Citation Nr: 1702061 Decision Date: 01/26/17 Archive Date: 02/09/17 DOCKET NO. 12-32 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Meehan, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas, which in part denied service connection for diabetes mellitus due to Agent Orange exposure. The Veteran requested a hearing via videoconference in Nov 2012, but later cancelled on December 10, 2014. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during service. 2. Diabetes mellitus did not manifest itself within one year after separation and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus including as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated April 2011. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained, as have relevant private medical records identified by the Veteran. The Veteran was diagnosed and has been treated by VA medical staff, although he has not received a VA medical examination specific to his claim for this service connection. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C.A. § 5103A(d)(2) (2014); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that there is no evidence establishing that an event, injury, or disease occurred in service and VA therefore has no duty to provide a medical examination. Consequently, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Merits The Veteran claims service connection for diabetes mellitus. Specifically, he claims to have been exposed to herbicides during service in Korea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases like diabetes mellitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a presumption of service connection arises when certain diseases with a relationship to herbicide exposure, such as diabetes mellitus, manifests to a degree of 10 percent or more following service in areas with known exposure, including in or near the Korean Demilitarized Zone (DMZ) at any time during the period from April 1, 1968 to August 31, 1971. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). To determine whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The record indicates that the Veteran served with A Battery, 3rd Battalion, 81st Artillery in Camp Colburn, Korea. VA has acknowledged the use of herbicides on the Korean Demilitarized Zone (DMZ) from April 1968 to July 1969, and that specific units determined by VA or the Department of Defense (DOD), listed in VA Adjudication Procedure Manual, M21-1 (M21- 1), as being at or near the Korean DMZ during that time period. 38 CFR 3.307; M21-1, Part IV, Subpart ii, 1.H.4.a. It was noted that if a Veteran was assigned to one of these units, exposure to herbicides is conceded. However, the Veteran's unit (81st Artillery) is not one of the units specifically identified in M21-1 as being at or near the Korean DMZ. Additionally, available maps indicate that Camp Colburn was located a substantial distance south from the DMZ. In March 2006, the Veteran stated that he was exposed to Agent Orange at Camp Colburn in support of another claimed disability not on appeal. VA treatment records establish that the Veteran was diagnosed with diabetes mellitus in June 2011, over 42 years after leaving service. Service treatment records are silent for any complaints of, treatments for, and diagnosis of diabetes mellitus. Because a diagnosis of a current disability is established, presumptive service connection is warranted if the evidence establishes service in an area where herbicides were known to be used. The Veteran's initial claim of service connection for diabetes mellitus in March 2011 simply stated that his diabetes was due to Agent Orange exposure. No further information was provided. When a Veteran claims exposure to herbicide in Korea, and the veteran did not serve between April 1, 1968 and August 31, 1971, or did not serve in a unit or entity other than those identified by VA and the DOD as operating in the Korean DMZ, the M21-1 instructs that a request must be made to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. M21-1, Part IV, Subpart ii, Chap. 1, Sec. H.4.c. VA made a formal finding in June 2011 that information of record was insufficient to send to the Joint Services Records Research Center (JSRRC), or the National Archives and Records Administration (NARA), to investigate and verify the Veteran's exposure to Agent Orange. After the RO denied his claim for service connection in September 2012, the Veteran submitted a statement in October 2012, in which he stated that he was sprayed in two instances by C130's that were flying side by side while at Camp Colburn. The Veteran submitted another statement in November 2012 explaining that his unit of assignment was actually classified and that his real location was not in military records; however, he provided no alternative unit or location of service, or otherwise describes how the nature of the classified duties or missions would result in herbicide exposure. Upon consideration of all the evidence in conjunction with the applicable laws and regulations, the Board finds that the Veteran was not affiliated with a presumptive unit identified by VA or the DOD and listed in M21-1 as being at or near the Korean DMC during service. The Veteran's official service records that place the Veteran in Camp Colburn Korea with A Battery, 3rd Battalion, 81st are more probative and credible than the Veteran's vague and/or unsubstantiated statements regarding his unit, location of service, and incidents of exposure. In October 2012, the Veteran stated he was exposed at Camp Colburn by two C130 aircraft, but later remarks that his service role and location were classified and thus not in his military records. Beyond these conflicting and unsubstantiated statements, there is no further evidence in support of his contentions that he was exposed to aircraft spraying herbicides, served in a classified unit or mission, or that he was assigned to a unit described in M21-1. The presumption of service connection is therefore unavailable to the Veteran under the circumstances of this case. The Board also finds that the Veteran's diabetes mellitus did not manifest during service or to a degree of 10 percent within one year following discharge from service, and thus the chronic disease service connection presumption therefore does not apply. Rather, the record demonstrates that the Veteran was diagnosed over 42 years after leaving service, and there is no evidence competent or credible lay or medical evidence of a connection between service and the current diabetes diagnosis. In summation, the Board finds that that the evidence weighs against a finding that the Veteran was exposed to herbicides during service, and that the Veteran's diabetes is otherwise unrelated to his service. Beyond the Veteran's own vague and or unsubstantiated statements regarding his exposure at Camp Colburn or on unspecified classified duties, he has provided no credible evidence suggesting exposure to herbicides. The Board reiterates that official service department records are available and are deemed more probative of the Veteran's service assignment. As the preponderance of the evidence weighs against the claim, service connection for diabetes mellitus is denied. ORDER Entitlement to service connection for diabetes mellitus, including as due to exposure to herbicides, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs