed, or were associated with, was the commercial variety, not Agent Orange.

Regarding the Veteran's references to other individuals who were stationed in Guam during the 1960s that are service connected for disabilities related to Agent Orange exposure, they are dissimilar to the instant case. For example, regarding the Board decision referenced by the Veteran, service connection was granted, in part, due to a positive medical opinion regarding the etiology of that veteran's illness. Here, the Veteran has not submitted competent evidence that states that his diabetes mellitus is related to service, to include Agent Orange exposure. Regarding the rating decision referenced by the Veteran, service connection was granted based upon exposure to Dioxin, and a positive medical opinion regarding the etiology of that Veteran's diagnosis to Dioxin. Here, the Veteran does not contend that he was exposed to Dioxin, nor, as stated previously, has he submitted competent evidence that his regarding the etiology of his diagnosis. Thus, the Board does not find these two decisions persuasive in assisting the Veteran with his claim.

The Veteran has supplied a news article that states that Agent Orange was present in Guam. The article claims that the U.S. Court of Appeals for Veterans ruled in 2005 that a veteran was exposed to Agent Orange in the late 1960s. However, the ruling discussed by the article is actually the same Board decision that is referenced above, (not a Court ruling), and is not similar to the instant case for the reasons stated. Accordingly, the Board assigns the article low probative value.

The Board finds as fact that the Veteran was not exposed to Agent Orange in Guam. The Department of Defense has stated it was not used on Guam, and the Board accords such determination high probative value, as DoD would be in the best position to know what was used in Guam while service members were stationed there, and the rationale provided is logical (no combat in Guam and Agent Orange used for combat operations).

The Veteran states he was diagnosed with diabetes in 2003, although the earliest documentation of a diagnosis is in 2008.

Diabetes mellitus is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). As such, an analysis of the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms, "continuous" post-service symptoms, or manifesting within one year of service separation at 38 C.F.R. § 3.307 apply to the appeal for diabetes.

For a chronic disease, such as diabetes mellitus, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).

Service connection may also be established with certain chronic diseases, including diabetes mellitus a based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Based on the preceding, entitlement to service connection for diabetes is not warranted on the basis of a chronic disease in service or on the basis of the presumption related to chronic diseases. Stated differently, diabetes was not noted during service or within one year of separation. In the Veteran's December 1965 separation examination, it was noted that the Veteran's urine was negative for both albumin and sugar. In the attached Report of Medical History completed by the Veteran, he denied a history of sugar or albumin in his urine. Such evidence tends to establish that the Veteran did not have diabetes mellitus during service. There are no documented records of it manifesting within one year following service. As stated above, the Veteran has not alleged having diabetes mellitus either in service or soon after service, but more than 30 years after service.

In sum, there is no competent and credible evidence of a nexus between the Veteran's diabetes mellitus and service. The Board has considered the Veteran's lay statements, which are probative insofar as they report symptomatology capable of lay observation, see Layno, 6 Vet. App. 465; however, to the extent that the Veteran attempts to provide a nexus between his diabetes disability and active service, such statements are afforded no probative value given the Veteran's lack of related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis and etiology of diabetes is a complex medical issue and the Veteran's statements alone cannot establish a nexus to service.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for diabetes mellitus. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to Agent Orange, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs