Citation Nr: 18113552 Decision Date: 06/22/18 Archive Date: 06/22/18 DOCKET NO. 15-05 489 DATE: June 22, 2018 ORDER Service connection for diabetes mellitus, including based on herbicide agents (e.g., Agent Orange) exposure, is denied. FINDING OF FACT 1. Diabetes mellitus was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 2. The Veteran did not serve in the Republic of Vietnam, did not perform duties on or near the perimeters of military bases in Thailand, and is not shown by evidence of record to have been exposed to herbicide agents (e.g., Agent Orange) in service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, including based on herbicide agents (e.g., Agent Orange) exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1972 to December 1975. The Department of Veterans Affairs is grateful for his service. Service connection for diabetes mellitus, including based on herbicide agents (e.g., Agent Orange) exposure. The Veteran contends, in effect, that service connection for diabetes mellitus is warranted based on his exposure to herbicide agents (hereinafter also referred to as “Agent Orange”) while in service, including while on temporary duty assignment (TDY) in Guam and when visiting Thailand while on leave. At his hearing before the undersigned in March 2018, the Veteran testified to having worked in a warehouse in supply when on TDY in Guam, and that the warehouse was adjacent to the flight line in Guam. He added that the flight line was used by B-52s that were on missions to Vietnam, and that 55-gallon drums were stored in the warehouse, some of which were marked as containing hazardous chemicals. He also testified that he flew in and out of the military base at U-Tapao, Thailand, when he went for a week of leave in Thailand. He then conceded that he was at U-Tapao for no more than a few hours when flying in or out for that week of leave. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Diabetes mellitus is listed as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, 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, 1112, 1113, 1137; 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. Medical treatment records from recent years establish that the Veteran is diagnosed with diabetes mellitus. The weight of the evidence is against the presence of diabetes mellitus in service or within the first post-service year and is against such disease being present continuously since service. Service treatment records provide no findings of diabetes mellitus and none were found upon service separation examination. Medical records do not reflect a diagnosis of diabetes mellitus for many years following service, and provide no finding of onset of that disease process in service or in years proximate to service. Hence, service connection is not supported for diabetes mellitus as directly related to service (with the preponderance of the evidence against) or based on presumptions for chronic disease (with evidence not supporting chronic symptoms from service or disability within the first post-service year). 38 C.F.R. §§ 3.303, 3.307, 3.309. The focus of the Veteran’s claim, however, is service connection based on asserted herbicide agent exposure while on TDY in Guam. The Veteran has not contended, and the evidence does not otherwise reflect that the Veteran set foot in Vietnam during service. In a March 2015 VA Form 9, the Veteran informed of his having a 181-day service tour of duty in Guam in 1973, and submitted pictures taken while in Guam. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, including type II diabetes mellitus, shall be service-connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. VA’s Compensation & Pension Service has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5. VA identifies several Royal Thai Air Force Bases (RTAFBs) in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and pursuant to the VA Adjudication Manual, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFBs as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. As the Veteran’s authorized representative acknowledged in a September 2016 VA Form 646, the record contains no evidence of the Veteran having served in Vietnam or Thailand during the Vietnam Era, and there is also no evidence that the Veteran’s duties were on or near the perimeters of military bases in Thailand. However, as the representative notes, the Veteran contends that he was exposed to Agent Orange when he was on TDY in Guam performing work on a flight line where aircraft were sent to and returned from missions in Vietnam, or upon going on leave to Thailand. The Veteran’s service personnel records reflect that the Veteran was on TDY in Guam during a portion of the interval from August 1972 to July 1973, and that he was then a member of the 43rd Supply Squadron, with duties as a controller, receiving call-in requests for supplies as well as “[r]unning inputs through the remotes and establishing verified back-orders.” They do not provide support for the Veteran having been exposed to Agent Orange at any time in service, including while on TDY in Guam. The Veteran’s assertion of having visited Thailand while on leave does not support his claim because it does not support his having engaged in regular duties on or near the perimeters of U.S. military bases in Thailand. Similarly, his report of having worked in a warehouse where 55-gallon barrels were stored and adjacent to a flight line used by B-52s on missions to Vietnam does not support his exposure to Agent Orange. At his hearing, he acknowledged that he did not himself move barrels including any marked as containing hazardous chemicals, and he did not assert that any of these barrels ruptured or that he was thereby exposed to their contents. In the absence of evidence supporting the Veteran’s presence in recognized places and circumstances of service for which a presumption of Agent Orange exposure is applicable (such as in Vietnam or performing duties on or near the perimeters of above-noted bases in Thailand), and with the weight of the evidence preponderating against the Veteran otherwise having been exposed to Agent Orange in service, the Board concludes that the presumptions based on Agent Orange exposure are not applicable, and hence service connection for diabetes mellitus is not warranted on this basis. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e); VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. 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) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Lana K. Jeng Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter, Counsel