Citation Nr: 20004475 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-29 908 DATE: January 21, 2020 ORDER Entitlement to service connection for diabetes mellitus to include as secondary to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran’s exposure to Agent Orange during service has not been demonstrated. 2. 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. CONCLUSION OF LAW Diabetes mellitus was not incurred in service, nor may it be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1966 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested, and was scheduled for hearing before a Veterans Law Judge in December 2018. However, the Veteran failed to appear for this hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2018). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include type II diabetes mellitus may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as diabetes mellitus is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin’s lymphoma; Hodgkin’s disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The term “soft-tissue sarcoma” includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing’s sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e), 3.313, 3.318. As noted above, the law provides that for claims based on the chronic effects of exposure to Agent Orange, presumptive service connection may be established for certain diseases, including diabetes mellitus, as specified above. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Regarding presumptive service connection for diseases associated with exposure to herbicide agents, it is warranted if a disease listed under § 3.309(e), with the exception of chloracne or other acneform disease, becomes manifest to a degree of 10 percent at any time after service. As opposed to the requirements for direct service connection, the disease need not manifest within the appellate period. Factual Background and Analysis When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for diabetes mellitus as secondary to herbicide exposure is not warranted. The Veteran contends that his current type II diabetes mellitus is a result of his active duty service. Specifically, he asserted that they used defoliants when installing navigational equipment on the banks of the Ohio River when he was aboard the USCG Lantana from January 1968 to February 1970. However, the Board finds that despite the Veteran’s contentions, he was not actually exposed to herbicides during service and accordingly does not warrant the presumption of service connection based on herbicide exposure. As noted above, the Veteran served on active duty from February 1966 to February 1970 and service personnel records do not show that he was stationed in Vietnam. There is also no objective evidence establishing the Veteran’s contention that he was exposed to Agent Orange. The Veteran has not indicated that he possesses any specialized knowledge in the scientific field such that he could determine without testing that he handled barrels containing herbicides. 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. Rather, those statements must be weighed against other evidence of record, including lack of documentary evidence of the incident. To that end, a March 2015 formal finding by the Joint Services Records Research Center (JSRRC) found that no United States Coast Guard or Navy ships transported herbicides from the United States to the Republic of Vietnam and JSRRC could provide no evidence to support that a Veteran’s claim to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. Additionally, a July 2015 JSRRC Memorandum noted that while a review of the service personnel and service treatment records demonstrate that the Veteran served aboard the USCGC Lantana, there was no confirmation of exposure to herbicides aboard this vessel. Having considered the Veteran’s contentions and statements, and after a review of all the evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran did not have “service in the Republic of Vietnam,” was not presumptively exposed to herbicides during active service, and was not actually exposed to herbicides during service to warrant the presumption of service connection. See 38 C.F.R. § 3.307(a) (6) (iii). As a result, while the Veteran served in the Vietnam era, the Board finds that he was not deployed to Vietnam, did not set foot in Vietnam and was not otherwise exposed to herbicides during his service. Accordingly, while type II diabetes mellitus is a disease that would warrant a regulatory presumption of service connection for as a result of in-service herbicide exposure, this is not applicable to the Veteran’s claim. Accordingly, service connection is not warranted on a presumptive basis. Instead, his claim must be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). At the outset, the Board notes that a diagnosis of diabetes mellitus is not demonstrated until 2014, almost 44 years after his discharge from active duty. Accordingly, service connection on a presumptive basis may not be granted as the disease was not shown in service or within one year of discharge therefrom. See 38 C.F.R. §§ 3.307, 3.309. To any extent that the Veteran is asserting that he experienced continuing symptoms of a diabetes mellitus disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a diabetes mellitus disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a diabetes mellitus disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board finds that the weight of the evidence is against a finding that the Veteran’s current diabetes mellitus disability is etiologically related to the Veteran’s military service. Notably, the Veteran’s service treatment records are negative for treatments, complaints or diagnoses related to a diabetes mellitus disability. Further, there is no competent evidence or opinion otherwise suggesting that there exists a nexus between a current diabetes mellitus disability and the Veteran’s service on a direct basis, and neither the Veteran nor his representative have presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a diabetes mellitus disability is also not warranted on a direct basis. The Board finds that the competent evidence of record, while showing the currently diagnosed disability of diabetes mellitus, does not demonstrate diabetes mellitus manifested to a compensable degree within one year of separation. Additionally, there is no competent evidence that a diabetes mellitus disability is related to the Veteran’s service to include as secondary to herbicide exposure. The Board also notes that the Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed diabetes mellitus disability. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that the diabetes mellitus disability manifested in service or within a year of separation from service and there is also no competent evidence suggesting that this disability is otherwise associated to service to include as secondary to herbicide exposure. Thus, remand for a VA examination is not necessary. The Board notes the Veteran and his representative’s contentions regarding the etiology of his claimed diabetes mellitus disability. To the extent that the Veteran and his representative themselves contend that a medical relationship exists between his claimed diabetes mellitus disability and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a diabetes mellitus disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed diabetes mellitus disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran and his representative’s assertions that there is a relationship between his claimed diabetes mellitus disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.