Citation Nr: 20072263 Decision Date: 11/09/20 Archive Date: 11/09/20 DOCKET NO. 11-22 503 DATE: November 9, 2020 ORDER Entitlement to service connection for diabetes mellitus type II, including as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus type II began during active service or was otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 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 March 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This claim was previously before the Board in April 2014, May 2017, February 2018, and August 2019. The case has been returned to the Board for review. The Board recognizes the time that the Veteran has devoted to this appeals process and appreciates his patience. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The Veteran provided testimony in a hearing with a Veterans Law Judge on June 2013. This hearing was before a now-retired judge. In a April 2016 correspondence, the Veteran was given the opportunity to request another hearing. The Veteran and his representatives did not request a new hearing. The Board has considered the transcript of the June 2013 hearing as evidence in making this decision. Service Connection 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). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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). In addition, service connection may also be established under 38C.F.R. §3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Diabetes mellitus is chronic disease listed under 38C.F.R. §3.309(a); and thus, 38C.F.R. §3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38U.S.C. §1110; 38C.F.R. §§3.307, 3.309(a). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed in 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with herbicide agent exposure for purposes of the presumption include diabetes mellitus type II. 38 C.F.R. § 3.309. For service in Thailand during the Vietnam Era, there is no similar statutory or regulatory presumption of exposure to an herbicide agent during such service. Nonetheless, pursuant to VA policy, special consideration will be accorded, and exposure herbicide agents will be acknowledged if the veteran served at the RTAFBs at U-Tapao, Ubon, Nakhom Phanom, Udorn, Takhli, Korat, or Don Muang; and served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the base perimeters. Service near a base perimeter may be shown by a veteran’s military occupational specialty (MOS), daily work duties, performance evaluations or other credible evidence. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection. Facts and Analysis The Veteran contends that his diabetes mellitus is due to exposure to herbicide agents while in service. The Board finds that the Veteran has a current diagnosis of diabetes mellitus type II from the September 2008 private treatment records. Therefore, the first element for service connection is met. In the February 2018 Board decision, the Board found that the Veteran did not serve in Vietnam and is not presumed to have been exposed to herbicide agents while serving in Thailand. As noted in that decision, the Veteran did not serve in Thailand between February 28, 1961 and May 7, 1975. Accordingly, the presumption of exposure to herbicide agents based on service in Thailand is not applicable and the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.309(e). Moreover, there is no other competent evidence in the record that the Veteran’s diabetes is otherwise related to service such that service connection on a direct service basis is warranted. The Board has reviewed the record, including service treatment records and post-service treatment records, for any indication that diabetes could have been caused by or was a result of the Veteran’s active duty service but finds that the preponderance of the evidence is against it. The Veteran was examined for his diabetes mellitus in January 2020. The January 2020 VA examiner opined that the Veteran’s diabetes mellitus type II was not due to his military service. In providing this opinion the examiner referred to the Veteran’s 1978 separation exam and service treatment records. The examiner noted that the Veteran was not diagnosed with diabetes until 2008. The examiner noted that the Veteran self-reported history of sugar in urine at the age of 11, at which time he was tested for diabetes due to a family history of diabetes. The examiner also noted that his urinalysis at the time of discharge, as well as two urinalyses during service, were all negative for protein and glucose. The examiner noted that the Veteran was not diagnosed with diabetes until almost 30 years after he was discharged from service. Due to these facts, the examiner opined that the Veteran’s diabetes mellitus type II was not related to service. While diabetes is a chronic disease, the Veteran is not entitled to presumptive service connection. In reaching this conclusion, the Board finds the January 2020 VA examiner’s opinion probative because the examiner reviewed the Veteran’s claims file, noted the Veteran’s in-service examinations, noted the Veteran’s lay testimony, and provided an adequate analysis to support their rationale. As noted by the VA examiner, the Veteran was diagnosed despite the Veteran’s self-reports of a family history of diabetes and sugar in his urine, the Veteran’s in-service urinalysis, including at discharge, were negative for protein and glucose indicative of diabetes. The medical evidence shows that the Veteran’s diabetes began in 2008, 30 years after his discharge. Therefore, the medical evidence shows that the Veteran’s diabetes did not manifest to a degree of 10 percent disabling within one year of his separation from service; and therefore, a presumption of service connection based on the chronicity of diabetes is not warranted. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Moreover, there is no other competent medical evidence that provides a positive nexus between the Veteran’s diabetes and his service. The Board has considered the Veteran’s lay statements that his diabetes is the result of herbicide agent exposure; however, the Board finds that he is not competent to determine medical etiology or nexus as this requires specialized medical training that the Veteran has not been shown to have. In conclusion, the preponderance of the evidence is against a finding that the Veteran’s diabetes mellitus type II is related to service. There is no competent evidence in the record to show that the Veteran was exposed to herbicides agents in Thailand. Additionally, there is no probative medical evidence in the record that indicates that the Veteran’s diabetes mellitus type II was otherwise related to service. Therefore, entitlement to service for diabetes mellitus type II must be denied. (Continued on the next page)   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board N. Jamordee 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.