Citation Nr: 1801970 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to an herbicide agent. REPRESENTATION Veteran represented by: West Virginia Department of Veterans Assistance ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran had active service from April 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran requested a Board hearing. See VA Form 9 of April 2014. A Board videoconference hearing was scheduled to be held on November 4, 2015 at the Huntington, West Virginia RO. The Veteran was notified of the hearing date by a letter of September 2015. The Veteran failed to appear for the hearing without explanation or a request for postponement. Therefore his request for a hearing is considered to be withdrawn. See 38 C.F.R. § 20.702(d) (2017). The Board remanded this matter in November 2015 for further evidentiary development. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent during active duty service. 2. Type II diabetes mellitus did not manifest in service or within a year of service discharge, and the competent and probative evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed type II diabetes mellitus and his service. CONCLUSION OF LAW Diabetes mellitus type II was not incurred in or aggravated during service, and it may not be presumed to have been incurred in or aggravated during service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA has satisfied the notification and duty-to-assist provisions of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VCAA notice was provided to the Veteran by letters of February 2011 and March 2016. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes service treatment records, service personnel records, private treatment records, and statements of the Veteran. The Veteran has identified no outstanding evidence pertaining to his disabilities that could be obtained to substantiate the claim, and the Board is unaware of any such outstanding evidence. The Veteran underwent a VA examination in May 2011. While diabetes mellitus type 2 was diagnosed as a current disability, no nexus opinion was provided. VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, the evidence does not establish that the Veteran suffered an event, injury, or disease in service and does not indicate that his type 2 diabetes mellitus may be associated with any such in-service event, injury, or disease. Accordingly, a VA medical opinion is not warranted. The Board finds that the agency of original jurisdiction substantially complied with the Board's remand instructions of November 2015. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Elements of Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). For certain chronic diseases, including diabetes mellitus, shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service-connected. See 38 C.F.R. §§ 3.303(b) (2017). For the listed chronic diseases, a showing of a continuity of symptomatology is an alternative method of establishing service connection. See U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a) (2017). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. These diseases include type II diabetes mellitus. See 38 U.S.C. § 1116(a) (2012); 38 C.F.R. § 3.309(e) (2017). The presumption is rebuttable. See 38 C.F.R. § 3.307(d) (2017). VA's Adjudication Procedure Manual, M21-1, provides that exposure to an herbicide agent may be considered on a direct/facts-found basis if a veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. See M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C. §§ 1154(a), 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any issue material to the determination of a matter is resolved in a claimant's favor. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Analysis The Veteran has diabetes mellitus type 2. See May 2011 VA examination report; May 2006 record of Dr. N. T. The Veteran seeks service connection for his diabetes on the theory that he was exposed to herbicides while serving in the Air Force in Thailand. See Veteran's claim of December 2010; Veteran's statements of October 2012 and June 2017; VA Form 9 of April 2014. The Veteran's service personnel records show that he worked as a cook and was stationed at Don Muang Air Base and Korat Air Base in Thailand from 1969 to 1970. The Veteran has further alleged that he served in the Republic of Vietnam. See Veteran's statement of March 2011. His service records, however, show no Vietnam service, and the Veteran has also specifically stated that he served in Thailand only and not in the Republic of Vietnam. See Veteran's statement of June 2017; Veteran's claim of December 2010. The Board finds that the Veteran did not have service in the Republic of Vietnam. Following the Board's remand of November 2015, the Veteran was asked for the approximate dates, location, and nature of his alleged herbicide exposure. See VA letter of March 2016. In April 2016, VA made a formal finding of a lack of information required to verify exposure to Agent Orange. The VA memorandum noted that the Veteran failed to respond to VA's request for information and did not provide the information needed to make a request of the U.S. Army and Joint Services Records Research Center (JSRRC) and/or sufficient information to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The Veteran, as a layperson, is competent to testify as to what he has observed and experienced. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, the Veteran offers no recollection or other evidence that his duties as a cook brought him in close proximity to the perimeter of the bases or that he was exposed to an herbicide agent while in Thailand. His argument is that no one really knows how far Agent Orange might have travelled in the air when used. See Veteran's statements of October 2012 and June 2017; VA Form 9 of April 2014. The Veteran only speculates as to possible exposure to an herbicide agent. The preponderance of the evidence is against finding that the Veteran's duties in Thailand placed him near the base camp perimeter where herbicides are known to have been used, or that the Veteran was actually exposed to an herbicide agent. Therefore service connection is not warranted based on a theory of exposure to an herbicide agent during Thailand service in the Vietnam era. The possibility of presumed service connection based on herbicide exposure does not preclude a claimant from establishing service connection by proof of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, there was no disease or injury during the Veteran's service. The service treatment records note no symptoms of diabetes. The separation examination report of May 1971 showed normal laboratory test results for blood, and no diabetic symptoms were noted in the report. Because the Veteran did not engage in combat with the enemy, the combat provisions of 38 U.S.C. § 1154 (2012) are not applicable. The Veteran underwent a VA examination in May 2011. Diabetes mellitus type 2 was diagnosed, and no nexus opinion was offered. The Veteran reported that his diabetes was first diagnosed in 1985 as part of a physical examination for a job. When filing his claim in December 2010, the Veteran stated that he had been treated for diabetes since October 1999. Because there is no evidence that the Veteran's diabetes mellitus had its onset during service or within a year of service separation, service connection is not warranted based on the presumption relating to chronic diseases. See 38 C.F.R. § 3.303(b) (2017). The Board has considered the Veteran's statements as to his exposure to herbicides while in Thailand, but the remainder of the record, which is devoid of any indication that the Veteran was actually exposed to herbicides, is more persuasive. To the extent that the Veteran is contending that his disability is related to his service, he is not competent to determine the etiology of a disability such as type II diabetes mellitus. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In the absence of evidence indicating that the Veteran has the medical training to render a medical opinion as to his disability, the Board must find that his contentions with regard to the cause of his type II diabetes mellitus to be of no probative value. See 38 C.F.R. § 3.159(a)(1) (2017). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to an herbicide agent is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs