Citation Nr: 20073395 Decision Date: 11/16/20 Archive Date: 11/16/20 DOCKET NO. 14-31 597A DATE: November 16, 2020 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran served on temporary duty (TDY) at the Korat Royal Thai Air Force Base (RTAFB) during the Vietnam era or that he was otherwise exposed to herbicides during his military service. 2. The Veteran’s type II diabetes mellitus did not manifest in service or within one year thereafter and is not otherwise related to service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1971 and from December 1971 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In February 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Initially, the Board finds that VA’s duty to assist has been met with regards to attempting to verify the Veteran’s claimed in-service herbicide exposure. In July 2010, the AOJ issued a memorandum as to a formal finding of a lack of information required to verify herbicide exposure. In January 2020, the AOJ requested that the Veteran provide information as to the nature of his herbicide exposure, to include how his military duties exposed him to herbicides, and to provide dates for his reported TDY and to identify the unit that he served with at Korat RTAFB. The Veteran did not respond to that request. The “duty to assist is not always a one-way street,” and a veteran has an obligation to actively participate in the retrieving of any information pertinent to his claim, to include attending scheduled VA examinations and identifying relevant records. He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so subjects him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Given the facts of this case, the Board finds that no further notification or development action is necessary. The AOJ has met its duty to assist by initiating development and attempting to complete all actions requested in the Board’s February 2019 remand directives. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner 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 may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). 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. As diabetes mellitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in the waters offshore during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (a)(1); 38 U.S.C. § 1116A; 38 C.F.R. § 3.307 (a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). The diseases presumed to be associated with herbicide exposure include type II diabetes mellitus. 38 C.F.R. § 3.309(e). VA has also 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 certain Thailand military bases during the Vietnam era. As such, herbicide exposure should be conceded on a facts found or direct basis if a veteran served in the Air Force in Thailand during the Vietnam era at one of the listed bases, including the Korat Royal Thai Air Force Base (RTAFB), 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 military occupational specialty, performance evaluations, or other credible evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for type II diabetes mellitus. The Veteran has contended that he has type II diabetes mellitus as a result of herbicide spray drift while stationed in Thailand at Korat RTAFB in 1968 or 1969. Throughout the appeal, the Veteran has maintained that he served at Korat RTAFB on temporary duty (TDY) orders for 90 days when he was stationed in Taiwan. The Veteran’s service personnel records document that his military occupational specialty (MOS) was an administration technician (staff support). A report listing the Veteran’s chronological service indicated that he was an administrative specialist/clerk assigned to Detachment 1, 6217 Supply Squadron at Tainan, Taiwan, from May 1968 to September 1969. Thereafter, from September 1969 to October 1971, the Veteran was assigned to Beale Air Force Base in California as an administrative specialist. In a January 2011 statement, the Veteran stated that he worked on the flight line at Korat RTAFB. In a July 2011 statement, he reported that, while he was on a TDY assignment at Korat RTAFB, he was on a supply detail working on and near the perimeter of the base loading supplies onto aircraft. In his September 2014 substantive appeal, the Veteran related that he was had temporary duty orders to Korat RTAFB as supply support on the flight line. During the October 2018 hearing, the Veteran testified that he flew from his base in Taiwan to Korat RTAFB for he had 90 days of TDY. His representative contended that the Veteran was exposed to herbicide spray drift beyond the areas of herbicide application and beyond the buffer zone of 500 meters. See October 2018 Bd. Hrg. Tr., p. 3. Alternatively, the Veteran has claimed that he was exposed to herbicides and other contaminants containing dioxins while he was stationed at Kadena Air Force Base (AFB) in Okinawa, Japan, for over two years. An airman separation record indicated that the Veteran was assigned as an administrative specialist at Kadena AFB in September 1974. During the October 2018 hearing, his representative stated that documentation has shown that herbicides were used on Okinawa and that shipments of herbicides transited through Okinawa on their way to Vietnam. The representative also contended that that journals have shown that Agent Orange, dioxin, toxic dumps, and fish kills were prevalent on Okinawa. See October 2018 Bd. Hrg. Tr., p. 4. The post-service evidence shows that the Veteran was diagnosed with type II diabetes mellitus in 1999. See, e.g., June 2010, January 2011 VA treatment records. On review, the Board finds that the Veteran’s current diabetes mellitus did not manifest in service. The Veteran’s service treatment records do not document any complaints, treatment, or diagnosis of diabetes mellitus. In fact, his endocrine system was found to be normal during a May 1977 separation examination. The Veteran also denied having a history of relevant symptoms on the corresponding reports of medical history for the separation examination. To determine that a chronic disease was “shown in service,” the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had diabetes mellitus during service. Therefore, chronicity is not established in service. Moreover, the record contains no indication that the disorders manifested to a compensable degree within one year of the Veteran’s military service. The Veteran has not contended otherwise. Instead, he has claimed service connection for diabetes mellitus on the basis of herbicide and dioxin exposure only. See, e.g., January 2011 claim; July 2011 notice of disagreement; September 2018, October 2018 representative statements; October 2018 Bd. Hrg. Tr. at 3-4. In September 2018, the Veteran’s representative submitted various articles in support of the Veteran’s claim that he was exposed to herbicides at Korat RTAFB and various contaminants, including herbicides and dioxins, at Kadena Air Base. Notably, the articles do not consider the specific facts and circumstances presented in the Veteran’s appeal. Regarding the claimed in-service herbicide exposure, the Veteran does not contend, and the evidence does not show, that he served in the Republic of Vietnam or Korea. The record also does not show that the Veteran was officially assigned to Korat RTAFB during the Vietnam era. His performance reports show that he was assigned to Tainan Air Vase in Taiwan from May 1968 to August 1969. However, there are no records showing that the Veteran had TDY orders to Korat RTAFB. In addition, even if the Veteran had confirmed service in Thailand, the Board notes that he did not serve as a security policeman, a security patrol dog handler, or a member of a security police squadron. Rather, the record indicates that his MOS was an administrative specialist. Further, a review of the Department of Defense (DOD) inventory of herbicide operations found that no tactical herbicides were transported to, used, stored, buried, or tested in Okinawa, Japan. Therefore, after considering all of the evidence of record, the Board finds that the evidence weighs against a finding that the Veteran was exposed to the herbicides during his military service. The Board also finds that service connection for diabetes mellitus is not warranted on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307, 3.309. The Board notes that type II diabetes mellitus is a disease for which service connection is available on a presumptive basis. See 38 C.F.R. § 3.309(a). However, the Veteran does not contend, and the evidence does not show, that he experienced diabetes mellitus during active service or within one year thereafter. Rather, the evidence shows that he was diagnosed with diabetes mellitus several decades after his separation from service. Thus, the Board finds that service connection for diabetes mellitus is not warranted on a presumptive basis as a chronic disease. Nevertheless, the Board has also considered whether service connection is warranted on a direct basis. As discussed above, the Board finds that diabetes mellitus did not manifest in service or for many years thereafter. There is also no disease, injury, or event in service to which the current disorder could be related. Moreover, a February 2020 VA examiner opined that the Veteran’s diabetes mellitus was less likely than not due to in-service herbicide spray drift while serving in Thailand in 1968 or as due to other toxic pollutants and other contaminants containing dioxin and tactical herbicides while stationed at Kadena AFB in Okinawa. The examiner explained that the Veteran had a known family history of diabetes mellitus and other coronary disease equivalents, including obesity and hypertension, that placed him at risk of developing diabetes mellitus. The examiner noted that the service treatment records did not indicate an in-service diagnosis of type II diabetes and that the evidence showed that the Veteran was diagnosed in 1997, which was over 20 years after he separated from service. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.