Citation Nr: 1751162 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-01 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure during service. 2. Entitlement to service connection for a bilateral eye disorder, to include diabetic retinopathy and/or glaucoma, to include as secondary to herbicide exposure during service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2015 at which time it was remanded for additional development to include a resubmission of the case to the Joint Services Records Research Center (JSRRC) for a review of all relevant unit histories. The Board finds that there has been substantial compliance with the Board's April 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). It is now returned to the Board. FINDINGS OF FACT 1. The Veteran did not serve in a unit stationed in the Korean Demilitarized Zone (DMZ) during the period from April 1, 1968 and August 31, 1971; thus, there is no presumption that he was exposed to herbicides while serving on active duty. 2. The Veteran's diabetes mellitus did not manifest in service, or within one year of service, and is not related to service or to an incident of service origin. 3. The Veteran's bilateral eye disorder did not manifest in service, or within one year of service, and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not all been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a bilateral eye disability have not all been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking to establish service connection for his diabetes mellitus and bilateral eye disorder, on a presumptive basis, due to his alleged exposure to herbicide agents while stationed in Korea from January 1970 to February 1971. On his claim for service connection in August 2011, the Veteran noted his claims as diabetes due to exposure to Agent Orange in Korea and diabetic retinopathy (blind in the left eye). 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 (West 2014); 38 C.F.R. § 3.303(a) (2017). "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). Alternately, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. The Veteran's bilateral eye disorder is not on the list. 38 U.S.C.A. §§ 1101, 1112, (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Certain specified diseases will be presumed service-connected due to herbicide exposure during service, if they manifest to a compensable degree at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, such as Agent Orange, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). These diseases include diabetes mellitus. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. VA's Adjudication Procedure Manual (M21-1MR) contains a list of service units that have been recognized by the DOD as having served in areas along the Korean DMZ. Exposure to herbicides is to be conceded for Veterans who allege service along the DMZ in Korea and were assigned to certain units between April 1968 and August 1971. See M21-1MR at IV.ii.2.C.10.q. The Veteran's assigned unit is not listed among those recognized by the DOD as having been stationed along the Korean DMZ. VA has considered whether the Veteran was exposed to herbicides despite the fact that he was not in a unit listed in M21-1MR to fall within the presumption of exposure. However, the preponderance of the evidence is against the Veteran's claim. JSRRC analysis indicated there was no record of the Veteran's claimed exposure to herbicides, and that review of the available historical records showed that 516th Light Equipment Maintenance Company was stationed at Camp Grant, Ascom, Korea, approximately 26 miles from the DMZ. In an Administrative Decision received in June 2017, the JSRRC issued a formal finding dated May 31, 2017. The JSRRC determined that the Veteran's unit was not stationed in the DMZ and that there was no evidence of exposure to herbicide agents by the Veteran while serving in Korea. JSRRC determined that they reviewed the 1970 unit history submitted by the 335th Maintenance Battalion, the higher headquarters of Veteran's unit, the 20th General Support Group, and the 1970 Chronology submitted by the 8th United States Army. The records did not indicate that the Veteran's unit was located at Camp Casey during the reporting period. The history does not document the use, storage, spraying, or transportation of herbicides at Camp Grant, nor does it mention or document any specific duties performed by the unit members along the DMZ. JSRRC acknowledged that while the record indicates that the Veteran's unit was at Camp Casey for a softball tournament in August 1970, they were unable to corroborate service along the DMZ and/or exposure to Agent Orange. The JSRRC concluded that none of the units assigned to Camp Casey in August 1970 are on the M21-1MR list for presumptive exposure to Agent Orange. While the Board has previously conceded that the Veteran traveled to Camp Casey for a softball tournament, in order to meet the criteria for the presumption, the regulation requires that the Veteran's unit be stationed in the DMZ, as determined by the DOD. The Veteran was stationed at Camp Grant in Korea; however, the above-cited respective proximities to the DMZ do not establish exposure. It should be noted that the regulatory presumption only applies to units which the DOD has determined were in areas in or near the DMZ in an area in which it is known that herbicides were used. The fact that the Veteran's unit is not included in the list is evidence that the DOD has not determined that herbicides were known to have been applied in areas where the Veteran's unit operated. In a September 2011 statement, the Veteran indicated that he served in Korea, south of the DMZ, from January 1970 to March 1971 and was exposed to herbicides. The Veteran stated that he was on the DMZ for one week in August 1970 and handled electronic parts that came from the Korean DMZ and Vietnam. In the Veteran's January 2013 substantive appeal, he indicated that he was stationed at Camp Grant but spent time in Camp Casey. The Veteran noted that while he was stationed primarily at Camp Grant, he was part of the motor pool for ASCOM and transported supplies to other camps. In February 2015, the Veteran submitted research regarding Agent Orange in Korea, indicating that it was kept at Camp Market, a camp near Camp Grant. The Veteran submitted a letter dated August 16, 2011, from a different veteran who stated that he was stationed at Ascom Depot and that Agent Orange was stored, shipped, and handled within the compounds of his unit at Ascom Depot. In that August 2011 letter, this other veteran stated that he saw several drums of Agent Orange barrels with warning placards and an orange stripe around them. The letter indicates that there were times when the barrels were punctured by the forklifts. He stated that the documentation on Agent Orange at Ascom Depot did not exist or were not kept. In the October 2017 IHP, the Veteran states, through his representative, that he was not assigned to Camp Casey but traveled there for the softball tournament. The IHP indicates that the Board previously conceded this point and that the question is whether he was exposed to herbicides while visiting Camp Casey. The Board finds that the Veteran's statements as well as the evidence he has submitted to support his claim do not show exposure to herbicide agents. The Board points out that showing that the Veteran was near the DMZ does not show that he was exposed to herbicide agents there. Again, mere service in or near the DMZ does not in itself show exposure to herbicides. Moreover, while the Veteran is competent to report what he observed, the Board does not find him to be competent as a layperson to establish what chemical agents were used in the areas he served. The Board notes that the Veteran has submitted a previous Board decision granting service connection for non-Hodgkin's lymphoma as due to herbicide exposure in Korea to support his argument. However, previous Board decisions are not precedential, and are not binding on Board decisions in other cases. 38 C.F.R. § 20.1303; McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The Board decision in this claim rests on the specific facts of the case at hand. I. Diabetes mellitus The Veteran is claiming service connection for diabetes due to exposure to Agent Orange while serving in Korea. Service treatment records (STR) indicate no treatment for or diagnosis of diabetes during service. Medical treatment records from August 1986 and the October 2011 VA examination indicate that the Veteran was diagnosed with diabetes mellitus, Type II on September 20, 1985. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To that end, the Board has considered whether there is otherwise a direct link between the Veteran's diabetes mellitus and service. His service treatment records make no mention of diabetes and he has also not alleged that his diabetes mellitus had an onset in service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between diabetes mellitus and any incident of the Veteran's service. The Veteran's VA treatment records indicate a diagnosis of diabetes mellitus but include no comment or opinion relating the diagnosis to diabetes mellitus to service. Therefore, while the Board acknowledges that the Veteran is currently diagnosed with diabetes mellitus, there is no indication of manifestation of diabetes during service or within the one-year period thereafter. In addition, after considering the length of time between service and post-service diagnosis and determining that the Veteran does not meet the requirements for any relevant presumptions, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus on a presumptive basis. As discussed above, service and post-service treatment records are evidence against the Veteran's claim on a direct theory of entitlement. STRs contain no evidence of symptoms attributed to diabetes during service or at separation from service. The Veteran does not contend that he had any manifestation of diabetes during service or that any aspect of his service, other than the claimed exposure to Agent Orange, caused the diabetes. The Veteran bases his claim solely on presumptive service connection through exposure to Agent Orange. Thus, the Board finds that direct service connection for diabetes is not warranted. For these reasons, the Board finds that the preponderance of the evidence weighs against the claim of service connection for diabetes mellitus; consequently, the claim must be denied. The preponderance of the evidence is against all the theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. Bilateral eye disorder STRs indicate no evidence of treatment for or diagnosis of a bilateral eye disorder. The October 2011 VA examination report indicates a diagnosis of primary open angle glaucoma associated with ocular hypertension. The report indicates that visual acuities were unremarkable and there was no evidence of diabetic retinopathy. The examiner concluded that the Veteran's glaucoma was not a result of or exacerbated by the Veteran's diabetes. The report indicates that the Veteran has had glaucoma since 1999. Medical treatment records from August 1986 indicate that the Veteran reported problems with visual blurring in his left eye and was having diplopia. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To that end, the Board has considered whether there is otherwise a direct link between the Veteran's bilateral eye disorder and service. His STRs make no mention of an eye disorder and he has also not alleged that his eye disorder had an onset in service. The record first notes that the Veteran reported blurring in his left eye in 1985. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, there is no probative medical evidence or medical opinion suggesting that there may be an association between the Veteran's bilateral eye disorder and the Veteran's service. The Veteran's VA treatment records indicating a diagnosis of a bilateral eye disorder includes no comment or opinion relating his diagnosis to service. As discussed above, service and post-service treatment records are evidence against the Veteran's claim. STRs contain no evidence of symptoms attributed to an eye disability during service or at separation from service. The Veteran bases his claim solely on presumptive service connection through exposure to Agent Orange and does not contend that he had any manifestation of a bilateral eye disorder during service or that any other aspect of his service caused the bilateral eye disorder. Thus, the Board finds that direct service connection for a bilateral eye disability is not warranted. Regarding secondary service connection, as discussed above, service connection has been denied for the Veteran's claimed diabetes mellitus disability; therefore, service connection secondary to a diabetes mellitus disability is not warranted for the Veteran's bilateral eye disorder. For these reasons, the Board finds that the preponderance of the evidence weighs against the claim of service connection for a bilateral eye disorder; consequently, the claim must be denied. The preponderance of the evidence is against all the theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure during service, is denied. Service connection for a bilateral eye disorder, to include diabetic retinopathy and/or glaucoma, to include as secondary to herbicide exposure during service, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs