Citation Nr: 1817112 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-23 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from June 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for diabetes mellitus, Type II, as due to herbicide exposure. In January 2017, the Board remanded the issue on appeal for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now again before the Board. The Board notes that following the issuance of the August 2017 supplemental statement of the case, the Veteran submitted additional evidence in support of his claim in September 2017; however, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review for any evidence submitted by the Veteran. Therefore, the Board may properly consider such evidence. FINDINGS OF FACT 1. The preponderance of the probative evidence shows that the Veteran did not have verified service in Vietnam during the Vietnam era, and was not exposed to an herbicide, including Agent Orange, during his service. 2. The preponderance of the probative evidence does not demonstrate that the Veteran's currently diagnosed diabetes mellitus, type II manifested during, or as a result of, active military service, or manifested to a compensable degree within one year of service discharge. CONCLUSION OF LAW The Veteran's diabetes mellitus, Type II, was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 I. Procedural Duties The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, the Board finds that the duties to notify and assist have been met. II. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, 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). Certain listed disabilities, such as diabetes mellitus, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). The Board notes that the evidence does not show, and the Veteran does not contend, that his diabetes had its onset during service, within one year of his service discharge, or is related to any aspect of his military service other than his alleged herbicide exposure. The Veteran also does not contend that he had continuity of symptoms of diabetes since service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, the Veteran contends that his diabetes is related to alleged herbicide exposure, to include Agent Orange, while serving in the Republic of Vietnam or the Korean demilitarized zone (DMZ). Initially, the Board notes that the record reflects that the Veteran currently has diabetes mellitus, which was initially diagnosed in 2010, over 40 years after his separation from service. A review of the Veteran's personnel records shows that he served in Korea from November 1966 to December 1967. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus, Type II, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Department of Defense (DOD) has identified specific units it has cited that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). VA's Adjudication Procedure Manual, M21-1MR, contains a list of a number of Battalions of Infantry, Cavalry, Armor, and Artillery Divisions identified as specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. If a veteran alleges service along the DMZ in Korea, and was assigned to one of the cited units during this period, then that veteran's exposure to herbicides on a factual basis is conceded. Id. Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. As noted above, the Veteran had service in the Republic of Korea; however, in July 2017, the Board received a response from the U.S. Army and Joint Service Records Research Center (JSRRC) indicating that the Veteran's service in the Korean DMZ was outside the recognized time period for presumptive service connection, and that the Veteran's claimed herbicide exposure had not been corroborated. See July 2017 Administrative Decision. As such, the above presumptive provisions do not apply to the Veteran. The Board acknowledges the Veteran's belief that he was exposed to herbicides despite the fact that his period of active service does not fall within the presumptive period. However, the Board notes that in Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Here, the record is negative for any supporting evidence that he was exposed to gases, herbicides, or chemicals other than his own assertions. Turning to the Veteran's claimed service in Vietnam, VA has been unable to substantiate the Veteran's claim that he was in Vietnam. Notably, in his May 2007 claim for another disability which is not at issue in this appeal, the Veteran initially denied having served in the Republic of Vietnam. Furthermore, while the Veteran's personnel records show service in Korea, they do not show service in Vietnam. In addition, the Board notes that in March 2011, VA received a response to a Request for Information regarding the Veteran's claimed service in Vietnam, which noted that there was no evidence in the Veteran's file to substantiate any service in Vietnam. The Board notes that contrary to information presented in his May 2007 claim, in his June 2014 substantive appeal, the Veteran asserted that he served in Vietnam. Thus, the foregoing inconsistency in the record weighs against the Veteran's credibility as to the assertion of service in Vietnam. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board recognizes that in support of his recent contention that he served in Vietnam, the Veteran submitted an undated newspaper article, wherein the Veteran announced his engagement to his spouse and also indicated that he had served in Vietnam. As the newspaper article is based on statements reported by the Veteran and not on objective corroborating records, the Board finds the newspaper article to be of limited probative value. Given the lack of information to corroborate the Veteran's current assertion that he went to Vietnam, as well as the Veteran's inconsistent statements with regard to his claimed service in Vietnam, the Board finds that the Veteran did not have service in Vietnam. He is, therefore, not entitled to the presumption of herbicide exposure for service in Vietnam. In addition, upon a thorough review of the entire record, there is no medical statement or other competent evidence linking the Veteran's diabetes mellitus to his military service, to include his alleged herbicide exposure. While the Veteran might believe his claimed disability is related to service, as a lay person, his opinion is of insufficient value to establish the required nexus. He has not been shown to possess the requisite expertise or knowledge to address such a complicated medical matter. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In summary, the evidence does not demonstrate in-service exposure to Agent Orange or other herbicide agents contemplated in 38 C.F.R. §§ 3.307 and 3.309. No medical professional has ever attributed the Veteran's diabetes mellitus to his service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for diabetes mellitus, Type II. The benefit-of the-doubt doctrine is therefore not applicable, and the Veteran's claim of entitlement to service connection for diabetes mellitus, Type II, must be denied. See 38. U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure, is denied. ____________________________________________ A.J. Spector Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs