Citation Nr: 20007350 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 13-10 968 DATE: January 29, 2020 ORDER Entitlement to service connection for diabetes mellitus, claimed as result of exposure to herbicides is denied. FINDING OF FACT The Veteran’s diabetes mellitus, claimed as result of exposure to herbicides was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, claimed as result of exposure to herbicides are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to October 1975 and from February 2004 to January 2005. The matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In January 2017 and February 2018, the Board remanded the issue concerning service connection for diabetes mellitus to the RO for additional development, and the case now returns to the Board for further appellate review. The Board finds that there was substantial compliance with the Board’s remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). I. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a 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. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, and the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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). When considering whether lay evidence is 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, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus, claimed as result of exposure to herbicides The Veteran contends that service connection is warranted for diabetes mellitus because he was exposed to herbicides during active duty while serving in Japan and as a result, presumptive service connection should be granted. In a January 2014 statement, the Veteran related that he believed that his exposure to herbicides was due to trucks spraying pesticides around the perimeters and in ditches of Kadena Air Force Base, Camp Naha, and Camp Swab. The Veteran also maintains that his diabetes mellitus may be a result of exposure to aviation fuel at Kadena Air Force Base, Camp Swab, Balad Air Base, and at Camp Anaconda, Iraq. In support of his contentions, the Veteran has submitted articles from the Asia-Pacific Journal and the Japan Times, which indicate that stockpiles of Agent Orange were kept on the Kadena Air Base. In July 2016, a hearing was scheduled at the Veteran’s request before a Veteran’s Law Judge. However, the Veteran failed to appear and did not provide good cause for missing the hearing. The January 2017 Board Remand directed the Agency of Original Jurisdiction (AOJ) to obtain treatment records identified by the Veteran, to request from the Veteran a more detailed statement about his exposure to herbicides and jet fuel, and to submit a request for Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. The AOJ subsequently sent a development letter to the Veteran in February 2017, which requested that the Veteran provide the names and addresses of any additional records, treating providers, medical reports, and statements about how his military occupational specialty exposed him to herbicides. However, the development letter neglected to address the remand directives regarding jet fuel exposure and the matter was remanded again in February 2018 to complete additional development regarding exposure to jet fuel. After the initial Board Remand in January 2017, it was determined that all identified VA treatment records were associated with the claims file. See October 2017 VA Memo. In February 2017, the Veteran was asked to submit additional information regarding his claimed herbicide exposure. Id. However, the Veteran failed to respond and therefore it was determined that a VA examination was not warranted. Id. In June 2017 a formal finding was issued by the JSRRC that all efforts to obtain the needed information from the Veteran regarding exposure had been exhausted and further attempts would be futile. See June 2017 VA Memo. After the matter returned to the Board in February 2018, the Board found that the previous remand directives regarding exposure to jet fuel were not complied with and remanded the issue once again to the AOJ to complete additional development. An October 2018 developmental letter was sent to the Veteran requesting information regarding his contention that he was exposed to jet fuel. However, the Veteran failed to provide any information regarding his claimed exposure to jet fuel. VA and private treatment records in the Veteran’s claims file show that he has been diagnosed with diabetes mellitus type II since April 2008. However, no nexus to military service is shown. The Veteran’s service treatment records, entrance and separation examinations do not show any treatment, complaints or diagnosis of diabetes mellitus in-service or within one year of separation from service. A review of the Veteran’s DD-214 shows his military occupational specialty (MOS) listed as Administration Specialist during his initial period of active duty from October 1971 to October 1975. Considering the administrative nature of the Veteran’s MOS, his contention that he was exposed to herbicides in his admin role while serving in Japan because herbicide agents were sprayed by trucks near the base perimeter is not supported by the evidence of record. The Veteran’s MOS during his second period of active duty from February 2004 to January 2005 is listed as Personnel Specialist, which fails to connect the Veteran’s job to claimed exposure to herbicides, including jet fuel. The duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the Veteran remains passive). The Board observes that the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records and all identified, relevant, and available post-service medical records have been associated with the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue on appeal herein. The Veteran’s argument that he could have been exposed to herbicide agents in Okinawa, Japan without corroborating evidence has little probative value. Furthermore, as previously noted, the Veteran did not appear at a previously scheduled hearing at his request before a Veteran’s Law Judge to testify about his exposure in-service in July 2016, without good cause. Although the Board finds the Veteran credible, the record is negative for competent evidence as to herbicide exposure to the Veteran in Okinawa. While the evidence the Veteran submitted indicates herbicide agents may have been stored in Okinawa, the evidence of record does not show the Veteran was exposed to them while stationed in Japan. The Board does acknowledge that the Veteran has not been afforded a VA examination in connection with his claim for service connection for diabetes mellitus, claimed as result of exposure to herbicides. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is unnecessary to decide the claim for service connection for diabetes mellitus, claimed as result of exposure to herbicides, as such an examination would not provide any more pertinent information than is already associated with the claims file as the Veteran has not responded to several attempts by the AOJ to obtain more information regarding his claimed exposure to herbicides while serving on active duty in order to determine the etiology of such exposure. Based on the foregoing, entitlement to service connection for diabetes mellitus, claimed as result of exposure to herbicides is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for diabetes mellitus, claimed as result of exposure to herbicides, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.