Citation Nr: 1800468 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-13 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia. In April 2016, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When the case was before the Board in June 2016, it was remanded for further development and adjudicative action. Specifically, the Board directed the RO to comply with the evidentiary development procedures provided in VA's Adjudication Procedure Manual. See Patton v. West, 12 Vet. App. 272, 282 (1999). Then, the Board instructed the RO to ensure that the Veteran was afforded a VA examination to determine the etiology of his diabetes and to thereafter readjudicate his claim in a Supplemental Statement of the Case and return it to the Board. The Board finds that the RO has substantially complied with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, neither the Veteran nor his representative have alleged any failure on the RO's part to comply with the same. FINDINGS OF FACT 1. The Veteran did not serve in an area where exposure to herbicide agents is presumed, and the most competent and probative evidence is against a finding that the Veteran was actually exposed to herbicide agents during service. 2. Diabetes mellitus, type II, was not shown in service or for many years thereafter, and the most competent and probative evidence indicates that the Veteran's diabetes mellitus, type II, is not related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). 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). In general, in order to prevail on the issue of service connection the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including diabetes, become manifest to a degree of 10 percent within one year from the date of termination of such 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be presumed for certain diseases, including diabetes mellitus, type II, if a veteran was exposed to certain herbicide agents, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2, 4-D; 2, 4, 5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). The Veteran contends that his diabetes is related to his active duty service. Specifically, he asserts that he was exposed to Agent Orange while stationed at Robins Air Force Base (AFB). During that time, the Veteran has indicated that on many occasions aircraft returned from missions with a molasses-type of substance that covered the bottom of the wings and fuselage, which he believed to be herbicide agents or other defoliants. The Veteran's military occupational specialty was crew chief for B-52s in the 465th Bomb Wing and his duties included washing the aircraft; this resulted in the solution of soap, water, and chemicals to come in contact with his skin and clothing. The Veteran also submitted information regarding a site analysis of Robins AFB Landfill #4/Sludge Lagoon, which indicates that pesticides were discovered in the soil sludge groundwater. Following a thorough review of the record, the Board finds that the competent and probative evidence of record is against a finding that the Veteran's diabetes was incurred in or caused by service. In an August 2015 response to the RO's request for information concerning the claimed herbicide agent exposure, the Compensation and Pension (C&P) Service indicated that the Department of Defense (DoD) list of locations outside of Vietnam and the Korean DMZ where tactical herbicide agents, such as Agent Orange, were used, tested, and stored does not show any use, testing, or storage of tactical herbicides at Robins AFB. The C&P Service indicated that the case should be referred to the Joint Services Records Research Center (JSRRC) for verification of herbicide agent exposure. A May 2017 response from the JSRRC reflects that there is no evidence that the Veteran or any personnel in his unit were exposed to Agent Orange or tactical herbicide agents while performing their daily duties on or around aircraft at Robins AFB. A May 2017 response from the Air Force Historical Research Agency (AFHRA) reflects that Robins AFB did not have Agent Orange stored or sprayed on it. Further, it was indicated that B-52 aircraft could not have had any Agent Orange "sticking" to them after conducting missions over South Vietnam as this would defy the laws of physics. Agent Orange, an oil based herbicide agent, was sprayed at no more than 500 feet high with no more than a 15 knot wind; because it is oil based, it is heavy and sinks into the ground quickly. B-52s, on the other hand, flew at 20,000 feet or more, above Vietnam, and therefore would never have been exposed to Agent Orange, as it cannot drift upwards. While the AFHRA acknowledged that aircraft were routinely scheduled for washing by aircraft maintenance crew, they determined that spilled and leaking hydraulic fluid mixed with water from bad weather, along with rubber thrown up from the runway when landing, accounted for the description that the Veteran gave regarding a sticky and slimy coating on the underside of the aircraft. Based on the foregoing, the AFHRA concluded that the Veteran had not been exposed to Agent Orange during his military duties. The record does not show that the Veteran served in an area where exposure to herbicide agents is presumed. See 38 C.F.R. § 3.307(a)(6)(iii)-(v). On his initial claim for compensation benefits, the Veteran reported that he served in Vietnam. However, he has since retracted that