Citation Nr: 18151851 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 09-44 449 DATE: November 20, 2018 ORDER Entitlement to service connection for diabetes mellitus, to include in-service exposure to herbicides and/or chemicals is denied. FINDING OF FACT 1. The Veteran did not serve in an area in which exposure to herbicide agents may be presumed, and he is not shown to have been exposed to herbicides in service. 2. Diabetes mellitus did not manifest during the Veteran’s active service and is not otherwise related to an event or injury in service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, to include as exposure to herbicides and/or chemicals, have not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to July 1966. This matter was remanded by the Board in April 2015 for a hearing. A hearing was scheduled in August 2018 but the Veteran failed to attend. Therefore, the Board will consider the Veteran’s request for hearing withdrawn. Entitlement to service connection for diabetes mellitus, to include in-service exposure to herbicides and/or chemicals. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(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’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). The Veteran currently has diabetes mellitus, type II, which is a chronic disease listed under 38 C.F.R. § 3.309 (a); thus, 38 C.F.R. § 3.303(b) is applicable. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases (such as diabetes) become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s medical records indicate he was diagnosed with diabetes mellitus, type II in 1995. The first element of service connection is met as the Veteran’s records indicate he carries a current diagnosis for diabetes mellitus, type II. The Veteran contends that his currently diagnosed diabetes mellitus is the result of his exposure to Agent Orange in while serving as a security guard during his active service in Hawaii. The Veteran contends that while patrolling the docks he walked through 55-gallon drums with orange stripes; some leaking. He states he has since been informed that this was Agent Orange. The Veteran’s military service records do not confirm service in the Republic of Vietnam, nor does the Veteran allege service in Vietnam. In May 2012, VA requested a review of the Department of Defense’s (DOD) inventory of herbicide operations to determine whether herbicides were used in Hawaii as alleged by the Veteran. A response was received in an email dated May 31, 2012 stating: “There is no evidence that any tactical herbicides were stored on Hawaii for use in Vietnam. However, DOD has reported that, between December 1, 1966 through June 30, 1968 and December 1, 1966 through January 1967, several small scale tactical herbicide tests were conducted in remote forest game refuges on Kauai Island and Mauna Loa. These tests did not involve U.S. military personnel based on the Hawaiian Islands.” See email dated May 31, 2012 from A.H. No additional information was made available to support the Veteran’s claims. In November 2012, VA issued a formal finding that “evidence to verify if herbicides were stored on Hawaii for use in Vietnam is not available.” See November 13, 2012 Memorandum of a Formal Finding of Unavailability of Exposure to Herbicides. The Veteran’s representative argues: “The Veteran served at various stations and locations at the Pearl Harbor Navy complex. Most of them has dioxin contamination problems from incinerations, landfills and Navy power plants. Both the Navy and the EPA admit to a contamination problem. It does not have to be Agent Orange to be a dioxin and it need not be tactical.” See March 23, 2015 Written Brief Presentation. The Veteran’s DD-214 shows he separated from service in July 1966, before the earliest presence of Agent Orange testing on Hawaii began. Although, the Veteran and his representative allege the Veteran could have been exposed to a non-tactical dioxin, he has failed to show his exposure to any chemical containing dioxin. The Veteran, nor his representative, as laypersons, do not possess the medical or scientific training or expertise to identify herbicides or render a competent opinion as to whether his active duty service at the Pearl Harbor Navy complex resulted in herbicide exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2011); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The response from VA in May 2012 and November 2012, indicate the Veteran was not exposed to Agent Orange or tactical herbicide while performing his duties as a security guard on Hawaii. Accordingly, the evidence of record does not establish that presumptive service connection for diabetes mellitus is warranted under 38 C.F.R. § 3.307. Next, regarding the theory of direct service connection, competent medical evidence is required to establish in-service incurrence. The Veteran’s service treatment records reveal no complaints, treatment or diagnoses consistent with diabetes mellitus, or symptoms indicative thereof. Medical records associated with the claims file show that the Veteran is currently diagnosed with type II diabetes mellitus. See September 2016 medical record from Hines VAMC. However, the Veteran was first diagnosed with diabetes in 1995, over 29 years after his discharge. See April 2008 medical record from Hines VAMC. This passage of time is a factor for consideration when making a finding of direct service connection. See Maxson v. West, 12 Vet. App. 453 (1999). Post-service treatment records do not include any medical opinion regarding a connection between the current diabetes mellitus type II and service. Again, the Veteran lacks the medical training and credentials to render a diagnosis of type II diabetes mellitus and an opinion as to its etiology. As such, there exists no competent evidence to support the claim, and there is no basis for remanding the claim for an etiology opinion because such opinion has no reasonable likelihood of producing results favorable to the Veteran. 38 C.F.R. § 3.159(c)(4). The Veteran has failed to meet the second element of service connection. For these reasons, the Board finds that the weight of the lay and medical evidence is against finding that the Veteran’s diabetes mellitus is related to his active service or that he developed diabetes mellitus within a year of service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The service connection claim for diabetes mellitus must therefore be denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel