Citation Nr: 21068568 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-40 869A DATE: November 10, 2021 ORDER Service connection for diabetes mellitus, type II, including as due to herbicide exposure, is denied. Service connection for left lower extremity peripheral neuropathy, including as due to herbicide exposure, is denied Service connection for right lower extremity peripheral neuropathy, including as due to herbicide exposure, is denied FINDINGS OF FACT 1. The Veteran's personnel records reveal service in Korea from March 1968 to July 1969 detailed as a supply specialist with the Battery 6th Battalion HAWK 44th Artillery. 2. The Veteran did not serve in a unit stationed in the Korean Demilitarized Zone (DMZ) during the period from April 1, 1968 and August 31, 1971; thus, there is no presumption that he was exposed to herbicides (including Agent Orange) while serving on active duty. 3. The Veteran's diabetes mellitus, type II was first shown many years after active service and therefore did not begin during service and is not otherwise related to an in-service injury or disease, including herbicide exposure. 4. The Veteran's peripheral neuropathy of the bilateral lower extremities was first shown many years after active service and therefore did not begin during service and is not otherwise related to an in-service injury or disease, including herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in December 2018 where the issue of service connection for diabetes mellitus, type II, was reopened and remanded for development; the issues for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities were also remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain specified diseases will be presumed service-connected due to herbicide exposure during service, if they manifest to a compensable degree at any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). For purposes of establishing service connection for a disability resulting from exposure to certain herbicide agents, such as Agent Orange, 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 (DOD), 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 establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for left lower extremity peripheral neuropathy. 3. Entitlement to service connection for right lower extremity peripheral neuropathy. The Veteran asserts entitlement to service connection for the claimed disabilities of diabetes mellitus, type II, and peripheral neuropathy of the lower extremities due to herbicide exposure while stationed in Korea. Specifically, the Veteran contends he was "close to the DMZ" and exposed to herbicide agents while performing duties as a supply specialist. See Statements in Support of Claim (VA Form 21-4138) dated June 2015. Alternatively, the Veteran seeks service connection for peripheral neuropathy of the lower extremities as secondary to his diabetes. At the outset, the Board notes that the Veteran does not contend visitation to the Republic of Vietnam. As for exposure to herbicides including Agent Orange while in serving in Korea, the Board finds there is no evidence to support any actual, direct exposure to herbicides in service. In so finding, the Board relies on the development accomplished by the AOJ in compliance with the Board's December 2018 remand. The record shows a response from Joint Records Research Center (JRRC) obtained in August 2021 stating, A professional researcher from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center, has completed comprehensive research on the Veteran's claimed exposure incident/event, claiming herbicide exposure while serving with the 6th Battalion, (Hawk) 44th Artillery from August 1698 to June 1969 and performing a TDY to Camp Casey in August 1968. The following sources were reviewed in an attempt to substantiate the Veteran's claimed incident/event. We researched the 1968 - 1969 unit histories submitted by the 6th Battalion, (Hawk) 44th Artillery and the 1968-1969 chronologies submitted by the 8th United States Army. The histories document that the 6th Battalion, 44th Artillery was located at Reno Hill, South Korea. The Brigade was made up of one Hercules Battalion and four Hawk Battalions. The units were dispersed from Chunchon, near the DMZ, to Kunsan. The 6th Battalion, (Hawk) 44th Artillery had the mission of providing active low altitude air defense along the western coast of the Republic of South Korea. In addition, they do not mention or document any specific duties performed by the 6th Battalion, 44th Artillery unit members along the Demilitarized Zone (DMZ). In conclusion, no evidence was located to support documentation of the claimed incident/event. As demonstrated above, the official record does not show that the Veteran served in a unit stationed along the Korean DMZ or that his duties placed him in areas along the DMZ. Thus, he cannot be presumed to have been exposed to herbicides. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Meaning, the Board must still consider whether the Veteran's diabetes is directly related to service. Here, the record is clear that the Veteran's diabetes was not diagnosed until many years after service, approximately 29 years after discharge. In fact, during a VA examination in April 2003 the Veteran reported that he was "diagnosed between 1998 and 1999 by a private family physician". The record also shows a letter from the Veteran's treating physician dated April 2003 confirming a "history of diabetes mellitus" and that he was currently treated for the condition. See Records from Dr. J.A.M. dated April 2003. Likewise, the earliest medical notation of peripheral neuropathy of the lower extremities are identified many years after his period of active duty service. The Veteran's VA treatment indicates that the Veteran was diagnosed in April 2008 for diabetic neuropathy, which is approximately until June 1998, approximately 39 years after separation from service. See VA treatment records. To that end, the Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board further notes that no VA examination or medical opinion was requested in relation to the claim for diabetes mellitus and peripheral neuropathy of the lower extremities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record is absent for any medical or lay evidence that the Veteran's claimed diabetes or peripheral neuropathy of the lower extremities began in service or within a year of discharge or that such are otherwise etiologically related to active service. Absent evidence of an in-service injury or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. As such, VA examination is not necessary. The Board has also considered whether the presumption of service connection has been established under 38 C.F.R. §§ 3.307, 3.309(a). However, as there is no showing of diabetes mellitus in service or to a compensable degree in the year after service, presumptive service connection for in favor of chronic diseases or on the basis of continuity of symptomatology is not warranted. To the extent the Veteran's statements are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. While the Veteran is certainly capable of reporting his symptoms, he is not competent to independently opine as to the specific etiology of a claimed condition or to render a medical diagnosis of a disability manifested by such symptoms, as such requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For this purpose, the Board finds the Veteran's lay statements are not competent medical evidence. Accordingly, the Veteran's assertions as to a relationship between his diabetes mellitus and peripheral neuropathy of the lower extremities diagnosed many years after service, and service are of little probative value, the Board assigns more weight to the objective medical evidence of record. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for diabetes mellitus, Type II, and peripheral neuropathy of the bilateral lower extremities. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claims must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.