Citation Nr: 1804001 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 15-41 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to August 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for diabetes mellitus. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDING OF FACT Diabetes mellitus did not have onset during active service, did not manifest within one year from separation from active service, and was not etiologically related to or caused by service, to include herbicide (Agent Orange) exposure. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017. The Veteran's complete service treatment records could not be located. An enlistment examination and dental records, but no other service treatment records, are associated with the claims file. The RO has determined that the Veteran's service treatment records are no longer available and further efforts to obtain the records would be futile. The RO has submitted multiple requests for these records. The National Personnel Records Center (NPRC) has indicted that they are unable to locate more service treatment records and that further efforts would be futile. See September 1995, March 2002, October 2003 and April 2006 NPRC Letters. In an appeal such as this, in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist a veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). II. Service Connection The Veteran claims that his current diabetes mellitus is due to herbicide (Agent Orange) exposure while serving in Thailand. 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. § 1110 (2012); 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)). 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. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Type II diabetes mellitus is a condition subject to presumptive service connection based on Agent Orange exposure. See 38 C.F.R. § 3.309 (e). Here, the Veteran did not serve in the Republic of Vietnam. The adjudication manual used by VBA, the M21-1MR, provides directions for claims based on exposure to herbicide agents while serving at a Royal Thai Air Force Base (RTAFB) in Thailand during certain periods. M21-1MR Section IV.ii.2.C.10.q. This begins by stating that the compensation service has determined that special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Next, it sets out steps to verify exposure to herbicides when a veteran with service in Thailand during the Vietnam War claims a disability based on herbicide exposure. Step one has two parts: The first part is to determine if the veteran served at one of several RTAFBs. The second part is to determine if the veteran served 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 reports, or other credible evidence. If the step is met, then VA is directed to concede herbicide exposure on a direct or facts-found basis. Military Personnel Records confirm that the Veteran served at U-Tapeal Airfield in Thailand starting in January 1970 through September 1970 during the Vietnam War Era, however, the AOJ made a formal finding that the Veteran was not exposed to herbicide agents during his service. See May 2013 Memorandum. Based on Department of Defense information, the AOJ detailed limited herbicide exposure testing in Thailand and concluded that the Veteran was not located near these testing sites, as they were not near any U.S. military installation or the Royal Thai Air Force Base. See August 2011 Memorandum. Although the Veteran and his spouse have asserted their belief that he was exposed to Agent Orange while driving a maintenance truck across perimeter lines during service in Thailand, their assertions amount to no more than speculation. The Veteran's personnel file does not show that his work duties placed him near the air base perimeter. As such, the more probative evidence does not establish such proximity or exposure to herbicides during service in Thailand. Presumptive service connection based on Agent Orange exposure is precluded. The lack of unavailability of a presumption does not mean that the disability, in this case diabetes mellitus, cannot be granted on a direct causation basis. See Palovick v. Shinseki, 23 Vet. App. 48 (2009) and Stefl v. Nicholson, 21 Vet. App. 120 (2007). Available service treatment records contain no complaints of or treatment for a diabetic condition. On April 1961 enlistment examination, clinical evaluations were normal with the exception of pes planus noted. The report of medical history contained no complaint of a diabetic condition. The first documentation of diabetes mellitus was in May 2012 private treatment records that stated hemoglobin A1c tests were consistent with diabetes. In June 2013, the Veteran established VA treatment for his diabetes condition. July 2015 VA treatment records list diabetes mellitus, type II, as an active problem. Considering the evidence of record, under the law and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus. As noted above, available service treatment records are negative for any diagnosis or symptom of diabetes mellitus. Further, the Veteran does not contend that such condition incurred during service. There is no evidence that the first manifestation of diabetes mellitus occurred within the first post-service year after the Veteran's discharge from service in August 1981. As such, service connection on a direct or presumptive chronic basis is not warranted for his disability. Here, the record demonstrates that the Veteran has a current diagnosis of type II diabetes mellitus; however, the evidence is against a finding that his disability is related to active duty service. The evidence does not show that he sought treatment for his current disability immediately following his period of service or for many years thereafter. Post-service, May 2012 private treatment records document A1c levels consistent with diabetes, more than 30 years after service. Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to weigh against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board notes that the Veteran had the opportunity to file a claim for his diabetes mellitus disability given the fact that he filed a claim for other disabilities in July 1994 and July 2003; however he did not do so until April 2011. The Board finds that the evidence does not establish an in-service injury, disease, or relevant event involving the Veteran's diabetes mellitus. Therefore, VA has no duty to provide an examination. Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated. In view of the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicides while on active duty. Consequently, any evidence indicating that his claimed diabetes mellitus as a result of exposure to Agent Orange is not probative. Accordingly, the preponderance of the evidence is against granting service connection for diabetes mellitus, on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs