Citation Nr: 18160906 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-53 661A DATE: December 28, 2018 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents in service. 2. Prostate cancer was not incurred in or otherwise related to the Veteran’s active service, to include as due to herbicide exposure. 3. Diabetes mellitus type II was not manifest in service or within one year of separation from service and is not otherwise related to the Veteran’s active service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. 1110, 1116, 1131, 5107(b) (2012); 38 C.F.R. 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure, have not been met. 38 U.S.C. 1110, 1112, 1116, 1131, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the case resides with the Winston-Salem, North Carolina RO. Initially, the Board notes that the Veteran’s notice of disagreement (NOD) with the RO’s May 2015 rating decision included issues related to prostate cancer, diabetes mellitus type II, and posttraumatic stress disorder. Following the issuance of the statement of the case (SOC), the Veteran submitted an additional NOD, noting disagreement with the RO’s decision regarding prostate cancer and diabetes mellitus type II only. The RO notified the Veteran that his latter NOD was accepted in lieu of VA Form 9, and as such, only the issues related to the Veteran’s claims for service connection for prostate cancer and diabetes mellitus type II have been certified to the Board for review. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified and available evidence has been obtained. The Veteran was additionally provided VA examinations in March 2015. Although the VA examinations did not provide opinions, the Board finds that a remand for nexus opinions for prostate cancer and diabetes mellitus type II are not necessary in this case. As set forth below, the Board finds that there is no in-service event, injury or disease; the Veteran’s sole theory of service connection is exposure to herbicides agents, which the Board ultimately finds did not occur. The Board is mindful of Barr, but finds that in the absence of any established event, injury or disease in service, an examiner’s opinion linking the claimed disorders to service would have no evidentiary basis. Consequently, a remand to obtain another examination would do nothing for the appeal other than occasion a delay. Service Connection Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain diseases designated as chronic, medical nexus may be presumed under certain circumstances. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is 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; 38 C.F.R. § 3.307(a)(6)(iii). Additionally, a veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period 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 C.F.R. § 3.307(a)(6)(iv). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prostate cancer and diabetes mellitus type II The Veteran contends that his diabetes mellitus type II disability and prostate cancer were caused by his exposure to herbicide agents, to include Agent Orange, while he was in Vietnam and Korea during active service. Although the Veteran claims that he spent time in Vietnam prior to his assignment in Korea, the records do not support a finding that the Veteran was in Vietnam any time during service. Rather, the Veteran’s military personnel records reflect that he was stationed in Korea as part of Company C 127th Signal Battalion between June 1968 and February 1969. However, although the Veteran’s tour of duty in Korea fell within the time frame of April 1968 to August 1971 (when use of herbicides on the Korean DMZ is acknowledged), his unit is not on the list of units that are recognized as having exposure to Agent Orange while in the DMZ area. As such, the Veteran does not meet the criteria for the presumption of herbicide exposure. Even though presumptive service connection is not applicable, a nexus between the disabilities and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The record reflects that the Veteran was diagnosed with prostate cancer and diabetes mellitus type II. These diagnoses are found in many of his VA treatment records, as well as March 2015 disability benefits questionnaire (DBQ) reports. Thus, the first element of service connection is met. Regarding the second element of service connection, the Veteran does not contend, and the record does not reflect, any complaints, treatment, or diagnosis related to either prostate cancer or diabetes mellitus type II during active service. Moreover, the Board notes that the Veteran has not provided any evidence, lay or otherwise, demonstrating that he was exposed to herbicide agents during his service in Korea. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As diabetes mellitus type II is considered a chronic disease under 38 C.F.R. § 3.309(a), service connection may be granted on a presumptive basis if this condition manifested to a compensable degree (severe enough to be evaluated at least 10 percent disabling) within one year after military discharge. 38 C.F.R. §§ 3.307, 3.309(a). However, the evidence does not show that the Veteran was diagnosed with diabetes mellitus type II within a year of service. The earliest evidence of diabetes mellitus type II is decades after service. Therefore, the second element of service connection, in service incurrence, injury, or disease, is not met for either prostate cancer or diabetes mellitus type II, and no further analysis is necessary. (Continued on the next page)   The Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer and diabetes mellitus type II. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel