Citation Nr: 18141437 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-44 007 DATE: October 10, 2018 ORDER Service connection for skin cancer metastases to left parotid and left neck lymph node is denied. Service connection for diabetes mellitus, type II is denied. FINDINGS OF FACT 1. The Veteran is not shown, and may not be presumed, to have been exposed to herbicides in service. 2. Diabetes mellitus, type II, was not first manifested on active duty or for many years after, and is not otherwise shown to be related to military service. 3. Skin cancer was not manifested on active duty or for many years after, and is not otherwise shown to be related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection of neck cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection of diabetes have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R § 20.900(c). Veteran served on active duty with the United States Army from February 1966 to January 1969. This matter comes before the Board of Veterans’ Appeal on appeal of a February 2015 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in San Juan, Puerto Rico. Service Connection for diabetes Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period; diabetes is a listed disease with a presumptive period of 1 year from separation from service. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). Service connection may also be presumed for certain listed diseases when manifested to a compensable degree in a Veteran who has been exposed to an herbicide agent such as was used in Vietnam or along the DMZ in Korea. 38 C.F.R. § 3.307 (a)(6). Diabetes mellitus, type II, is a listed disease, and the presumptive period is any time following exposure. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). A Veteran is presumed exposed to herbicides if he operated in or near the Korean DMZ between April 1, 1968 and August 31, 1071. 38 C.F.R. § 3.307 (a)(6)(iv). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis; a layperson is generally not capable of opining on matters requiring medical knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining 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 veteran 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. § 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 Veteran contends that his diabetes is a result of Agent Orange exposure. The Veteran contends that he was exposed to Agent Orange while serving along the DMZ in Korea during the years of 1968-1969. While the Veteran’s service in Korea was during the period when tactical herbicides were used, the Board concludes that the Veteran was not stationed or working in an area where the herbicide was used. Therefore, Veteran may not be presumed exposed. Records show that the Veteran worked in electric repair shops in Korea from March 1968 to January 1969. Veteran was stationed at Camp Humphreys but reports he occasionally commuted out to an electric repair shop over 50 miles away referred to as Foxtrot. Foxtrot was located at the Korean DMZ, this is where the Veteran says he was exposed to Agent Orange. However, the Joint Services Records Research Command (JSRRC) was unable to verify that Veteran was in an area in Korea which was exposed to Agent Orange. They reviewed the unit histories documents from Camp Humphreys where the Veteran was stationed. These records did not indicate any use, storage, spraying or transporting of Agent Orange or other herbicides. The DMZ area was not located anywhere near Camp Humphreys or within the 50 miles he reportedly commuted to work in the repair shop. JSRRC also reported that the records do not document any specific duties performed by the Veteran’s unit members along the DMZ. The JSRRC found that the information they found was not consistent with the Veterans memories. Therefore, where the Veteran was stationed in Korea does not qualify for relief under 38 C.F.R. 3.307(a)(6). Exposure to herbicides is not factually established or presumed, and service connection based on such is not possible. The Board has considered alternative theories of entitlement, to include presumptive service connection as a chronic disease, and direct service connection. 38 U.S.C.§ Vet. App. 38 C.F.R.§ While diabetes is a listed presumed chronic condition under 38 C.F.R. 3.309(a), the does not allege that diabetes had onset in service or for many years afterwards. Post service treatment records indicate an initial diagnosis of type two diabetes in 2012. Therefore, service connection as a presumptive chronic disease is not applicable. Further, the condition was not diagnosed in service and the Veteran does not allege any tie to service beyond herbicide exposure. The evidence of record also fails to raise any other potential nexus between service and currently diagnosed diabetes. Service Connection for skin cancer As stated above, Veteran contends his skin cancer on his neck resulted from Agent Orange exposure on a Korean DMZ. Veterans skin cancer is not a disease subject to presumptive service connection under 38 C.F.R. § 3.309, and presumptive service connection is not available. The Veteran may still factually establish a nexus to service, however. As is determined above, no actual or presumptive exposure to herbicides in Korea is established. The claims for service connection based on such exposure must therefore be denied. The Board notes that the Veteran has presented no evidence in support of a link between his skin cancer and herbicides other than his belief and reliance upon the presumptive provisions. As a layperson, the question of a nexus between the current diagnosis and herbicides, even if exposure was to be established, lies beyond his scope of knowledge and competence. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Further, the Veteran does not allege that skin cancer had its onset in service or for many years afterwards. Medical records do not show the condition in service, and post-service treatment records indicate a diagnosis of skin cancer in October 2013. No competent medical professional has opined positively regarding a nexus to service, and the Veteran himself has relied upon the herbicide presumptions. Therefore, service connection as a presumptive chronic disease or on a direct basis is not applicable. The Board concludes that, while the Veteran has a diagnosis of skin cancer, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). WILLIAM H. DONNELLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Emily A. Kotroco, Law Clerk