Citation Nr: 21067742 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-30 685 DATE: November 5, 2021 ORDER Entitlement to service connection for type 2 diabetes mellitus, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. There is no probative evidence that the Veteran served in an area in which exposure to herbicide agents may be presumed; and there is no probative evidence showing that he was exposed to herbicide agents in service. 2. The Veteran's currently diagnosed type 2 diabetes mellitus was not manifest during service or for many years thereafter, and the competent and credible evidence fails to establish etiological relationship between this disability and his service. CONCLUSION OF LAW Type 2 diabetes mellitus was not incurred in or aggravated by service and may not be presumed related to service. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1971 to July 1975. This matter is on appeal from a February 2014 rating decision. After the hearing, the record was held open for an additional 90 days for the Veteran or his representative to submit additional evidence. However, to date no additional evidence has been associated with the claims file. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, certain diseases, such as diabetes mellitus, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Herbicide agent exposure The Veteran contends that he has type 2 diabetes mellitus related to herbicide agent exposure when civil engineering came to spray around them when they were staying in tents at Takhli Royal Thai Air Force Base (RTAFB) in Thailand. See Hearing Transcript p.3. The Veteran also stated that he was exposed to herbicide agent when he was on TDY for 5 months at Takhli RTAFB. See October 2013 statement. He further contends that he was deployed there from May 1972 to October 1972. See November 2016 statement. If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307 (a)(6), (d), 3.309(e). Notwithstanding the foregoing presumptions, a Veteran is not precluded from establishing service connection due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). VA has extended the presumption of service connection for diseases listed under 3.309(e) to Veterans who served in Korea in or near the demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, or in Thailand at certain designated bases and whose duties placed him on or near the perimeter of the base, where Agent Orange was sprayed. 38 C.F.R. § 3.307 (a)(6)(iv); see also Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea, 3 (May 2010). However, in a February 2014 Formal Finding the RO determined that the information required to corroborate the Veteran's claimed herbicide agent exposure was insufficient to send the U.S. Department of Army, Records Management and Declassification Agency (RMDA) (formerly the Joint Services Records Research Center (JSRRC)). The RO also noted that the service personnel records and TDY orders show that the Veteran was in Guam. In an October 2014 statement, the Veteran contended that he was exposed to vapors as well as sprays used on "high snake-infested grass" as a fuel specialist. In a November 2016 statement, the Veteran contended that he was deployed to Thailand to re-open the Takhli RTAFB in May 1972 where he had to live in tents for the first 45 to 60 days where overgrowth was regularly sprayed to address pests, snakes, and possible insurgency. He explained that he was unable to secure a copy of his TDY orders. He cited a report from the Department of Defense (DOD) which states that Vietnam-era Veterans, whose service involved duty on or near the perimeters of military bases in Thailand anytime between February 28, 1961 to May 7, 1975, may have been exposed to herbicides. The Veteran stated that he was unable to obtain a copy of his TDY orders and cited involvement in Project CHECO (Contemporary Historical Examination of Current Operations). He also submitted articles regarding the use of herbicide agents on Thailand military bases. However, in July 2021 the Veteran testified that he did not know whether Agent Orange was used during his service. The record includes a "Memorandum for the Record" on herbicide use in Thailand during the Vietnam Era which states that the Department of Defense (DoD) reported that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, and specifically identified that location as the Pranburi Military Reservation. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, the Veteran's service personnel records indicate a military occupational specialty of fuel specialist and do not indicate service in Thailand. As such, it cannot be presumed that he was exposed to tactical herbicides. Accordingly, based on a detailed review of the record, the Board must find that the evidence, overall, provides evidence against the evidence against the Veteran's claim of herbicide agent exposure. Accordingly, based on a detailed review of the record, the Board must find that the evidence, overall, provides evidence against the evidence against the Veteran's claim of service in Thailand or herbicide agent exposure during his service. Accordingly, service connection for type 2 diabetes mellitus is therefore not available on this basis. See 38 C.F.R. §§ 3.307, 3.309. However, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee, supra. Type 2 diabetes mellitus As previously stated, the Veteran contends that he has type 2 diabetes mellitus that is related to his service. Turning to the evidence of record, the Veteran's service treatment records (STRs) are void of findings, complaints, symptoms, or diagnosis of diabetes mellitus. Post-service, VA treatment records indicate a history of diabetes mellitus since September 2013. The Board acknowledges that some of the VA treatment records, including a November 2013 report, indicate a history of herbicide agent exposure. However, to the extent that the Veteran's herbicide agent exposure came from the Veteran's report, those facts are unsupported by the objective evidence of record. Accordingly, any treatment records indicating a history of herbicide agent exposure carry little probative weight. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board finds that the claim must be denied. There is no competent medical evidence to show that the Veteran has had any diagnosed type 2 diabetes mellitus that is related to his service. Moreover, post-service, the record does not reflect or reference any history of type 2 diabetes mellitus until decades after discharge from active service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). The Board finds in this case that the lack of evidence of type 2 diabetes mellitus during service coupled with the fact that a diagnosis of type 2 diabetes mellitus was not made until over three decades post-service, is sufficient to rebut a finding of service incurrence. In this case, the earliest post-service medical evidence of the Veteran's type 2 diabetes mellitus was in September 2013 which is over 38 years after service. This long period without problems weighs against the claim. Moreover, the Board finds that the Veteran's statements relating his type 2 diabetes mellitus to his service are not credible and are afforded no probative value. His contentions conflict with the absence of treatment evidence for over three decades after service and absence of any evidence of herbicide agent exposure. Moreover, the Veteran testified that he did not know whether herbicide agent was used during his service. Finally, there is no competent medical evidence that the Veteran has type 2 diabetes mellitus that is related to his service. Additional considerations (Continued on the next page) The Board has taken the contention that the Veteran has type 2 diabetes mellitus that was caused by service, seriously. Although the Veteran might believe that his type 2 diabetes mellitus is related to etiologically related to his service, the Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his type 2 diabetes mellitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of type 2 diabetes mellitus, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above, the Board finds that the weight of the probative evidence is against a finding that the Veteran has type 2 diabetes mellitus that is related to his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.