statement; service personnel records and a response from the Personnel Information Exchange System (PIES) confirm the Veteran did not service in Vietnam. Personnel records reflect that all his active duty service was within the continental United States, with the majority taking place at Robins AFB in Georgia from October 1966 to March 1970. Although the Veteran believes that he was exposed to herbicide agents during service and has referenced internet articles which indicate Agent Orange was present at Robins AFB, the Board finds the official DoD records regarding the usage, testing, and storage of herbicide agents to be significantly more accurate and probative than the Veteran's assertions and internet articles from unverified sources. Moreover, none of the articles he submitted indicate that the Veteran was actually exposed to herbicide agents. The Board does not doubt that the Veteran sincerely believes he was exposed to herbicide agents; however, his statements in this regard are not competent evidence and are outweighed by more competent and probative evidence. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). Simply stated, while some of the evidence he has submitted supports his claim, the Board finds that the best evidence in this case provides evidence against this claim. Accordingly, the Board finds that the probative evidence of record is against a finding that the Veteran was exposed to Agent Orange or any other herbicide agent during service. Accordingly, service connection for diabetes is not warranted on this presumptive basis. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The medical evidence of record reflects, and the Veteran does not dispute, that his diabetes was diagnosed in 2009, which is nearly forty years following his separation from service. Given that there is no evidence of the onset of diabetes within one year of separation from active service, presumptive service connection on that basis is also not warranted. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also notes that the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). There is no evidence of continuity of symptoms or chronicity such that service connection would be warranted under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1340. Moreover, the evidence of record contains a November 2016 medical opinion which recognizes the lack of evidence of herbicide agent exposure and which concluded that the Veteran's diabetes was less likely than not (less than 50 percent probability) related to service, reasoning that the onset date was nearly forty years following separation from service, and that there was no evidence of complaints, symptoms, or treatment for diabetes until 2009. This medical opinion is probative and there are no conflicting medical opinions of record; therefore, direct service connection is not warranted. See 38 C.F.R. § 3.303(d). Although the Veteran believes that his diabetes is related to service, as a lay person, he has not shown that he has the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of diabetes are matters not capable of lay observation and require medical expertise to determine. See 38 C.F.R. § 3.159. Thus, the opinion of the Veteran regarding the etiology of diabetes is not competent medical evidence. Consideration has also been given to the information submitted by the Veteran which indicates that contaminants such as VOCS, PCE, TCE, other organics, pesticides, metals, arsenic, chromium, and lead were found in soil sludge groundwater at Robins AFB. Initially, the Board notes that these contaminants do not fall under VA's definition of an "herbicide agent." See 38 C.F.R. § 3.307(a)(6). Additionally, the Veteran has not provided any competent information indicating that he was actually exposed to these contaminants while stationed at Robins AFB and has also not submitted any competent evidence suggesting an association between these contaminants and diabetes. The Board acknowledges that VA has not obtained an opinion regarding whether these contaminants could have caused the Veteran's diabetes; however, there is no evidence of record suggesting a possible link other than the Veteran's own lay statements. As noted above, the Veteran does not possess the medical expertise to provide an opinion on the etiology of diabetes. See 38 C.F.R. § 3.159. Therefore, the Board finds there is no duty to obtain a medical opinion in this regard. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In sum, the preponderance of the competent and probative evidence is against the claim, and service connection for diabetes is not warranted. The Board acknowledges the Veteran's honorable service to our country and is sympathetic to the fact that he has this medical condition; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached. VA's Duties to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by a number of letters to the Veteran dated December 2009, May 2013, and October 2015. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case as all identified records have been obtained and the Veteran has been provided with a VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have alleged that VA failed to satisfy any of its duties to notify and assist the Veteran. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). ORDER Service connection for diabetes mellitus, type II, is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs