Citation Nr: 21065413 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 13-26 977 DATE: October 26, 2021 ORDER Service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, or in or near the Korean demilitarized zone (DMZ) between September 1, 1967, and August 31, 1971, and, thus, he is not presumed to have been exposed to herbicide agents. 2. The evidence of record does not competently and credibly establish that the Veteran was otherwise exposed to herbicide agents as defined by VA regulations during his military service. 3. Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2018 and October 2019, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 11101; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as diabetes mellitus, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). As relevant to the instant case, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between September 1, 1967, and August 31, 1971, are presumed to have been exposed to herbicide agents. 38 U.S.C. §§ 1116, 1116B; 38 C.F.R. § 3.30 (a)(6). For those veterans who have been exposed to herbicide agents, certain diseases, to include diabetes mellitus, type II, are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). In this regard, such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). 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). As an initial matter, the Board notes that the record reflects that the Veteran has a current diagnosis of diabetes mellitus, type II. See July 21, 2012, letter from the Veteran's treating physician; VA and private treatment records. As pertinent to the Veteran's alleged in-service exposure to herbicide agents, he reported that he was sent to Vietnam in November or December 1965 and, once he arrived, he was told that there had been a mix-up in his orders and remained at a holding station in Saigon, Vietnam, for approximately 35 days before being sent to Korea. In support of his claim, the Veteran submitted a buddy statement from D.V., who indicated that he served with the Veteran in Korea from March 1966 to April 1967, and recalled that the Veteran had arrived from Vietnam in approximately January 1966. He further submitted two family members' names who he contends were stationed in Vietnam during the same reported time period. However, the record does not support the Veteran's contention that he served in Vietnam. Specifically, his DD Form 214 and service personnel records do not reflect that he was awarded any decoration indicative of support of the mission in Vietnam, or show service in Vietnam. Additionally, in a July 2012 Memorandum, the RO made a formal finding as to the inability to verify the Veteran's claimed in-country Vietnam service. The Military Records Specialist who drafted such Memorandum noted that the National Personnel Records Center indicated that, "there is no evidence in this [V]eteran's file to substantiate any service in the Republic of Vietnam" and no records of in-country Vietnam service or exposure to Agent Orange, in response to the inquiries regarding the Veteran's service in Vietnam and/or Temporary Vietnam Duty/Visitation. The Board acknowledges that the Veteran reported that some of his service records were destroyed in a fire at Ft. Polk, thereby erasing evidence that he went to Vietnam. However, a Military Records Specialist at the National Personnel Records Center investigated the claim and concluded that the Veteran traveled directly to Korea without stopping in Vietnam. Furthermore, as relevant to D.V.'s statement that the Veteran arrived in Korea by way of Vietnam, such reflects that he arrived in Korea after the Veteran and, thus, such statement is based solely on the Veteran's uncorroborated report. Furthermore, the record reflects that he traveled directly to Korea in December 1965 where he remained until January 1967 with Company C, 2nd Battalion, 31st Infantry, 7th Infantry Division. Thus, based on the foregoing, the Board finds the Veteran's report that he set in Vietnam on his way to Korea to be not credible as it is directly contradicted by contemporaneous official records. Nonetheless, the Veteran subsequently reported that, upon his arrival in Korea, he served along the DMZ and was exposed to herbicide agents coincident with such service. Specifically, he indicated that he performed patrol duty on the DMZ coincident with his military occupational specialty of Light Weapons Infantryman. While the Veteran served in a unit acknowledged by the Department of Defense as operating in the Korean DMZ, such was outside of the recognized time period allowing presumptive service connection as it concluded prior to September 1, 1967. Nevertheless, in light of such service, the Board attempted to verify the Veteran's reported in-service exposure to herbicide agents while he was stationed in Korea from December 1965 to January 1967. In July 2021, a professional researcher from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center, had completed comprehensive research regarding the Veteran's claimed herbicide agent exposure. In this regard, the 1965 and 1966 unit history of the 2nd Battalion, 31st Infantry had been reviewed and showed that there was no evidence in the battalion records to support the Veteran's claim of exposure to herbicide agents on or near the DMZ or as a result of any other duties performed while stationed in Korea in 1965 and 1966. Furthermore, he is not competent to identify any particular chemicals to which he was exposed during his military service. Consequently, the Board finds that, while the Veteran served along the DMZ while stationed in Korea from December 1965 to January 1967, the probative value of his reports of in-service exposure to herbicide agents coincident with such service are outweighed by the official reports regarding the use of herbicide agents along the Korean DMZ as codified in VA regulations and the unit histories from 1965 and 1966. Thus, the Board finds that the evidence of record does not competently and credibly establish that the Veteran was exposed to herbicide agents as defined by VA regulations during his military service. As a final matter, the Board notes that the record does not show, that the Veteran first manifested diabetes mellitus, type II, during service or within one year of his discharge from service, or that such is otherwise related to service on a direct basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to considered "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). While the Veteran explained at the September 2016 Board hearing that he believes his diabetes is solely due to herbicide agent exposure, he has also stated that such had its onset immediately following separation from service. Specifically, the Veteran reported that he was told after he returned from Korea that he was borderline diabetic; however, the record clearly shows that he was diagnosed with diabetes mellitus, type II, over 40 years after his separation from service. In this regard, while the AOJ made a formal finding that VA treatment records dated prior to 1993 are unavailable, the Veteran's VA and private treatment records since that time clearly show that his glucose was monitored for many years without findings that supported a diagnosis of diabetes mellitus, type II. In this regard, the Veteran's treating physician explained in a July 2012 letter that, while the Veteran was pre-diabetic for one year beginning in 2009, or possibly a little longer, his A1C readings only warranted an actual diagnosis of diabetes mellitus, type II, as of July 22, 2010. Thus, service connection for such disorder on a direct or presumptive basis based on a chronic disease is not warranted. Based on the foregoing, the Board finds that service connection for diabetes mellitus, type II, is not warranted. In reaching this decision, 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 and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.