Citation Nr: 20037167 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 17-34 801 DATE: June 1, 2020 ORDER Entitlement to service connection for type 2 diabetes mellitus (diabetes), to include as due to herbicide agent exposure is denied. FINDING OF FACT The Veteran’s diabetes was not incurred in service, nor is it related to service, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for type 2 diabetes mellitus (diabetes), to include as due to herbicide agent exposure have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1959 to December 1962 in the United States Marines Corps. The Veteran requested a hearing at a local VA office in his VA Form 9, dated July 2017. A hearing was scheduled for June 2020. After certification in August 2017, the Veteran, through counsel, submitted an Affidavit dated March 2020 stating that he wished to withdraw his request for a Board hearing. The Board thus deems the appellant’s request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). Entitlement to service connection for type 2 diabetes mellitus (diabetes), to include as due to exposure to herbicide agent exposure The Veteran asserts that his diabetes is related to active service, to include as secondary to exposure to toxic herbicides while at Royal Thai Air Force Bases (RTAFB) in Ubon, Udorn, and Don Muang. Specifically, the Veteran asserts that while assigned to temporary guard duty, he passed in and out of the perimeter of RTAFBs to include Ubon and Udorn. The Veteran writes in a May 2017 statement that he “could have” been exposed to Agent Orange while serving in Thailand at one of these AFBs, and that rain from nearby hills “could easily” have washed Agent Orange onto an AFB, leading to exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service, to include as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309. The Board concludes that while the Veteran has a current diagnosis of a diabetes, the preponderance of the evidence weighs against finding that this disorder began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. As an initial matter, presumptive service connection implies that service connection can be granted for any of the applicable disabilities listed under 38 C.F.R. § 3.309(e), to include diabetes. To warrant service connection through this section, the Veteran must show exposure to certain herbicide agents during active service. That is, if herbicide exposure is found on either an actual or presumptive basis, then service connection of a listed qualifying disability is guaranteed by statute. However, there has not been a showing of actual exposure to toxic herbicides. In this regard, a May 2010 VA Compensation and Pension Bulletin indicated that there was significant use of some herbicides on the fenced-in perimeters of military bases in Thailand, which was intended to eliminate vegetation and ground cover for base security purposes. Therefore, when veterans claim herbicide-related exposure in Thailand, evaluation of whether a veteran was actually exposed to such herbicides may also be for consideration. VA’s Adjudication Procedure Manual, M21-1, Part IV.ii.1.H.5.b. (August 13, 2017) was thereby adopted for application in cases where a Veteran alleged exposure to herbicides in Thailand, and contemplates the possibility that veterans who were at the specified Royal Thai Air Force Bases (RTAFBs), including at Ubon and Udorn, and were involved with airbase perimeter security may have been exposed to toxic herbicides. Before turning to the merits of the Veteran’s specific claim, the Board emphasizes that the entire concept of applying 38 C.F.R. §§ 3.307 and 3.309 to veterans serving at the RTAFBs is very tenuous, and reaches back to a VA Compensation and Pension bulletin from 2010, which proposed the potential possibility that veterans there were exposed to dioxin-containing pesticides (not herbicides), based on the results of the Project CHECO Southeast Asia Report, even though that report was also rather equivocal in its findings. As of this decision, it has been over a decade since this bulletin was published and subsequently incorporated into the VA Adjudication Procedures Manual, M21-1. However, the Board notes that no statute has ever cemented the bulletin into law, nor does any VA regulation (to include 38 C.F.R. § 3.307 or 3.309) require the Board to consider service connection on this basis. Indeed, despite the efforts of the Veteran’s attorney to write this passage into statute, it is unclear whether the Board is bound to consider this bulletin (or the M21-1 passage) at all. See DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). Nevertheless, this question need not be answered here, as the Board finds that the special consideration envisioned by the C&P bulletin extends only to those veterans whose duties specifically placed them on or near the perimeters of the RTAFBs. See Compensation and Pension Service Bulletin, May 2010, Sec. 2 (Policy 211). This bulletin, and the subsequent development manual provisions in the M21-1, make it clear that this presumption is afforded based on actual, consistent service at the border of the RTAFBs, not on mere incidental contact, to include passing through the border to come and go from the base, or to visit buildings near the border. Indeed, this is inferred in the wording in the M21-1, which limits such a presumption to specific military occupations, or to those who otherwise served near the air base perimeter. That any party would come into contact with the border to enter and exit the base, or might enter buildings which are not directly in the middle of the base, would be generally accepted for most veterans who served on a RTAFB. Such an interpretation is reasonable. If VA policy intended to provide a presumption to every single veteran who crossed the border of the base to enter and exit, or had other incidental contact with buildings near the border, it would have to provide such a presumption to nearly any veteran who set foot on one of the acknowledged RTAFBs, and potentially anywhere in Thailand, for that matter. Instead, VA policy extends to those veterans whose actual military occupational duties placed them on or near the actual perimeter of the bases in question. While the Veteran served in Thailand within the period from 1961 to 1975, and while diabetes is a disorder that may be presumed related to toxic herbicide agent exposure under §3.309, the evidence does not show regular service at or near the perimeter of a Royal Thai Air Force Base during the relevant period. Notably, the Veteran served in the MOS of Motor Vehicle Operator, but did not serve in an MOS that would regularly take him near the perimeter of a RTAFB, to include an MOS of “dog handler” or “security patrol.” Moreover, none of the Veteran’s personnel records indicated that his job duties would regularly take him to the perimeter of any of the above bases, nor is there any other evidence in his records which would confirm or even imply such regular service at the perimeter. Unfortunately, even with the testimonial and physical evidence of record, VA cannot corroborate that the Veteran served near the perimeter of a RTAFB, to include Ubon or Udorn, nor does the evidence show regular, sustained exposure to Agent Orange in service.  Specifically, while the information provided does suggest that the Veteran was present at the perimeter at certain times in service, it does not report how often the Veteran was exposed to Agent Orange, the amount exposed, or the way he was exposed.  The Veteran has submitted several detailed schematics of the bases to which his duties took him. The Veteran has not presented evidence, whether in the form of articles or photographs, that his station brought him near the perimeter of a covered RTAFB, on a regular basis.  Indeed, while the Veteran competently states that his temporary duties took him across the perimeters of several Royal Thai Air Force Bases, and while he states that he was on temporary security patrol, he does not state, and the evidence does not reflect, that his duties involved a regular, sustained presence at a RTAFB perimeter. Accordingly, the presumption of service connection for diabetes is not available. Next, while herbicide exposure is not recognized, this does not prevent service connection based directly on active duty service. Combee v. Brown, 34 F.3d 1039, 1041-42. Unfortunately, service connection is also not warranted on this basis. As an initial matter, the Veteran’s service treatment records do not reflect that the Veteran exhibited diabetic symptomatology in service. Of note, the Veteran’s December 1962 examination is silent for any symptoms or a diagnosis related to diabetes. Specifically, his blood sugar level was noted to be normal. Indeed, the Veteran has not asserted that such symptoms were present In fact, the Veteran has recognized that he was not diagnosed with diabetes until decades later. Indeed, the post-service medical evidence, including a C&P examination from September 2016 does not demonstrate any symptoms, manifestations, or a diagnosis related to diabetes until approximately 2006 – approximately forty years since the Veteran’s separation. Moreover, the Veteran has not specifically asserted that he had diabetes since or within a year of separation. Therefore, continuity of symptoms has not been shown based on the clinical evidence, or the Veteran’s statements. Further, there is insufficient evidence in the medical records to indicate a nexus between his active service and his diabetes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his diabetes and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as increased blood sugar, he is not competent to provide a nexus opinion in this case. The issue of exposure is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Therefore, any unsubstantiated statements regarding the etiology of the Veteran’s diabetes are found to lack competency. Finally, there is no other evidence of record to relate the Veteran’s diabetes to service and, as noted above, the Board cannot recognize toxic herbicide exposure based on the evidence of record.   Thus, service connection for diabetes must unfortunately be denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia