Citation Nr: 18142687 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 18-28 369 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide agent exposure is denied. Entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as due to herbicide agent exposure is denied. Entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as due to herbicide agent exposure is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam or in any other region where herbicide agent exposure is presumed by the Department of Veterans Affairs. 2. There is no competent, probative evidence that the Veteran was exposed to herbicide agents while on active duty. 3. The Veteran’s diabetes mellitus type II was not present during his active service; was not manifest to a compensable degree within one year of separation from active duty; and the most probative evidence indicates that it is not causally related to his active service. 4. The Veteran’s left lower extremity peripheral neuropathy was not present during the Veteran’s active service; was not manifest to a compensable degree within one year of separation from active duty; and the most probative evidence indicates that it is not causally related to his active service. 5. The Veteran’s right lower extremity peripheral neuropathy was not present during the Veteran’s active service; was not manifest to a compensable degree within one year of separation from active duty; and the most probative evidence indicates that it is not causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as due to herbicide agent exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1961 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested an opportunity to testify before a Veterans Law Judge at a videoconference. The Veteran was duly notified of the time and date of the hearing which was scheduled for September 2018. The Veteran, however, did not appear for this hearing and neither furnished an explanation for his failure to appear nor requested a postponement or another hearing. As such, the Board finds that the request to testify before the Board has been withdrawn. 38 C.F.R. § 20.704. The Veteran has not been afforded a VA examination for his service connection claims on appeal. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed further below, there is no competent evidence that the Veteran was exposed to herbicide agents in service, that his claimed disabilities were present in service or within the applicable presumptive period, or any indication that the Veteran’s current disabilities may be related to an in-service injury or disease. Thus, the Board finds that a VA examination is not necessary to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 79. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within an applicable presumptive period after discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309. The option of establishing presumptive service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. At 54.   1. Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide agent exposure The Veteran asserts that he was exposed to herbicide agents while stationed at Anderson Air Force Base (AFB) in Guam, causing diabetes mellitus type II (diabetes). The record reflects a current diagnosis for diabetes. The next question is whether this disease is related to the Veteran’s military service. Service treatment records show no complaints, treatment or diagnoses related to diabetes. Relevant examinations at separation from service in February 1965 were normal, including the endocrine system and a urinalysis which tested for sugar. There is also no evidence of record that the Veteran’s diabetes manifested within a year of discharge from active duty and he does not contend otherwise. The earliest record of the Veteran’s diabetes is from April 2016. Although his private medical doctor suggests that the Veteran suffered from diagnosis prior to 2016, the doctor did not provide a specific date. Given the above, the preponderance of the evidence is against a finding that diabetes had its onset during service, or that it manifested to a compensable degree within the first year after discharge from service. The next question is whether there is evidence that the Veteran was exposed to the types of herbicide agents that VA presumes to cause diabetes. 38 C.F.R. § 3.307(a)(6). The Board notes that the Veteran does not assert that he served in the Republic of Vietnam or any other location where VA would presume he was exposed to herbicide agents. Id. For example, he did not serve in the Republic of Vietnam, nor did his service involve visitation to the Republic of Vietnam. Although no legal presumption of herbicide agent exposure has been satisfied, the Veteran is nevertheless entitled to show that he was exposed to herbicide agents while in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). V. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994). Military personnel records reflect that the Veteran was stationed at Andersen AFB from October 1963 to March 1965 and that he served in the commissary as a pricing clerk. Within the store, he worked the cash register, assisted in maintaining sanitation throughout the store, managed non-perishables, or worked in dry storage. There is no evidence on record, including in the Veteran’s statements, that he handled or otherwise encountered herbicide agents. Research of the Veteran’s potential exposure to herbicide agents was completed in July 2017 and found no evidence that the Veteran had been exposed. The Veteran was asked to submit additional evidence in May 2017 for further research but he did not respond. In support of his claim, the Veteran argues that Andersen AFB “has been identified by the U.S. Environmental Protection Agency (EPA) as having hazardous substances there,” including solvents such as TCE and paint thinners, dry cleaning fluids, pesticides, and aircraft cleaning compounds. He also states that lead, chromium, TCE, toluene, and tetrachloroethene have been found in the ground water beneath Andersen Air Force Base. He contends that these chemicals “along with Agent Orange that was likely stored and or used at Andersen Air Force Base” caused his diabetes (emphasis added). For purposes of the applicable presumptive regulation, 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 6, 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)(i). The record contains no indication that the hazardous substances the Veteran reports were identified by the EPA at Andersen Air Force Base were “herbicide agents” which would trigger the legal presumption of service connection for diabetes mellitus. Anderson Air Force Base is not on the Department of Defense listing of locations where herbicide agents were stored or used. Even assuming for the sake of argument that the EPA report cited by the Veteran indicated that an herbicide agent had been identified at Anderson Air Force Base, there is no indication in the record that it was present during the Veteran’s tour of duty there or that he was actually exposed to it. In other words, the mere presence of some evidence of herbicide agents at Andersen Air Force Base would not be sufficient to demonstrate that the Veteran was actually exposed. There is no indication, nor has the Veteran contended, that he handled herbicide agents, participated in any activity that would have exposed him to herbicide agents, or that any part of the facility he came in contact with, such as the commissary, was actually exposed to herbicide agents at the time he was there. In other words, the Veteran asks the Board to find that merely showing some evidence of some chemical compounds now present at Anderson Air Force Base demonstrates that he must have been exposed to herbicide agents during his period of service. However, evidence of the presence of chemicals at Andersen Air Force Base does not demonstrate that the Veteran was exposed to any of those chemicals or Agent Orange during his period of military service; in other words, the purported link in this case is too attenuated based on the evidence of record. Finally, the Board notes that the record contains no probative evidence linking the Veteran’s current diabetes to his active service. The only medical opinion of record suggesting a link between the Veteran’s diabetes and his military service is a letter submitted by Dr. Bhavsar, the Veteran’s doctor for “several years.” Dr. Bhavsar opined that there is “a 50-100% chance he may have developed the disease as a result of exposure to Agent Orange,” as the Veteran did not have a family history of diabetes. However, as set forth above, the Board has concluded that the Veteran was not exposed to an herbicide agent, including Agent Orange, during active service. Thus, Dr. Bhavsar’s opinion is insufficient to establish service connection. In summary, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents which would raise the presumption of service connection for conditions such as diabetes. See 38 C.F.R. §§ 3.307, 3.309. In addition, diabetes was not present during service or within one year of separation, and there is no competent evidence linking diabetes to an established in-service disease or injury. As such, the preponderance of the evidence is against the claim for service connection for diabetes, claimed as due to herbicide agent exposure. 2. Entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as due to herbicide agent exposure 3. Entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as due to herbicide agent exposure The Veteran also asserts that he has peripheral neuropathy of the left and right lower extremities as a result of his exposure to herbicide agents while stationed at Anderson Air Force Base. For the reasons discussed above, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents during his period of active service. Moreover, service treatment records show no complaints, treatment or diagnoses related to peripheral neuropathy. At his February 1965 military separation medical examination, the Veteran’s lower extremities and neurological system were examined and determined to be normal. There is also no evidence of record that the Veteran’s peripheral neuropathy manifested within a year of discharge from active duty and he does not contend otherwise. Finally, the record contains no probative evidence linking any current peripheral neuropathy to an established in-service injury or disease. As such, the preponderance of the evidence is against the claim for service connection for peripheral neuropathy, claimed as due to herbicide agent exposure. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel