Citation Nr: 20037372 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-41 983 DATE: June 2, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II, with erectile dysfunction is denied. Entitlement to service connection for lung cancer, status post right upper lobectomy, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have served in Vietnam, or to have been exposed to herbicide agents/Agent Orange in service, to include during service in Korea. 2. The Veteran’s diabetes mellitus type II and lung cancer were not manifested in service or for many years thereafter and are not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, type II, is not warranted. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for lung cancer is not warranted. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for diabetes mellitus, type II with erectile dysfunction is denied. 2. Entitlement to service connection for lung cancer, status post right upper lobectomy is denied. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include diabetes mellitus type II and respiratory cancers such as cancer of the lung) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for respiratory cancers and/or diabetes mellitus). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For such chronic diseases, a nexus to service may also be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicide agents in service, including while serving in Thailand, or in the DMZ in Korea. The Department of Defense (DoD) has determined that herbicide agents (including Agent Orange) were used along the Korean DMZ from April 1, 1968, to August 31, 1971. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that period are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). If there is no official documentation of service at a location that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure is thus a matter of fact to be determined by the Board. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease (to include lung cancer and diabetes mellitus type II), the veteran is entitled to a presumption of service connection for such disease 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). If the Veteran did not service along the DMZ between April 1, 1968 and August 31, 1971, actual exposure to herbicide must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. If exposure to herbicides is established, the presumption of service connection in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, a Veteran may establish service connection with proof of actual causation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Combee, 34 F.3d at 1042. Direct service connection may still be established by evidence of actual exposure to herbicides and that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee, 34 F.3d at 1042. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. 4.3. 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that his lung cancer and diabetes mellitus type II are attributable to exposure to Agent Orange while performing his duties in Korea nearby the DMZ from 1966 to 1967. The Veteran’s service treatment records are silent for complaints, treatment, or diagnosis of lung cancer or diabetes mellitus, type II. An April 1968 service separation examination reflects that no pertinent abnormalities were noted. The first post-service evidence of elevated blood glucose is shown in April 2012. An April 2012 treatment record notes that the Veteran’s recent laboratory results indicated elevated glucose levels. He was diagnosed with type II diabetes and prescribed Metformin at 250mg twice daily. On August 27, 2012, the Veteran was diagnosed with Stage 1 adenocarcinoma of the lung. In July 2016, the Veteran reported that he hauled supplies to the DMZ, such as food, clothing, shells and drums of liquids, which was later found to be Agent Orange. It is not in dispute that the Veteran has lung cancer and diabetes mellitus type II, as treatment records clearly show diagnoses of such diseases. However, the evidence does not show that lung cancer and/or diabetes mellitus type II were manifested in service or within one year of service discharge. The Veteran’s service treatment records, including his 1968 service separation examination report are silent for complaints, treatment, findings, or diagnoses related to lung cancer or diabetes mellitus type II. Likewise, lung cancer and or diabetes mellitus type II are not shown to have been manifested within one year following the Veteran’s separation from service, nor is post-service continuity of manifestations of the disease shown or alleged. Lung cancer and diabetes were initially diagnosed in 2012, approximately 43 years after the Veteran’s separation from service. Accordingly, service connection for lung cancer and diabetes mellitus, type II, on the basis that they became manifest during service and persisted as a chronic disease under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303(b)), is not warranted. Service connection for lung cancer and diabetes mellitus, type II, is also not warranted based upon in-service exposure to herbicide agents, as the evidence does not establish presumptive exposure to herbicide agents or actual exposure to herbicide agents. The Veteran’s service personnel records indicate that he was stationed in Korea from November 1966 to December 1967. As it is not shown that the Veteran served at or near the Korean DMZ between April 1, 1968 to August 31, 1971, the time period during which the presumption of exposure to herbicide agents applies, the Veteran does not meet the criteria for exposure to herbicide agents on a presumptive basis based upon his service in Korea at or near the DMZ. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv). Accordingly, the Veteran is not presumed to have been exposed to herbicide agents during his active duty service. As noted above, the Veteran may still establish service connection for his claims if the evidence shows both that he was exposed to herbicide agents during service and that such exposure caused the claimed disabilities. In support of his contention that he was exposed to Agent Orange residue when he hauled drums of liquids which were later found to be Agent Orange, the Veteran submitted a lay statement from K.R. K.R. reported that he served with the Veteran, and that the Veteran’s duties included “the handling of Agent Orange by loading and transporting by large truck . . . [which] exposed him to large amounts of the hazardous material known as Agent Orange.” K.R. also stated that the Veteran cleared a mine field after Agent Orange was sprayed on the mine field. While the Veteran and K.R. are competent to attest to factual matters of which they have first-hand knowledge, such as loading and hauling drums of liquid and observing the spraying of a mine field, the record does not establish their competency to identify the specific chemical composition of such substances, and they have not provided any details explaining how they learned that the liquids in the drums or the substance sprayed on the mine field was, in fact, Agent Orange. While the Veteran may be sincere in his belief that he was exposed to Agent Orange in the Korean DMZ in 1966 to 1967 and is competent to report the use of liquids sprayed on grass and trees, he is not competent to establish by his own opinion that the DMZ was contaminated with herbicide agents (as defined in 38 C.F.R. § 3.307 (a)(6)) before (as DoD has determined) herbicide agents were first used along the Korean DMZ in April 1968. His assertions and those of K.R. are lay speculations on a matter that requires scientific expertise, and he does not cite to supporting factual data or scientific treatise. Therefore, the Board does not afford significant probative value to these lay statements. The Board has also considered whether there is any other evidence of a link between the Veteran’s diabetes or lung cancer and an incident of active duty service. He has not alleged any other service injury to account for his current diabetes or lung cancer, and service records are negative for any findings or symptoms of the disabilities. There is also no lay or medical evidence of diabetes or lung cancer until many years after the Veteran’s separation from service. Finally, the record is negative for any competent medical evidence in support of the claims, to include any statements from the Veteran’s treating VA or private physicians. The only evidence that relates the Veteran’s diabetes and lung cancer to his active duty service are in his own lay statements. The Veteran has not contended or shown that he is qualified through specialized education, training, or experience to offer an opinion on questions that require scientific/medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377. The Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107 (b). As there is no competent evidence that the Veteran’s lung cancer and/or diabetes mellitus may be etiologically related to his service, even the low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)), and an examination to secure a medical opinion in this matter is not necessary. In summary, the evidence does not show that the Veteran served in the Korean DMZ during the period when herbicide agents are presumed to have been used there. There is no probative, affirmative evidence in the record that he was actually exposed to herbicide agents in service. Furthermore, there is no competent evidence in the record linking the current claimed disabilities, first shown decades after separation from service, to any incident of service. Considering the foregoing, the preponderance of the evidence is against these claims. The benefit-of-the-doubt standard of proof does not apply; the appeal in the matters must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.