Citation Nr: 18145906 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-29 136 DATE: October 30, 2018 ORDER Entitlement to service connection for elevated triglycerides, to include as due to herbicide exposure is denied. Entitlement to service connection for hematuria, to include as due to herbicide exposure is denied. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran’s elevated triglycerides and hematuria do not constitute disabilities eligible for service connection. 2. The Veteran was not exposed to herbicides in service. 3. The Veteran’s diabetes mellitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for elevated triglycerides, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for hematuria, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d. 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1). Diabetes mellitus type II is a condition associated with herbicide exposure. 38 C.F.R. § 3.309 (e). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). The dispositive issue in this case is whether the Veteran was exposed to herbicides. Although veterans who served in Vietnam are presumed to have been exposed to herbicides, the Veteran did not serve in Vietnam as that term is defined in the applicable regulation. See 38 C.F.R. § 3.307 (a)(6). The service personnel records do reflect, however, that the Veteran was stationed at Korat Royal Thai Air Force Base (Korat RATFB). The Veteran stated that he was exposed to herbicides as a result of his service in Thailand and Laos. The Veteran submitted an article referencing a 1973 Department of Defense report entitled Project CHECO Southeast Asia Report: Base Defense in Thailand. The Veterans Benefits Administration (VBA) issued a memorandum of record regarding general herbicide use in Thailand during the Vietnam Era in August 2015. VBA reviewed several reports, including the aforementioned Project CHECO Report in determining whether veterans who served in Thailand were exposed to herbicides. VBA noted that the Department of Defense list of sites where tactical herbicides were used, tested, and stored revealed that limited testing of tactical herbicides was only conducted in Thailand from April 2, 1964 through September 8, 1964, near Pranburi, Thailand. The CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, but it indicated sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Thus, the memorandum noted, if a veteran’s military occupational specialty (MOS) or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. The memorandum provided an example of security police units as an MOS that would have worked on the perimeters. It was also noted that there were no records to show that the same tactical herbicides used in Vietnam were used in Thailand. The Board finds that the Veteran did not describe any incident of exposure to herbicide agents which rises above mere speculation. He did not describe actual handling of herbicide agents or being in proximity to containers marked as containing herbicide agents. The Veteran did not describe any personal expertise in identifying herbicide agents in the air, on foliage, on wildlife, or on vehicles. His assertions in this regard are the equivalent of an inconclusive medical opinion, as discussed in McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board finds that the Veteran’s MOS as a Generator Operator, to include his security clearance noting he accessed nuclear weapons, was not the type of occupation which would be expected to have placed him near the base perimeter; and the Veteran does not assert that he had any duties at or near the perimeter. Although the Veteran was in receipt of the Vietnam Service Medal, this was awarded to all members of the Armed Forces of the United States serving at any time between July 4, 1965, and March 28, 1973, in Thailand, Laos, or Cambodia or the airspace thereover in direct support of operations in Vietnam. Similarly, the Republic of Vietnam Campaign Medal was awarded to all service personnel within the cited theater, and it, too, is not determinative of presence in Vietnam. See Army Regulation 672-5-1, 28; Haas, 525 F.3d 1168 (Medals reflecting Vietnam service are not sufficiently indicative of service on the landmass of Vietnam or inland waterways). The Veteran does not contend, nor does the record reflect, that he served in Vietnam. Rather, he bases his exposure to herbicides on his service in Thailand; and alleged duty in Laos. The Veteran points to a January 2015 Agent Orange Registry (AOR) examination as evidence of exposure to Agent Orange and a nexus between said exposure and his claimed disabilities. However, the AOR is simply a list of Vietnam-era Veterans who wish to be notified about possible long-term health problems that may be related to Agent Orange exposure during their military service. Participation in this registry does not establish that a Veteran was exposed to Agent Orange, only that the Veteran has asked to be kept informed about Agent Orange-related developments. The Veteran has not detailed with any specificity his exposure to herbicides, other than his presence in Thailand and Laos. Accordingly, the Board finds that there was no actual exposure to herbicide agents or commercial herbicides in service. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. Entitlement to service connection for elevated triglycerides and hematuria, to include as due to herbicide exposure The Veteran contends that his elevated triglycerides and hematuria are the result of herbicide exposure in service. At the outset, it is noted that hematuria is defined as blood in the urine. See Dorland’s Illustrated Medical Dictionary 845 (31st ed. 2007). The Veteran’s service treatment records do not reveal any reference to elevated triglycerides or hematuria. The Veteran’s July 1969 separation examination was normal. The Board finds that the Veteran’s elevated triglycerides and hematuria are laboratory findings, and are not disabilities in and of themselves eligible for service connection within the meaning for applicable law and regulations. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). For the reason set forth above, as the evidence demonstrates no current disability with respect to the claims on appeal upon which to base a grant of service connection, there can be no valid claim for that benefit. See Shedden, 381 F.3d at 1167; Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143-44. The Board emphasizes that this is because the elevated triglycerides and hematuria are laboratory findings, and are not disabilities in and of themselves eligible for service connection. Because a current disability has not been shown by the evidence, the Board does not reach the additional questions of in-service injury, disease, or event, or the relationship between any such current disability and service. In light of these findings, the Board concludes that service connection for elevated triglycerides and hematuria is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure The Veteran contends that his diabetes mellitus is the result of herbicide exposure in service. As the Board has determined the Veteran was not exposed to herbicides as a result of his active service, presumptive service connection is not applicable. The Veteran may still establish service connection on a direct basis. However, the preponderance of the evidence is against the Veteran’s claim. The Veteran’s service treatment records are absent of complaints of, treatment for, or a diagnosis of diabetes mellitus. The Veteran’s July 1969 separation physical was normal and the Veteran reported that he was in good health. A January 2015 VA treatment record indicated the onset of the Veteran’s diabetes was 2006. There is no objective medical evidence relating the Veteran’s diabetes mellitus to his active service. As noted above, the Veteran’s treatment records are absent of complaints of, treatment for, or a diagnosis of diabetes mellitus. The first indication of diabetes was in 2006—more than 37 years after separation from service and outside of the applicable presumptive period. The Veteran has not articulated a theory of entitlement outside of a general claim of exposure to herbicides, which the Board has deemed not credible. The Board has considered the statements from the Veteran attributing his diabetes mellitus to service. However, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a competent opinion as to medical causation. The question of causation involves a complex medical question, and they do not have the medical expertise to provide such an opinion. Therefore, he is not competent to provide opinions as to the etiology of his diabetes mellitus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for diabetes mellitus. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel