Citation Nr: 1748686 Decision Date: 10/30/17 Archive Date: 11/06/17 DOCKET NO. 13-35 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to December 1969. This matter is before the Board of Veterans' Appeal (Board) on appeal from an October 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction has been transferred to the VA RO in Huntington, West Virginia. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has been diagnosed with type II diabetes mellitus. 2. The Veteran was not exposed to herbicide agents during military service. 3. The evidence of records fails to demonstrate that it is at likely as not the Veteran's diabetes mellitus was incurred in or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any other 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 a duty to assist argument). 2. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. The Veteran contends that his type II diabetes mellitus was caused or aggravated by his military service, as a result of herbicide exposure. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption for certain chronic diseases, to include diabetes mellitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If there is not sufficient evidence that the currently diagnosed chronic disease was chronic in service or within presumptive period, a veteran may still be entitled to presumptive service connection if continuity of symptomatology is demonstrated. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). In claims for service connection due to Agent Orange exposure, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971 in a unit that operated in or near the Korean DMZ, shall be presumed to have been exposed during such service to certain herbicide agents, including Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116 (a) (West 2014); 38 C.F.R. § 3.307, 3.309 (2016). With regards to the first element of service connection, it is established from the medical and lay evidence of record that the Veteran currently suffers from type II diabetes mellitus. See June 2011 Medical Treatment Records. Therefore, the record clearly establishes the first element of service connection, a current disability. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's diabetes mellitus was incurred or aggravated during service. Review of the Veteran's service treatment record documents no evidence of chronic complaints, treatment, or diagnosis of diabetes mellitus while on active duty. The Veteran contends that he was exposed to herbicide agents during his active service in Korea. His records show that he had overseas service in Korea during the applicable time for Agent Orange exposure therein. However, the records do not show not that he was assigned to a unit that has been recognized as having served in the DMZ during the presumptive period for Agent Orange/herbicide exposure (he served Battery B, 6th Battalion, 80th Artillery, 7th Infantry Division). M21-1, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10, Subsection (p). Furthermore, in July 2011, the service department determined that there were no records that the Veteran had been exposed to herbicides. The Veteran's medical records do not indicate a diagnosis of diabetes mellitus until 2010, which was forty-one (41) years after the Veteran's discharge from service. See July 2011 VA Examination. The Veteran underwent a general VA examination in July 2011. The examiner noted that the Veteran did have a diagnosis of diabetes mellitus. Although the examiner did not provide an opinion regarding the etiology of the Veteran's diabetes mellitus, another examination is not necessary because there is no competent evidence of an in-service event, or that the Veteran's current disability is otherwise related to service as discussed above. As noted above, the Board finds that Veteran was not exposed to an herbicide agent, specifically Agent Orange, during his service time in Korea. Additionally, the Veteran, has not provided any additional details alleging any in-service event or diagnosis that could be related to his current disability. As discussed above, the service treatment records do not support the Veteran's claim of onset of his disability during service. In fact, the Veteran was not diagnosed until nearly four decades after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions that he may make as to onset during service with subsequent continuity of are not supported by the objective evidence of record. Regarding the presumption in favor of chronic diseases and the continuity of symptomatology, the Board notes that the Veteran has been diagnosed with type II diabetes mellitus. For VA purposes, diagnosis of type II diabetes mellitus is a chronic disease, thus warranting consideration under 38 C.F.R. § 3.309(a). However, in order for the presumption under 38 C.F.R. § 3.309 to apply the disability must manifest to a compensable degree within one year of discharge from service. However, in this case the Veteran was not diagnosed with diabetes mellitus until at least forty (40) years after service, which is more than one year of discharge from service. See 38 C.F.R. § 3.309. Furthermore, neither does the Veteran show a continuity of symptomatology with regards to his diabetes due to the length of time between discharge and complaints of diabetic complications. Id.; Walker, 708 F.3d at 1377. Since the Veteran's diabetes mellitus did not manifest to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, the presumption in favor of chronic diseases is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board recognizes the difficulties associated with the Veteran's diabetes mellitus. However, in this case, the assertion as to whether the Veteran's diabetes was caused or aggravated by service, to include herbicide exposure, is an etiological question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorder. While he is competent to report what he experienced, he is not competent to ascertain the etiology of his diabetes, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The objective evidence ultimately outweighs the Veteran's lay contentions that his disability is related to service. See Jandreau, 492 F.3d at 1372. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury or disease, or that the Veteran's diabetes mellitus is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. §5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for type II diabetes mellitus is denied. ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs