Citation Nr: 18151625 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 13-10 590 DATE: November 20, 2018 ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals, is denied. FINDING OF FACT 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 related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from February 1951 to February 1955. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the Veteran’s claims. In February 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to (1) attempt to obtain evidence concerning the historical use of pesticides and dichlorodiphenyltrichloroethane (DDT) at Kadena Air Force Base, in Okinawa, Japan, (2) to schedule a VA examination if, and only if, the AOJ confirms the use of pesticides or DDT at Kadena Air Force Base during the Veteran’s period of activity duty, and (3) to readjudicate the Veteran’s claim based on the entirety of the evidence. Service connection for diabetes mellitus, to include as due to exposure to herbicides or other chemicals. The Veteran seeks entitlement to service connection for diabetes mellitus contending that his disability resulted from exposure to herbicides or other chemicals during active service. The Veteran did not serve during the Vietnam era or in Vietnam, and, therefore, is not presumed exposed to herbicides. 38 C.F.R. § 3.307. The Veteran states that, during his service at Kadena Air Force Base, DDT was sprayed around the perimeter of open barracks as well as on and through the nets covering the soldiers’ beds. He also contends that other chemicals were used in and around the tents to control mosquitos. See Report of General Information dated April 11, 2012. As an initial matter, the Board notes that a full copy of the Veteran’s service treatment records are unavailable as they are fire-related (i.e., destroyed in a fire at the National Personnel Center in St. Louis, Missouri, in 1973). See October 2012 VA Memorandum. The Board is aware that when service records are unavailable through no fault of the veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Alternatively, where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including diabetes, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d at 1333. In the present case, the Board finds that the Veteran has been diagnosed with diabetes mellitus as reflected in his private and VA treatment records. Thus, the first element of service connection has been met. However, the Board finds that the Veteran is unable to establish the second requirement for service connection, which is evidence of an in-service incurrence, injury, or disease. First, there is no evidence that the Veteran’s diabetes mellitus existed during or manifested within one year of service. See 38 C.F.R. §§ 3.303, 3.307(a)(3). While the Board acknowledges that the Veteran’s service treatment records are unavailable for review because the records were lost in a fire, his separation exam is in the record, and is silent on any diagnosis or treatment of diabetes mellitus. According to the Veteran’s June 2017 statement, he was not diagnosed with diabetes mellitus until 1974, long after his separation from service in 1955. The first medical reference showing a diagnosis is a primary care progress note dated in November 2009. Thus, service connection on a presumptive basis is not established because there is no evidence that the Veteran’s diabetes manifested to a compensable degree within one year following discharge from active service nor evidence of continuity of symptomatology. Second, although the Veteran’s diagnosis did not manifest until after service, he contends that it is related to his in-service exposure to herbicides or other chemicals while at the Kadena Airforce Base. According to the Veteran’s April 2010 statement, he served at the Kadena Airforce Base from November 1951 to October 1953. His military personnel records confirm that he was stationed in Japan and that he received the Korean Service Medal. The competent evidence in the record does not reflect actual exposure to herbicide agents or other chemicals including DDT. Specifically, the National Personnel Records Center (NPRC) stated there were “no records of exposure to herbicides” after a request to obtain the Veteran’s service records or any documents showing exposure to herbicides. In response to a request for the Veteran’s service records or historical use of pesticides, including DDT, at Kadena Air Force Base, the NPRC stated that the information is not on file. Likewise, Kadena Air Force Base also stated that it did not have medical records for the provided in-service time frames regarding chemical exposure. The Board notes that the RO submitted a request to the Department of Defense in June 2017 for all records regarding the use of chemicals including DDT at Kadena Air Force Base during the Veteran’s active military service, which was returned in the mail to the RO. However, the Board finds that NPRC’s two responses indicating there are no records of exposure as well as the response from Kadena Air Force Base stating that it does not have the Veteran’s medical records are sufficient and thorough record evidence from the original sources. In rendering a decision on appeal, the Board must 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). Here, the Board has considered the arguments made by the Veteran concerning chemical exposure, but the evidence of record does not establish or confirm that the Veteran experienced chemical exposure at Kadena Air Force Base. While the Veteran may report that he witnessed liquids being sprayed, he is not competent to report that the liquid was a particular chemical agent without more advanced and direct knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nothing in the record otherwise demonstrates the Veteran is qualified to identify herbicide agents. Moreover, no other basis for possible herbicide agent or chemical exposure is demonstrated by the record. The Board further notes that in Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010), the Court held that a layperson’s assertions indicating exposure to chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Thus, because there is no credible evidence to establish that the Veteran was exposed to herbicides or other chemicals while in service, he cannot establish an in-service injury, event, or disease. The Board further finds that the weight of the evidence demonstrates that the Veteran’s currently diagnosed diabetes mellitus is not related to service. There is no competent evidence of a nexus between diabetes mellitus and service; indeed, there is not an in-service injury, disease, or event, including the claimed herbicide or chemical exposure. The Veteran received both private and VA treatment for his diabetes mellitus, however, no medical provider found that his disability is related to service. The criteria for direct service connection for the Veteran’s diabetes mellitus have not been met because there is no evidence of in-service injury or disease of the endocrine system, no presumed or actual exposure to herbicides or other chemicals during service, no chronic symptoms of diabetes mellitus in service, and no continuous symptoms of diabetes mellitus since service. 38 C.F.R. § 3.303. Because the Veteran’s diabetes mellitus did not manifest to a compensable degree within one year of service separation, the presumptive service connection provisions for diabetes mellitus as a “chronic” disease are not met. Based on the findings above, the Board finds that entitlement to service connection for diabetes mellitus is denied. As the preponderance of the evidence is against the claim, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Law Clerk