Citation Nr: 21001378 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-18 524 DATE: January 7, 2021 ORDER New and Material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II, is reopened. Entitlement to service connection for diabetes mellitus, type II, to include as due to toxic herbicide exposure, is denied. FINDING OF FACT 1. The Veteran was denied entitlement to service connection for diabetes mellitus, type II, in a May 2012 rating decision. He did not appeal or submit new evidence within the requisite time period, rendering the May 2012 rating decision final. 2. The evidence added to the record since the May 2012 rating decision relates to unestablished facts that are necessary to substantiate the claims of service connection for diabetes mellitus, type II. 3. The Veteran’s diabetes mellitus, type II, is not etiologically related to service. CONCLUSION OF LAW 1. The May 2012 rating decision denying entitlement to service connection for diabetes mellitus, type II, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the May 2012 rating decision is new and material and the claim for entitlement to service connection for diabetes mellitus, type II, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to toxic herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to July 1967. He appeals an October 2018 rating decision denying entitlement to service connection for diabetes mellitus, type II. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. New and Material Evidence After review of the evidence submitted since the May 2012 rating decision became final, the Board finds that new and relevant evidence has been added to the record sufficient to reopen the claim. The evidence added to the record since the last final denial includes updated VA treatment records and lay statements in support of the Veteran’s claim. This evidence is new and raises the possibility that the Veteran’s diabetes mellitus, type II, is related to active service. As such, the Board finds that reopening of the claim is warranted. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Further, if a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as ischemic heart disease and type II diabetes mellitus, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), 3.313. “Service in Vietnam” for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations of the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). However, the Veterans Benefits Administration (VBA) has opened the possibility that, in addition to exposure within the Republic of Vietnam, exposure to herbicide agents may have potentially occurred in various places, including Thailand. Specifically, the VBA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. Under the procedures put in place by VBA, to benefit from the presumption of herbicide exposure at one of the above listed air bases, a veteran must have served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.a-b (January 22, 2018). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to toxic herbicide exposure. The Veteran contend that his diabetes mellitus, type II, is attributable to active service. Specifically, he alleges that he was exposed to toxic herbicides while stationed at Takhli RTAFB and/or during Temporary Duty (TDY) assignments to the Republic of Vietnam. After review of the evidence, the Board finds that service connection is not warranted. First, the evidence does not indicate that the Veteran was ever stationed in or visited the land or territorial waters of the Republic of Vietnam. Although, the Veteran alleges several in-country visits to the Republic of Vietnam, a memorandum from the Joint Services Records Research Center (JSRRC) dated January 3, 2011, reports that the Veteran assertions cannot be corroborated. Hence, no evidence exists which would corroborate the Veteran’s claims regarding in-country service in the Republic of Vietnam. Furthermore, another JSRRC memorandum dated April 12, 2012, noted that although the Veteran’s unit maintained munitions for units conducting strikes against North Vietnamese forces, no evidence of record indicates that the Veteran was ever in the Republic of Vietnam. Based on these JSRRC findings, the Board finds that in-country service in the Republic of Vietnam cannot be conceded. Next, the Board addresses the Veteran’s assertion that he was exposed to toxic herbicides while stationed at RTAFB Takhli. As an initial matter, although VBA has put in place a somewhat informal basis for granting service connection based on service at a RTAFB, such basis has never been cemented into law by statute, 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, the Board is not aware that such an action has ever even been contemplated. Accordingly, from the Board’s perspective, there is no presumption of exposure to toxic herbicides. See DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). Moreover, even if the Board were to hypothetically follow the provisions of the M21-1, exposure would still not be warranted, as the Veteran was not part of any military police squadron or was otherwise performing his duties at the perimeter in a way similar to military police. Specifically, the evidence does show that the Veteran served at RTAFB Takhli from July 1966 to July 1967 as an Inventory Management Specialist. However, the evidence does not show, and the Veteran has never argued, that he served as a security patrolman, security patrol dog handler, or a member of a security police squadron. As such, the crux of this claim is whether the Veteran’s actual military occupational duties placed him at or near the base perimeter. The Board finds that the evidence does not support such a finding. While the Board notes that the Veteran testified at his November 2020 hearing that he traveled along the base perimeter daily to assist his supervisor in conducting “cycles,” this he did not elaborate on this term. Rather, his only explanation for his supposed contact with the base perimeter was that of collecting daily reports from buildings near the perimeter. In the Board’s view, it was never the intent of the M21-1 to make these toxic herbicide provisions so open-ended. To the contrary, 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 contact with buildings within site of the perimeter. Indeed, not applying such a narrow interpretation would result in clearly unreasonable results. Otherwise, one could argue that any party that entered through the front gate would have been in contact with the border and meet the so-called requirements. In that vein, such a presumption could be applied to nearly any veteran who set foot on one of the acknowledged RTAFBs, and potentially anywhere in Thailand. It is reasonable to assume that this was never the intent. In addition, the Veteran claimed that his duties occasionally brought him within proximity of barrels containing dangerous chemicals, though no further details have been provided. Given the Veteran’s vague descriptions of both his actual duties and supposed exposure to toxic herbicides, the Board finds the Veteran’s statements to be less than credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, erroneous recollection, time of creation of the evidence, and lay statements made during treatment). Instead, In the Board’s view, VA policy extends to those who’s actual military occupational duties placed them on or near the actual perimeter of the bases in question. In this case, the Board has carefully reviewed the evidence, to include lay statements in support of the Veteran’s claim, and finds that it simply does not support a conclusion that the Veteran had regular occupational contact with the perimeter of the base, to the extent that was exposed to herbicides during his service at Takhli RTAFB. To the contrary, the evidence of record represents that the Veteran may have been in sight of the perimeter and may have had occasional incidental contact with the perimeter. However, this does not appear to be within the intent of the M21-1 provision. In sum, the Board does not conclude that there is an actual legal basis for concluding that veterans at the RTAFBs were exposed to toxic herbicides. Moreover, to the extent that any informal provisions have allowed for certain exceptions, such exposure is not conceded in the instant appeal since, based on a review of the entire record, there is insufficient evidence to concede herbicide exposure by virtue of the Veteran’s service at Takhli RTAFB. As exposure is not conceded, presumptive service-connection based on herbicide exposure is denied. Having concluded the above, the Board must also consider direct service connection. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). A review of the record confirms a present diagnosis of diabetes mellitus, type II. However, a review of the Veteran’s service treatment records does not reveal any in-service incident, illness or injury to which his present disabilities may be etiologically linked. Neither has the Veteran, at any point in time, asserted that his diabetes mellitus, type II, was first manifested directly in service. The contemporary treatment records submitted since the prior denial do not link the Veteran’s diabetes mellitus, type II, to service nor is there any medical opinion of record which would possibly link the condition to active service. As such, the claim fails the second criteria of direct service connection, namely, an in-service incident, illness or injury to which the present disability may be etiologically linked. Finally, to the extent that diabetes mellitus, type II, may be presumptively service connected as a chronic disease, the record is silent as to any evidence indicating that the condition was diagnosed within one year of separation from service, the applicable presumptive period for that disability. As such, service connection must be denied for that disability on that presumptive basis as well. In sum, the Veteran did not suffer an in-service incident or illness to which his present disability may be linked and was not exposed to herbicides during active service. 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 Daniel Ballinger, Associate Counsel