Citation Nr: 18159279 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-60 630 DATE: December 19, 2018 ORDER Entitlement to service connection to type II diabetes mellitus, to include as due to herbicide exposure is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam during the Vietnam Era. 2. The Veteran’s diabetes mellitus did not manifest during service or within one year of separation and was not shown to be attributable to incident or event of his period of service, to include as result of exposure to herbicide agents therein. 3. The Veteran’s erectile dysfunction is not caused or aggravated by a service-connected disease or injury; erectile dysfunction is not attributable to incident or event of his period of service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria to establish service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist As discussed below, there is no competent evidence suggesting that the Veteran’s current diabetes mellitus may be associated with service. He has not provided any information concerning the existence of evidence that could support his claim. He has claimed exposure to herbicide agents in service, but such exposure is not confirmed by his records, and he is not shown to have served in the Republic of Vietnam. Regarding his erectile dysfunction claim, there also is no competent evidence suggesting that the Veteran’s current erectile dysfunction may be associated with service and he has solely claimed this disability is secondary to his diabetes mellitus. Accordingly, a VA medical examination as to direct etiological opinions are not warranted at this time. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam); Walker v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination.) Service Connection In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C. § 1110. Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Presumptive service connection on the basis of herbicide exposure is provided for specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Type II (adult-onset) diabetes mellitus is one of the presumptive disease. 38 C.F.R. § 3.309(e). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection to type II diabetes mellitus, to include as due to herbicide exposure. The Veteran contends that his type II diabetes mellitus was caused by herbicide exposure in active service and that his erectile dysfunction is secondary to his diabetes mellitus. The Board has considered whether the Veteran is entitled to service connection for his diabetes mellitus due to herbicide exposure. The Veteran reports that during his period of active service in Okinawa, Japan, he was placed on temporary additional duty assignment in which he served in Vietnam from September 15, 1969 to November 1, 1969. The Veteran submitted, in support of the claim, a letter of appreciation regarding the temporary additional duty assignment from Headquarters Force Logistic Command APO San Francisco 96602 which states the Veteran was assigned to the contact team for LVTP5A1 fire suppression modification. See October 2015 Military Personnel Record. However, the aforementioned letter regarding the temporary additional duty assignment did not state any in-country service in the Republic of Vietnam. The Board further notes that a review of the Veteran’s personnel records also fails to show any in-country service in the Republic of Vietnam. Regarding active service abroad, military personnel records only show the Veteran served in Okinawa from May 18, 1969 to May 11, 1970. Additionally, the Veteran’s DD Form 214 specifically notes that the Veteran did not have any inclusive dates of service in Vietnam. The Board has reviewed all of the evidence of record, and finds that service in the Republic of Vietnam during the Vietnam era is not shown in his service personnel records, and that the Veteran’s statements in this regard are contradicted by his service personnel records. The Board finds that the probative value of the Veteran’s lay evidence is outweighed by review of the Veteran’s service personnel records which serve as the most probative evidence in the current appeal as such are based on records kept contemporaneous to the claimed events. In light of the foregoing, the Board finds that the service records are more probative and persuasive than the lay assertions as to the claimed exposure to herbicide agents in Vietnam. The Board finds that the most probative evidence is against a finding that the Veteran was exposed to herbicides during active duty service. Accordingly, the presumptive provisions concerning diabetes and herbicide exposure are not available, and service connection on that basis is denied. 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309(e). The Board also considered whether the Veteran is entitled to presumptive service connection for diabetes under 38 C.F.R. § 3.303(b). The Board finds that the evidence does not show a diagnosis of or manifestations of diabetes in service or within one year following service nor was there a continuity of symptomatology following service. The Veteran’s service treatment records do not show complaints of relevant symptoms or treatment for diabetes. The September 1971 separation report of medical examination was normal. In a September 1971 report of medical history, the Veteran indicated that he did not experience diabetes symptoms such as recent gain or loss of weight, frequent urination, or sugar in urine. In an October 2015 diabetes mellitus disability benefits questionnaire examination, the examiner noted the Veteran’s diabetes was diagnosed in January 2015. The totality of the evidence does not show that either diabetes started in service or within one year after service, nor a continuity of symptomatology following service. Moreover, there is no competent evidence of record even suggesting that his current disability is related to service, nor does the Veteran contend his condition is related to service for reasons other than Agent Orange exposure. He has not alleged any symptoms or manifestations of diabetes mellitus occurring on a chronic or continuous basis since his separation from service. Therefore, the Board finds that entitlement to service connection for diabetes mellitus on a direct or presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303(a), (b), 3.309(a). Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for diabetes mellitus on any basis. Thus, the claim for service connection for diabetes mellitus is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus. With regard to the claim for service connection for erectile dysfunction, the Veteran has not contended, nor is there any evidence of record, that erectile dysfunction is directly related to service. The service treatment records are negative for any indication, complaints, treatment, or diagnosis for erectile dysfunction in service. The September 1971 separation examination shows a normal clinical evaluation. There is no competent medical evidence of record showing that any erectile dysfunction is related to service. Furthermore, the Veteran is specifically claiming erectile dysfunction as secondary to diabetes mellitus, such as in the October 2015 claim for VA benefits. However, as the Board’s decision above has denied service connection for diabetes mellitus, any claim of entitlement to service connection for a disability secondary to diabetes mellitus must be denied, as service connection has been denied for the claimed primary disability. See Allen v. Brown, 7 Vet. App. at 448 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for diabetes mellitus and erectile dysfunction and those claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel