Citation Nr: 21061433 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-42 042 DATE: October 4, 2021 ORDER Service connection for diabetes mellitus, type 2 is denied. Service connection for hypertension is denied. Service connection for kidney failure is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during his active duty service. 2. The Veteran's diabetes mellitus, type 2, initially manifested many years after separation from service and is not shown to be etiologically related to service. 3. The Veteran's hypertension initially manifested many years after separation from service and is not shown to be etiologically related to service. 4. The Veteran's kidney failure initially manifested many years after separation from service and is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. Diabetes mellitus, type 2 was not incurred in or aggravated by service and may not be presumed to have been incurred in or as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 2. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred in or as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. Kidney failure not incurred in or aggravated by service and may not be presumed to have been incurred in or as a result of service. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from February 1970 to July 1982. The Veteran and his spouse testified before the undersigned Veterans Law Judge during a June 2021 hearing and a transcript is of record. These matters are on appeal from a May 2014 rating decision. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Diabetes mellitus, type 2 2. Hypertension 3. Kidney failure The Veteran has current diagnoses of diabetes mellitus, type 2, hypertension, and chronic kidney disease. He contends that these disabilities are due to exposure to herbicides during his active duty service. The Veteran's representative also contended during the June 2021 hearing that his diabetes mellitus caused or aggravated his hypertension and kidney disease. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of diabetes mellitus or hypertension to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). During the June 2021 hearing, the Veteran testified that none of the disabilities on appeal had their onset during his active duty service or within one year after separation. Therefore, presumptive service connection is not warranted for diabetes mellitus or hypertension under 38 C.F.R. § 3.309(a). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. The list of those diseases includes diabetes mellitus, type II. 38 C.F.R. § 3.309(e). Whether the Veteran did or did not serve in the Republic of Vietnam during that period, the Vietnam Era is defined as ending on May 7, 1975. 38 C.F.R. § 3.2 (2021). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. The record does not indicate, and the Veteran does not contend, that he ever served in the Republic of Vietnam. Instead, the Veteran reports, and the record indicates, that he served at Korat Royal Thai Air Force Base; he contends that he was exposed to herbicides during his service in Thailand. The Veteran's service personnel records note service at Korat Royal Thai Air Force Base from June 1975 to February 1976, which is after the Vietnam Era. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In this case, the M21-1 suggests conceding herbicide exposure on a direct/facts-found basis if a veteran served in the Air Force at Korat during the Vietnam Era and there is credible evidence of service near the air base perimeter. See M21-1 IV.ii.1.H.5.b. The Compensation Service's findings as to where and when herbicides were used at Korat are highly probative and the Board accepts them as appropriate guidance. The Veteran reports, and his personnel records indicate, that he served as a freight traffic specialist, processing and distributing incoming cargo. In his June 2021 hearing before the undersigned Veterans Law Judge and his December 2016 hearing before a Decision Review Officer (DRO), the Veteran and his spouse reported that he frequently crossed the perimeter for multiple reasons: the ammunition depot was outside of the base, he lived outside of the base after his first month, he often had dinner outside of the base, and the quickest way to travel around the base was to use the perimeter road. He also reported that crossing the perimeter required exiting his vehicle and that his duties placed him on the airfield every day. In his August 2017 substantive appeal (VA Form 9), the Veteran also reported that he "loaded and unloaded barrels of AO off the aircraft that sprayed the herbicide into the jungles of Vietnam as well as contaminated equipment from these aircrafts." Because the Veteran's service in Thailand was after the end of the Vietnam Era, the Compensation Service's guidance regarding service near the air base perimeter is not applicable. The Veteran must therefore establish actual exposure by other means. Because he has professed no specialized ability to detect herbicide agents in the environment, outside of labeled containers, his assertions of exposure by service on the airfield or near the base perimeter are essentially speculative. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). He has not contended that the barrels he reports unloading from aircraft were labeled as containing Agent Orange or any other herbicide agent. In addition, the Board notes that the last US combat troops left Vietnam in March 1973 and that the final evacuation of American personnel from Saigon took place in April 1975, both of which were prior to the beginning of the Veteran's service in Thailand. His lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred. For all of the above reasons, the Board finds that it is less likely than not that the Veteran was exposed to herbicides during his active duty service. In addition, the record does not reflect, and the Veteran does not contend, that diabetes mellitus, hypertension, or kidney failure had their onset in service or that diabetes mellitus or hypertension had their onset within one year thereafter. The Veteran's service treatment records do not reflect any complaint or diagnosis of those disabilities or any relevant symptoms and, although the dates of the initial diagnoses are not clear, there is nothing to indicate that they were in 1982 or 1983 or for decades thereafter. The only bases the Veteran has raised for service connection for diabetes mellitus, type 2, hypertension, and kidney failure are exposure to herbicides and secondary causation of hypertension and kidney failure by diabetes. The Board has found that the Veteran was not exposed to herbicides. The Veteran has not contended that any other injury or illness in service could have caused these disabilities and the Board has found no evidence of onset in service or within several decades thereafter to establish direct service connection. Because the Veteran's diabetes is not service-connected, service connection of hypertension or kidney failure on a secondary basis is impossible. (Continued on the next page) Because the preponderance of the evidence is thus against finding that the Veteran's diabetes, hypertension, or kidney failure are etiologically related to his active duty service, entitlement to service connection for diabetes mellitus, type 2, hypertension, and kidney failure is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.