Citation Nr: 19166315 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-48 459 DATE: August 27, 2019 ORDER Entitlement to service connection for diabetes mellitus type II is denied. FINDING OF FACT 1. Diabetes was not manifested in service or within the first post-service year, and the preponderance of the evidence is against a finding that the Veteran’s current diabetes is related to his service. 2. The weight of the evidence does not show that the Veteran was exposed to any herbicide agents while in the U.S. Air Force. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1962 to January 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified via teleconference at a hearing before the undersigned in April 2019. A transcript of his testimony has been associated with the claims file. Automatic waiver of RO consideration of the private medical records and opinions submitted by the Veteran in April 2019 is presumed given the date of filing of the substantive appeal. See 38 U.S.C. § 7105(e). The Board observes that other evidence was also received following the most recent August 2017 Statement of the Case, including VA medical records. These other records, however, are not pertinent to the diabetes claim herein. Thus, a remand for a supplemental Statement of the Case is not necessary. See 38 C.F.R. § 20.1304(c). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to service connection for diabetes mellitus type II Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: (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). Service connection may also be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes mellitus, that manifest to a degree of 10 percent within one year of separation from service or during service and then again at a later date. The Veteran seeks service connection for type II diabetes. With respect to the first element of the test for service connection, the Veteran’s current diabetes diagnosis is not in dispute. See September 2013 Private Treatment Records. As such, the first element of the service connection test has been satisfied. However, with respect to the second element of the test for service connection, while the Veteran contends that his diabetes is due to his exposure to herbicide agents while serving in Korea, there is insufficient evidence to show that he was exposed to herbicide agents. Type II diabetes is among the diseases for which presumptive service connection can be awarded if the evidence indicates exposure to an applicable herbicide agent. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii). Additionally, pursuant to VA regulations, if a veteran served in a unit that, as determined by the Department of Defense, operated in or near the demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied between April 1, 1968, and August 31, 1971, the presumption will apply and exposure to an herbicide agent will be conceded. 38 C.F.R. § 3.307(a)(6)(iv). A review of the Veteran’s service personnel records show that he was stationed at Osan Air Base in Korea from August 1968 to September 1969. The evidence does not show that he served in a unit that the Department of Defense determined operated in or near the DMZ. Indeed, a May 2016 VA administrative decision indicates that VA was unable to verify the Veteran’s possible herbicide agent exposure after obtaining and reviewing the Veteran’s service personnel records. In the May 2016 administrative decision, VA indicated that the Veteran’s unit was not a unit known to operate in the DMZ and that the Veteran did not respond to inquiries from VA to corroborate his exposure to Agent Orange. As such, the Veteran is not entitled to presumptive service connection based on herbicide agent exposure, and he must establish evidence showing direct exposure to herbicide agents. In his April 2016 Notice of Disagreement, the Veteran contended that he was exposed to herbicide agents in Korea in connection with his duties as a traffic manager involved in packing, shipping, and handling military cargo. More specifically, he asserted that handled “dangerous cargo shipments” that were sent to Vietnam and other locations in South Korea, and that he feels that he was exposed to herbicide agents, namely Agent Orange, while handling this dangerous cargo. Additionally, the Veteran’s agent argued at his April 2019 hearing that the Veteran was exposed to chemicals, including Agent Orange and JP4, that were sprayed near the Veteran’s military base in Korea. See Hearing Transcript at 3. The Veteran also testified that during service he worked for 13 years in transportation and traffic management and shipping, packing, and crating, which required him to ship and occasionally clean up chemical spills. Id. at 8. The Veteran clarified that he did not know or remember what kind of chemical shipments he was responsible for processing, but that he received special training on handling and shipping hazardous materials. Id. at 8-10. The Veteran’s agent also argued that he was exposed to chemicals, such as chromium in the water supply, while stationed at Tinker Air Force Base in 1982 and that this chemical exposure resulted in his diabetes. Id. at 3. The Veteran’s belief that he was exposed to herbicide agents or other chemicals, regardless of how sincerely held, does not equate to sufficient proof of exposure. His Form DD-214 and service personnel records confirm that he worked in transportation and traffic management while stationed at Reese Air Force Base, Osan Air Base, Offutt Air Force Base, Rhein-Main Air Base, Torrejon Air Base, and Scott Air Force Base, and that the Veteran served at Tinker Air Force Base before his discharge in 1983. The Veteran’s service personnel records also indicate that confirm that he received specialized training relating to hazardous cargo shipments. Nonetheless, they do not describe any trips to the DMZ while serving in Korea or document any other potential herbicide or chemical agent exposure during his service. Nor do these records indicate what specific materials were being shipped or that he had any expertise in the identification of chemical agents. The Board acknowledges that the Veteran has submitted two April 2019 private medical opinions from Dr. T.M., in which Dr. T.M. opines that the Veteran’s diabetes was “presumptive and attributable” to his active duty service due to Agent Orange exposure while stationed in Korea. Dr. T.M., however, assumes that the Veteran was exposed to herbicide agents and fails to discuss the concentration or nature of the claimed herbicide agent exposure. Essentially, Dr. T.M. offered a conclusory opinion on whether the Veteran’s diabetes was due to herbicide agent exposure. As such, the Board finds that the April 2019 private medical opinion is entitled to little probative weight. Moreover, the post-service treatment records show that the Veteran was not diagnosed with his present diabetes until September 2013, thirty years after separating from service. In consideration of the foregoing, the probative evidence of record does not support a finding that the Veteran was actually exposed to any herbicide agents or other chemical agents during service. With respect to entitlement to presumptive service connection based on chronic disease, there is no evidence in the Veteran’s service treatment records that the Veteran’s current diabetes or symptoms of diabetes manifested in service and persisted, or that diabetes became manifest to a compensable degree within one year of his separation from service. The Board has carefully reviewed the Veteran’s service treatment records. However, these records are devoid of any complaints, symptoms, or treatment of diabetes during the Veteran’s service. During the April 2019 hearing, the Veteran and his agent contended that the Veteran was told that he was “pre-diabetic” with impaired fasting glucose pursuant to a 1982 physical examination while he was serving at Tinker Air Force Base. See Hearing Transcript at 3, 6. However, in reviewing the Veteran’s service treatment records, the Board finds no evidence documenting elevated glucose levels, impaired fasting glucose, or pre-diabetes in 1982 or at any other point during service. On the contrary, the Veteran’s January 1979 and April 1982 physical examinations reflect no endocrine abnormalities or “impaired glucose fasting,” and both examination reports indicate that his urinalysis results are negative for sugar. Furthermore, the Veteran’s post-service treatment records are silent for complaints, symptoms, or treatment of diabetes until 2012, at which point the Veteran’s glucose levels appear elevated after testing. This lengthy period without complaint, treatment, or recognition of the disability is a factor the Board may consider in adjudicating the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, the Board finds that the criteria for entitlement to service connection for diabetes on either a direct or a presumptive basis have not been satisfied. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for type II diabetes. Accordingly, the claim is denied. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.