Citation Nr: 18142678 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-54 017 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran’s unit was not present in or near the Korean DMZ and, therefore, he is not presumed to have been exposed to herbicide agents; he is not otherwise shown to have been exposed to herbicide agents. 2. Diabetes mellitus was not shown in service or for many years thereafter and there is no competent evidence suggesting the condition is related to service. CONCLUSION OF LAW The criteria for establishing service connection for diabetes mellitus have not been met. 38 U.S.C. § 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1966 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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 38 C.F.R. § 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 diabetes mellitus becomes manifest to a degree of 10 percent within one year from 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 (2018). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii) (2018). Additionally, Section 3.307(a)(6)(iv) extends the presumption to Veterans who served between April 1, 1968 and August 31,1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307 (a)(6)(iv). Notwithstanding the foregoing presumption provisions for herbicide agent exposure, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends his diabetes mellitus is related to herbicide exposure during service. His official service record does not show that he served in Vietnam. He does not contend otherwise. Rather, he asserts that he served in Korea and was exposed to herbicide agents therein while serving as security police on the perimeter of the base. The medical evidence of record reflects that the Veteran has been diagnosed with diabetes mellitus, type II. Specifically, private treatment records show he was diagnosed with diabetes mellitus in April 2009. In addition, records dated March 1995 show a history of acute diabetes mellitus insipidus secondary to subarachnoid hemorrhage. The first element of service connection, a current disability, is met. As for the question of whether he was exposed to herbicide agents, which would trigger the presumption of service, there is no corroborative evidence. The Veteran has stated his personal belief that he was exposed to herbicides while serving in Korea as security police. In support thereof, he submitted a copy of a temporary duty (TDY) order requiring him to be stationed in Korea at the Osan Air Base, effective January 29, 1968 for approximately 15 days. His service personnel records do not document his actual stationing or service in Korea. His personnel records show duty only in CONUS and the Philippine Islands. However, even if service in Korea was established, the evidence does not show that he served in or near the Korean DMZ or was otherwise exposed to herbicide agents. In addition, the Board notes that in August 2015, the Veteran submitted military personnel records which include a hand-written notation indicating that he was on TDY in January 1968 serving as “security (augment existing forces),” and the assignment included “Korea USS Pueblo Naval Intelligence vessel seized by N. Korea.” The crew of the USS Pueblo is recognized by VA as having a qualifying assignment that would have resulted in exposure to herbicide agents. However, the Veteran’s military personnel records received from the National Personnel Records Center (NPRC) do not contain such notation on the identical document. The Board does not find the Veteran’s August 2015 submitted personnel record credible or probative. In this regard, had he served on TDY in January 1968 on assignment on the U.S.S. Pueblo, his personnel records received from the NPRC would have likely reflected this. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board acknowledges that the Veteran submitted a letter dated January 1968 that he had written to his now-wife during his service, in which he stated that there might be a chance he would have to go to Korea. However, the letter also fails to establish that the Veteran served in or near the Korean DMZ. It is also makes no reference to the USS Pueblo. As the Veteran did not serve in a unit that, as determined by the DOD, operated in or near the Korean DMZ, and the document submitted by the Veteran with respect to the USS Pueblo is not deemed credible, presumed exposure to herbicides is not warranted. There is no probative evidence establishing he was actually exposed to herbicide agents during his service. To the extent the Veteran is claiming he is entitled to the presumptive service connection due to exposure to herbicides while serving near the perimeter of the base as security police, the presumptive provisions governing the base perimeter only apply to service in Thailand. The Veteran’s service did not include Thailand. Accordingly, the Board finds there is no competent and probative evidence indicating that the Veteran was exposed to herbicide agents (Agent Orange) during his military service. Service connection on a presumptive basis as due to herbicide agent exposure is not warranted. Turning to alternate theories of service connection, service treatment records show no indication of diabetes mellitus in service. Such would preclude service connection on a direct basis. Further, as diabetes mellitus was not diagnosed until many years after service discharge, presumptive service connection as a chronic disease pursuant to 38 C.F.R. § 3.309(a) is also not warranted. The Veteran does not contend his diabetes mellitus is related to service for reasons other than alleged herbicide exposure and there is no medical evidence of record suggesting that the claimed condition is related to service. The Board acknowledges that no medical examination or opinion was obtained in regard to the claim for service connection for diabetes mellitus. However, as there is no competent and credible evidence of diabetes mellitus in service or competent evidence suggesting a relationship between the Veteran’s diabetes mellitus and service, no examination or opinion is warranted. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (noting where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible a VA examination is not required). Additionally, a mere conclusory generalized lay statement that an in-service event or illness caused the Veteran’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that VA examination and/or opinion is not necessary. While the Veteran asserts that his diabetes mellitus is related to his service, he has not shown that he has 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). In this regard, the etiology of his diabetes mellitus is not capable of lay observation, and requires medical expertise to determine. Accordingly, the Veteran’s opinion as to the etiology of diabetes mellitus is not competent medical evidence. In summary, there is no competent and probative evidence of record that demonstrates the Veteran was exposed to herbicide agents during service, there is no competent evidence of diabetes mellitus in service or within one year following discharge from service, and there is no competent evidence of record linking his diabetes mellitus to service. The preponderance of the evidence is against the claim and service connection is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Medina, Associate Counsel