Citation Nr: 21002088 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-01 663 DATE: January 12, 2021 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to Agent Orange exposure, is denied. REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a right elbow condition is remanded. FINDING OF FACT The Veteran was not exposed to herbicides during service, and the probative evidence of the record demonstrates that the Veteran’s diabetes mellitus did not originate in service, or for many years thereafter, and has not been shown to be otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for type II diabetes mellitus, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1970 to March 1973 with additional periods of active duty for training from March 1973 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in May 2019, it was remanded for additional development. Specifically, the RO was instructed to obtain any SSA records and attempt to verify the Veteran’s asserted herbicide exposure. A February 2020 letter was obtained indicating there were no outstanding SSA records, and the appropriate steps were taken to verify the Veteran’s claimed exposure. As such, the Board finds that the AOJ substantially complied with the directives in the May 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 Service Connection—Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disorders, such as diabetes or organic disease of the nervous system, when manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, 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 DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to show that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. Atherosclerotic cardiovascular disease, diabetes, and early onset peripheral neuropathy (with an onset within one year of exposure) are among the diseases specified. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that his diabetes is due to herbicide exposure while serving in the Republic of Korea. The Board briefly observes that the Veteran’s service treatment records (STRs) do not show any treatment for or diagnosis of diabetes during service. The Veteran’s diabetes was not diagnosed within a year of his leaving active duty service. Therefore, the central issue that must be resolved is whether the Veteran was exposed to herbicides in Korea. Herbicide exposure is presumed for veterans of certain units that served in or near the Korean DMZ anytime between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected, even though there is no record of such disease during service, provided further the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e). The record reflects that the Veteran served in Korea from January 1972 to March 1973 as a food service specialist. The RO submitted an inquiry to the Joint Services Records Research Center (JSRRC) to determine if the Veteran's unit was exposed to Agent Orange while on active duty. The JSRRC noted in a May 2015 memorandum that the Veteran’s exposure to herbicides could not be conducted, as the Veteran did not submit the required information for verification of exposure to herbicides. The Veteran then submitted internet articles documenting the use of herbicides at the DMZ and the Board in a May 2019 decision remanded the Veteran’s claim for further development regarding his potential exposure to herbicides in service. The VA issued a formal finding regarding the Veteran’s claimed herbicide exposure in March 2020. In the formal finding, it was noted that the Veteran’s entire personnel file was requested through the National Personnel Records Center (NPRC) and the evidence of the record indicates that the Veteran was stationed in Korea from January 1972 to March 1973, assigned to the 44th Engineering Battalion Company B with the MOS of 94B20 Cook. The Veteran was at Chinhae Base Camp, on or about January 1973, which was on the southeast tip of the peninsula, nowhere near the DMZ. Additionally, the Veteran’s service records show no indication that he ever served at, or visited, the DMZ. The formal finding also indicates that the Veteran’s unit was not identified as one of the units that served at the DMZ during the applicable presumptive period. Further, the formal finding indicates that the Veteran’s service in Korea itself falls outside of the statutory presumptive period. As the Veteran was not assigned to one of the units determined by the DoD to have served in an area where herbicides were used; and as there is no supporting evidence that the Veteran was stationed near the DMZ, worked in the DMZ, or was even in Korea during the applicable presumptive period, the Board must conclude that the Veteran was not exposed to herbicides during his active duty. As noted above, the Veteran's service treatment records do not contain any evidence of treatment, diagnosis or finding consistent with diabetes. And the Veteran’s medical treatment records show that the Veteran was not diagnosed with diabetes until multiple years after his separation from service. Thus, his diabetes mellitus was not shown in service nor within one year following discharge from service; direct service connection is not warranted. Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of service connection for diabetes mellitus on a direct or presumptive basis. Thus, the claim for service connection for this disability is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Prostate Cancer and Right Elbow To date, the Veteran has not been afforded VA examinations to address the etiology of his claimed prostate cancer and right elbow disabilities. The Board finds that examinations and medical opinions are necessary to determine if the Veteran’s claimed conditions were caused or aggravated by his military service. The Veteran’s STRs contain complaints of, and treatment for, a right elbow injury during active duty service. Additionally, the Veteran’s STRs contain treatment notes for prostatitis. The Board also notes that the Veteran’s VA treatment records reflect that he has a current diagnosis of chronic elbow pain and prostate cancer. Based on the foregoing, the Board finds examinations and medical opinions are necessary to determine whether the Veteran’s claimed conditions were caused, or aggravated, by his active military service. The matters are REMANDED for the following action: Afford the Veteran VA examinations by an examiner(s) with sufficient expertise to address the etiology of the Veteran’s claimed right elbow and prostate cancer conditions. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service or are otherwise etiologically related to his active service. Additionally, for the Veteran’s claimed right elbow condition, the examiner is instructed that pain alone can be a disorder for VA compensation purposes if the pain results in functional impairment, even if there is no identified underlying diagnosis. Therefore, the examiner should provide an etiological opinion as to whether or not the Veteran’s pain causes functional limitation, and if so, if the pain is at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran’s period of service. For purposes of these opinions, the examiner(s) should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. The examiner(s) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. (Continued on the next page) If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.