Citation Nr: 1756549 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-07 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from June 1968 to February 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In the March 2010 rating decision, in pertinent part, the RO denied service connection for diabetes mellitus, type II. The Veteran was originally scheduled to testify at a hearing before the Board in May 2015. In April 2015, the Veteran informed VA he would be unable to attend and requested that it be rescheduled. In May 2016, the Veteran was scheduled for a hearing in June 2016. In June 2016, he withdrew his request for a hearing and therefore the Board will proceed to adjudicate his claim. This issue was previously remanded by the Board in July 2016. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during his active duty service. 2. The Veteran's diabetes mellitus, type II initially manifested many years after separation from service and is not shown to be etiologically related to service. CONCLUSION OF LAW Diabetes mellitus, type II was not incurred in or aggravated by service and may not be presumed to have been incurred in or as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran was not afforded a VA examination for diabetes mellitus, type II, but the Board finds that an examination is not warranted. As discussed in further detail below, the Veteran was not exposed to herbicides in service and the probative evidence does not show that there is any indication that the Veteran's current diabetes may be associated in any way with his service. Additionally, as discussed below, the Veteran's lay etiology opinion is not competent evidence. Therefore, the duty to obtain a medical opinion has not been triggered in connection with these issues. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board accordingly concludes that no examination is required to support the Board's adjudication of the claim of entitlement to service connection for diabetes mellitus, type II. Neither the Veteran nor his representative have 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has a current diagnosis of diabetes mellitus, type II. He contends that this disability is due to exposure to herbicides during his active duty service. Diabetes mellitus, type II, is among the diseases deemed presumptively associated with herbicide exposure under current law. 38 C.F.R. § 3.309(e). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. The record does not indicate, and the Veteran does not contend, that he ever served in the Republic of Vietnam. Instead, he contends that was exposed while serving in Okinawa, Japan. The Veteran's service personnel records indicate that he served in Okinawa. For claims of exposure in areas other than the Republic of Vietnam, the Korean Demilitarized Zone, Thailand, or Johnston Island, the Veteran must provide approximate dates, locations, and the nature of the alleged exposure to herbicides. If the Veteran does not provide this information, VA is to make a formal finding that sufficient information required to verify herbicide exposure does not exist. See M21-1 IV.ii.1.H.7.a. The only information the Veteran has provided regarding exposure is in the form of an April 2011 statement that Okinawa was a "staging area for Vietnam" and he was taught a "method of preserving weapons" that sometimes involved "moving barrels of unknown chemicals." He has provided no details about the dates or locations of his alleged exposure or any other details about the nature of his alleged exposure. In its July 2016 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to request this information from the Veteran. The AOJ did so in August 2016 but received no response. For this reason, the AOJ made a formal finding in September 2016 of a lack of information required to corroborate herbicide exposure. Based on the VA policy described above, the Board finds that the AOJ's actions in this regard were proper. The Veteran is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. In this case, he has professed no specialized ability to detect herbicide agents in the environment, and his assertions of exposure are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). His lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred, and his assertions must be weighed against other evidence of record, including the lack of documentary evidence of use of herbicides. Id. For these reasons, the Board finds that it is less likely than not that the Veteran was exposed to herbicides during his active duty service. The record does not reflect, and the Veteran does not contend, that diabetes mellitus, type II had its onset in service. The Veteran's service treatment records do not reflect any symptoms, complaint, or diagnosis of diabetes. The earliest mention of diabetes is in a December 2008 treatment record, nearly 40 years after the Veteran's separation from active duty service, that characterized the Veteran's diabetes as newly diagnosed. In addition to being a disability presumptively associated with herbicide exposure, diabetes mellitus is a chronic disease subject to presumptive service connection if it manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). As the Veteran's diabetes did not manifest within one year of his separation, presumptive service connection based on 38 C.F.R. § 3.309(a) is not warranted. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's sole lay assertions in this case is that his diabetes mellitus was caused by exposure to herbicide agents or "unknown chemicals." As the Board has found that he was not exposed to herbicide agents in service, his lay opinion regarding such exposure is not probative. Further, the Veteran has not identified other chemicals he believes are the cause of his diabetes mellitus and his assertion that "unknown chemicals" are the cause of his diabetes is essentially speculative. Thus, to the extent that the lay statements express an opinion that the Veteran's diabetes is etiologically related to exposure to "unknown chemicals," they are not competent opinions and they cannot be assigned any probative weight. Because the preponderance of the evidence is thus against finding that the Veteran's diabetes mellitus, type II is etiologically related to his active duty service, entitlement to service connection for diabetes mellitus, type II is denied. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs