Citation Nr: 18153472 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-32 019 DATE: November 27, 2018 ORDER Service connection for diabetes mellitus, type II (“diabetes”) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran did not have verified service in Vietnam during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The preponderance of the evidence shows that the Veteran did not have verified service stationed at a Royal Thai Air Force Base as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 3. The preponderance of the evidence does not demonstrate that the Veteran’s currently diagnosed diabetes manifested during, or as a result of, active military service, or manifested to a compensable degree within a year after separation. CONCLUSION OF LAW The criteria for service connection for diabetes have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 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 CONCLUSION Entitlement to service connection for tinnitus was originally on appeal as well. However, in a July 2015 rating decision, the RO granted service connection, representing a full grant of benefits. Accordingly, this issue is no longer before the Board. As such, the only remaining issue on appeal is the service connection claim for diabetes. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. 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 occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection for certain disabilities may be presumed for those exposed to particular herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including diabetes, type II, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307(a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). Effective June 2015, VA published an interim rule establishing a presumption of exposure to certain herbicide agents for Veterans who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (Agent Orange) during the Vietnam era and later develop an Agent Orange presumptive condition. 80 Fed. Reg. 35246-01 (June 19, 2015) (currently codified at 38 C.F.R. § 3.307(a)(6)(v)). Notably, the designation of “UC-123” indicates that the particular aircraft was equipped with spray apparatus. See Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123 Aircraft 10 (2015). VA has also published a list of military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crewmembers. See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. VA concedes herbicide agent exposure to those who served in the U.S. Air Force at a number of Royal Thai Air Force Bases. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. A veteran who, during active military service, served in a unit that operated in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, in an area where herbicides were known to have been sprayed shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309. Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Veteran contends that his diabetes is a result of his time in active service. Specifically, he contends that this disability is a result of Agent Orange exposure while serving during the Vietnam era on the Royal Thai Air Force Bases of Udorn and or when stationed in Korea, and or when flying over Vietnam. He reports that while in service he was stationed at Udorn Air Force Base (AFB) in Thailand where he worked as a ground equipment repair man. He described spending time around the perimeter, as he would play baseball there regularly and would come into contact with the perimeter when he would enter and exit the base. He contends that Agent Orange was in the soil, water, and the air and that it was heavily sprayed around AFBs in Thailand. The Veteran has not shown that he is competent to identify Agent Orange or other tactical herbicides, nor is he shown to have any expertise in toxicology. The Veteran also contends that while at Udorn AFB he performed aircraft maintenance on C-123s that sprayed Agent Orange in Vietnam. He stated that he was present on the AFB when the modified Ranch Hand aircraft sprayed malathion insecticide to control malaria carrying mosquitoes at Udorn AFB from October 14th to the 17th in 1966. The Veteran also contends that exposure to Agent Orange could have occurred when he was in Korea. He stated that he served in Korea for a year. His representative argued that the Veteran served on an aircraft carrier, between May and June in 1951, while the ship was stationed off Korea during the Korean War and launched aircraft on combat operations. Without providing any details or specifics, he also contends that he flew over Vietnam many times. A February 1965 pre-induction treatment record appears to indicate a negative reading for glucose and or sugar. Service treatment records dated June 1965 and October 1968 (separation examination) indicate negative readings for glucose and or sugar. The earliest record of evidence to indicate a diabetes diagnosis is a statement from the Veteran, where he states that he first got treatment in April 2011. See May 2012 Statement in Support of Claim. The medical evidence of record also illustrates the earliest diagnosis as being in April 2011. See April 2011 VA medical record. Turning to the evidence of record, there are medical treatment records that indicate a diagnosis of diabetes mellitus, type II. See July 2011 and December 2014 VA medical records. Therefore, there is competent medical evidence establishing that the Veteran has a current disability. Resolution of the Veteran’s appeal turns on whether his current disability is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Here, the evidence shows that the Veteran has a current diagnosis of diabetes, an enumerated disease associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). The evidence fails to show the presence of any claimed disability during service or within the first post service year. Additionally, the Veteran does not contend that his diabetes had its onset in service or within a year of service, but rather asserts that he was first treated for diabetes in April 2011—over four decades since separation. As there is no showing that diabetes manifested to a degree of 10 percent within a year from separation from service-in November 1969, the presumption does not apply. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, as the Veteran does not contend, and the evidence of record, including service treatment records, does not otherwise show that his diabetes had its onset in service, service connection on a direct basis is not warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, at primary issue in this case is the determination of whether or not the Veteran is entitled to a presumption based on exposure to herbicide agent during service. The Veteran’s DD Form 214 does not reflect Vietnam service, but notes that the Veteran was awarded the Vietnam Service Medal (VSM) with 1 Bronze Star, the National Defense Service Medal (NDSM), and the Republic of Vietnam Campaign Medal (RVCM). His military personnel records show that he was an aerospace ground equipment repairman who was responsible for trouble shooting, analyzing and repairing hydraulic, electric, and pneumatic systems of all aerospace ground equipment assigned. He performed repairs on engines, which included MC-11 air compressors and a M32A60 Gas Turbine Generator Set. His records also show that he was stationed at Udorn RTAFB from at least from June 1966 to September 1967. In a Memorandum for the Record, VA confirmed that the Department of Defense list shows that tactical herbicides were used in Thailand from April 2, 1964 through September 8, 1964. The location was identified as the Pranburi Military Reservation, not near any Royal Thai Air Force Base. VA confirmed that a letter from the Department of the Air Force’s letter shows that there are no records to indicate that there was any herbicide storage in Thailand, aside from the Pranburi Military Reservation. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND. There are no records of tactical herbicide spraying by RANCH HAND in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. There are records that show that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30, 1963, to September 16, 1963, and from October 14, 1966, to October 17, 1966. The 1966 mission involved the spraying of malathion insecticide for the “control of malaria carrying mosquitoes.” The memorandum clearly states that “these facts are not sufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand.” An April 2011 Personnel Information Exchange System (PIES) response indicates that it was not able to determine whether the Veteran served in the Republic of Vietnam and that there were no records of exposure to herbicides. A January 2013 formal finding indicates a lack of information required to corroborate the Veteran’s allegation of exposure to herbicide agent while in service. The finding summarized all the efforts made to corroborate herbicide agent exposure. The Veteran’s allegation of exposure to herbicides could not be verified, therefore, it was determined that there is no evidence to support his contention that he was exposed. After considering the evidence of record, including the evidence showing the Veteran was not in Vietnam or its inland waterways at any point, the Board finds that the presumption is not warranted and the evidence does not otherwise show by competent and credible evidence that the Veteran was exposed to herbicide agent in service. The Veteran’s uncollaborated, vague reporting of flying over Vietnam is not enough to apply the presumption. The most probative evidence does not show, nor does the Veteran contend that he was present on the landmass or the inland waters of Vietnam during the Vietnam era. There is also no evidence that he was exposed to herbicide agents while in Thailand. He was at one of the Royal Thai Air Force Bases, but nothing in his military personnel records indicates, nor does the Veteran contend that he was a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter. Additionally, the VA Memorandum confirmed that herbicide agents were not sprayed during the time frame when the Veteran was stationed at Udorn, nor were they sprayed or stored at that location. Despite the Veteran’s contentions that he served in Korea, the military records of evidence do not corroborate this contention. Even if the Board took the Veteran’s contention as fact, the presumption for service in Korea would still be inapplicable. According to the Veteran, he served in Korea in 1951 on an aircraft carrier for a year or less between May 1951 and June 1951. There is no probative evidence of record to show that he served during the prescribed time— between April 1, 1968, and August 31, 1971. In addition, he does not even allege that he served in a unit that operated in or near the Korean demilitarized zone (DMZ). Additionally, there is nothing in the record to indicate the Veteran was actually exposed when stationed in Korea. As stated above, the memorandum confirmed what the Veteran contends—that that RANCH HAND aircraft engaged in a 1966 mission involving the spraying of malathion insecticide in Thailand from October 14, 1966, to October 17, 1966. However, the memorandum also confirmed that these facts are insufficient to establish herbicide exposure for any veteran based solely on service in Thailand. As such, herbicide exposure cannot be concluded solely based on being in Thailand at a time where insecticides targeted at mosquitoes were sprayed. Although the Board does not doubt that the Veteran worked with some aircraft, as he was an aerospace ground equipment repairman, this alone is insufficient to prove his contention that he handled C-123 aircraft. There is no probative evidence of record to show that the Veteran had any contact, let alone regular and repeated contact with C-123 aircraft. Moreover, per his military personnel records, as an aerospace ground equipment repairman he was charged with repairing all aerospace ground equipment assigned, which included MC-11 air compressors and a M32A60 Gas Turbine Generator Set. The military records do not indicate regular and repeated operation, maintenance, or interaction with C-123s, as would be required under 38 C.F.R. § 3.307(a)(6)(v). The Veteran is not competent to report that he was actually exposed to herbicides during service. As such, there is no probative evidence to support finding of exposure to Agent Orange from such aircrafts. Given the Veteran’s concession that he was not in Vietnam, his vague belief that he may have been exposed to herbicide agent when in Korea, the record that illustrates he did not serve in a DMZ in Korea between April 1, 1968, and August 31, 1971, the official records that confirm that he did serve in the Air Force, but he did not work on C-123 aircraft, nor did he serve near the perimeter of an air base in Thailand, and the official records that confirm that he was not exposed to herbicide agent at any time while in service, the weight of the evidence is against the conclusion the Veteran was exposed to herbicide agents. For these reasons and bases, the Board finds that the weight of the lay and medical evidence is against this claim. As exposure to an herbicide agent is not demonstrated, presumption of service connection based on exposure to an herbicide agent is not indicated. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for diabetes. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel