Citation Nr: 20045007 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-01 903 DATE: July 7, 2020 ORDER Service connection for diabetes mellitus is denied. FINDING OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era or in the Korean DMZ between April 1, 1968, and August 31, 1971. He has not established actual exposure to an herbicide agent. 2. The Veteran’s diabetes mellitus 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 have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113, 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 from July 1969 to February 1972, including service in Korea from March 1971 to January 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is associated with the claims file. In January 2019, the Board denied the Veteran’s claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which in a November 2019 Order and pursuant to a Joint Motion for Remand (JMR), vacated the January 2019 denial and remanded the case to the Board. Specifically, the Parties to the JMR identified that from the transcript it did not appear that the Board’s May 2017 hearing fulfilled the obligations imposed by 38 C.F.R. § 3.103 (c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010), which require the hearing officer to fully explain the issues and assist the Veteran in substantiating his claim. Specifically, the parties agreed that the VLJ explained “the nature of the hearing” prior to going on the record. As such, it cannot be determined whether the Board member explained the elements of service connection for diabetes mellitus pertinent to this case to the Veteran in a manner that satisfied the duty to fully explain the issues. The basis for remand of the case, was for the Board to explain whether the hearing officer complied with the duty to fully explain the issues as laid out in Bryant. The Board finds that, to the extent that the Veterans Law Judge did not fully explain, on the record, the elements of service connection for pertinent to this case, there was no prejudice to the Veteran and any error in notice provided during the Veteran’s hearing constitutes harmless error. See Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (an error should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis); 38 C.F.R. § 20.1102 (2019) (an error or defect in a Board decision that does not affect the merits of the issue or substantive rights of the appellant will be considered harmless). An error is prejudicial when it “affects a substantive right that a statutory or regulatory provision was designed to protect” and “affects the essential fairness of the adjudication.” Overton v. Nicholson, 20 Vet. App. 427, 434-35 (citing McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984)). An appellant generally bears the burden of demonstrating the prejudicial effect of an error. Sanders, 556 U.S. at 409-11; Simmons v. Wilkie, 30 Vet. App. 267, 280 (2018). The Board finds that the hearing, as a whole, informed the Veteran regarding the information and evidence not of record that was necessary to substantiate his claims. Here, the Veterans Law Judge asked questions focused on the elements necessary to substantiate the claims, specifically regarding the Veteran’s recollection of his proximity near the demilitarized zone (DMZ) in Korea, sought to identify any further development that was required, and asked questions that ensured no evidence was overlooked. Moreover, during the hearing, the Veteran demonstrated actual knowledge of what was needed to substantiate his claim. The focus of the hearing was his location in Korea. He has consistently contended one theory of entitlement to service connection – that he was exposed to Agent Orange via the Korean DMZ. He had no service in Vietnam or at an air base in Thailand, and has never contended such. Hence, had the transcript shown that the Veterans Law Judge informed the Veteran that he could demonstrate the inservice and nexus elements of a service connection claim by showing the required location of his presence in Korea with regard to the DMZ, or presence in Vietnam, or at the perimeter of a Thai air base, or showing presence of DM during service or within one year of separation from service, it would have made no difference in the outcome of this case. He provided testimony with regard to his only contention. In this regard, the Veteran had actual knowledge of the evidentiary requirements and deficiencies in his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant’s representative that demonstrate an awareness of what was necessary to substantiate his or her claim). See November 2016 Statement of the Case (SOC), which clearly set forth elements of service connection and the evidentiary deficiencies for the Veteran’s disability. Significantly, moreover, the Veteran was represented by the American Legion, a national veterans service organization, which is well versed in VA service connection claim evidentiary requirements. Indeed, the Veteran’s representative’s questions specifically elicited responses designed to show that the Veteran’s claimed disability was related to service, with a lengthy discussion and numerous statements referring to the DMZ. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (holding that a claimant’s actual knowledge may be imputed through the actions of a representative). To reiterate, the Veteran’s contentions have consistently been that he was exposed to herbicides during active service as the basis for his claim. The hearing focused on how he believed he was exposed, proximity to the DMZ. He does not allege diagnosis of DM during service or within one year of separation from active service and the record shows that he was first found to have DM many years after active service. Additionally, he clearly knew the scope of evidence he could submit to support his claim, as shown by the evidence that he submitted. Thus, informing him on the record of that which he already knew, that if he could show exposure to Agent Orange during service by showing proximity to the DMZ during the appropriate period his claim could be granted, would not have changed the outcome of his claim and appeal. He has demonstrated during the hearing that it was proximity to the DMZ that he needed to prove in this case. The Board sees no basis to remand to provide opportunity for a second hearing or any other additional notice merely to explain to the Veteran the very requirements of service connection which were made known to the Veteran through questions from the Veterans Law Judge during the May 2017 Board hearing and, at the very least, through the assistance of his representative. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for diabetes mellitus The Veteran asserts that he was exposed to herbicide agents while stationed with Battery D, 2nd Battalion, 71st Artillery near the demilitarized zone (DMZ) in Korea from March 1971 to January 1972 and has developed diabetes mellitus as a result of that exposure. He has not made other assertions as to why he believes service connection is warranted. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has diabetes mellitus, which is a chronic disease under 38 C.F.R. § 3.309 (a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. In his lay statements, the Veteran reported an initial diagnosis of diabetes mellitus in 1995 or 1996. The first reference to a diagnosis of diabetes mellitus in the record is a February 1996 private treatment record, decades after his separation from service and decades outside of the applicable presumptive period. Service connection also may be presumed for certain diseases, including type II diabetes mellitus and ischemic heart disease, for veterans who were exposed to an herbicide agent such as that found in “Agent Orange” during active service. See 38 C.F.R. § 3.309 (e). Additionally, exposure to herbicide agents is presumed for veterans who served in the Republic of Vietnam, during the Vietnam Era (from January 9, 1962 to May 7, 1975) and for veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied during this period. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Here, there is no indication that the Veteran served in the Republic of Vietnam. He did serve in Korea from March 1971 to January 1972 and so the question becomes whether this service included service in or near the Korean DMZ. The Veteran has submitted excerpts from February 2009 and August 2013 Board decisions that found credible the assertions of DMZ service by other veterans. However, it is well-established that decisions of the Board have no precedential value. See 38 C.F.R. § 20. 1303. Previously issued Board decisions are binding only with regard to the specific case decided, and lack probative value in the present appeal. Moreover, these veterans served in the 7th Battalion, 5th Artillery and 2nd Artillery Divisions, respectively, whereas the Veteran served in the 71st Artillery Division. Therefore, even if these decisions were precedential, they involve the movements of other units and are not probative in this case. In a July 2013 memorandum, VA made a formal finding that it was unable to verify service along the Korean DMZ that resulted in exposure to herbicide agents. After a review of the evidence, the Board agrees. Based on his service personnel records, the Veteran did not serve in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during this period. The October 2012 National Personnel Record Center response to a PIES request was “No records of exposure to herbicides.” In his lay evidence, the Veteran has listed Camps Red Cloud, Hill, Stanley, Humphreys, Casey, Munsan, Sea Range, and others as locations he visited as part of his duties during service. There is no showing that these camps were located along the DMZ. In an October 2013 statement, fellow service member G.N.B. stated that their TAC site was Site 34, which was closer to the DMZ than their assigned camp, noting that this site was ten or eleven miles from the DMZ. The Veteran submitted a map showing TAC 2 Site 34 as West-northwest of Uijongbu and East-northeast of Camp Howze, which is still clearly outside of the DMZ. At his May 2017 hearing, the Veteran stated that he was very close to the DMZ, which he quantified as 17 air seconds or less than four miles. He reported that he could see the gun embankment with binoculars and estimated that was less than two miles away. He further testified that he either crossed or was right by Freedom Bridge. While Freedom Bridge would put the Veteran significantly closer to the DMZ than any of his other statements, it does not place him in or near the DMZ for the purposes of 38 C.F.R. § 3.307 (a)(6). Thus, the evidence of record does not show service in or near the Korean DMZ that would warrant the presumption of exposure to herbicide agents and the Veteran must establish actual exposure. To this end, the Veteran has submitted his own lay statements and testimony as well as lay statements from two fellow service members, G.N.B. and H.J.O. In his own lay statements and testimony, the Veteran reported witnessing herbicides and insecticides sprayed from backpack sprayers to defoliate the perimeters and up to 50 yards inside the outer fences of his Tac sites, including areas he walked through. In his December 2012 statement, the Veteran reported seeing orange-coded barrels. Despite the Veteran’s assertion that this defoliant came from orange-banded barrels, this alone is not indicative that the drums actually contained herbicide agents. In an October 2013 statement, G.N.B. stated that he had witnessed their TAC site being sprayed with backpack sprayers by South Korean employees. Similarly, in a March 2015 statement, H.J.O. noted that the perimeters of the various battery sites were defoliated from the equipment areas 25 to 50 yards to the outer fence. He had seen others spray chemicals to kill the vegetation and it was his understanding that they were using Agent Orange. Despite H.J.O.’s belief that this was Agent Orange, he has not submitted any evidence to render this belief competent evidence. While the Veteran and both service members are competent to provide lay evidence of witnessing defoliant being sprayed, they have not provided any evidence that any of them were competent to identify these chemicals as Agent Orange or other herbicide agent as defined by 38 C.F.R. § 3.307 (a)(6). Thus, the lay evidence does not establish actual exposure to herbicide agents. Also, in his December 2012 statement, the Veteran stated that he had an email from another former service member stating that he had personally sprayed Agent Orange all over the hills and around his HAWK site. This email is not of record and so it cannot be used to corroborate the Veteran’s claim. Service connection for diabetes mellitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s diabetes mellitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the evidence does not establish diabetes mellitus or any related injury or exposure to herbicides during service. The service treatment records are silent for complaint of, treatment for, or a diagnosis of this condition during his active duty service. As explained above, the evidence is against a finding of exposure to herbicide agents in service. Thus, there is no evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked. As such, an opinion is not necessary. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for diabetes mellitus and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.