Citation Nr: 21069282 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-54 756 DATE: November 18, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam War era, and the evidence does not demonstrate that he was exposed to Agent Orange or other herbicide agents during his period of service. 2. Diabetes mellitus was not shown in service or within the first post-service year, and no probative and competent evidence has been received which relates diabetes mellitus to the Veteran's period of active service. CONCLUSION OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service, and such may not be presumed to have been so incurred, including as secondary to herbicide agent exposure. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty service in the United States Army from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2021 Board Hearing. The claim was remanded by the Board in January 2021 and in September 2021. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be presumed for certain chronic diseases, including diabetes mellitus, if it manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, Veterans are presumed to have been exposed to dioxin-based chemical herbicides if the facts establish that their service was within the territorial confines of the Republic of Vietnam during the Vietnam War Era, or otherwise involved duty or visitation in the Republic of Vietnam. Such service must be either "foot-on-ground" service or service on the inland waterways in the interior of the Republic of Vietnam ("brown water service"). See 38 C.F.R. § 3.307 (a)(6)(iii) (2017); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. If exposure to chemical herbicides is established, certain diseases, including diabetes mellitus, are presumed to be due to chemical herbicide exposure. 38 C.F.R. § 3.309 (e) (2019). In May 2010, VA published a "Compensation & Pension (C&P) Service Bulletin" which establishes "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010); 2015 WL 65578 (Jan. 6, 2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.§ 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. The Veteran contends that his diabetes mellitus was caused by his exposure to Agent Orange in service and alternatively, is related to his in-service weight gain. The Board notes at the outset that VA treatment records show that the Veteran has a diagnosis of diabetes mellitus during the appeal period. However, for the following reasons, the claim for entitlement to service connection for diabetes mellitus must be denied. First, an October 2021 VA examination report indicates that the Veteran was first diagnosed with diabetes mellitus in approximately 2006, which is decades after the Veteran left active duty service. Therefore, service connection may not be granted on a presumptive basis as the disability was not considered chronic within a year of the Veteran's separation from service, despite it being a chronic disease. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Second, as to the Veteran's claimed exposure to Agent Orange during service, the evidence is against such a conclusion. As discussed in the September 2021 Board remand, the Veteran had contended that he was exposed to herbicides while he was stationed at Fort Bliss in Texas from February 5, 1967 to August 23, 1968. However, after factual development on the alleged herbicide exposure was completed, the Board concluded that exposure to Agent Orange is not confirmed by the record. See September 2021 Board remand. Without evidence that the Veteran was exposed to Agent Orange or any other qualifying herbicide agents as specified at 38 C.F.R. § 3.307 (a)(6)(i), service connection for diabetes mellitus will not be considered on a presumptive basis with respect to Agent Orange or other herbicide agents. See 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307, 3.309. Finally, the Board finds that because there is insufficient evidence to establish that the Veteran's diabetes mellitus was incurred in or aggravated by active service, service connection must be denied on a direct basis as well. See also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (if VA finds a Veteran not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine whether service connection can be established on a direct basis). While the Veteran has a current diagnosis of diabetes, there is no evidence that the Veteran was exposed to Agent Orange or any qualifying herbicide agents during service. Moreover, the service treatment records lack a diagnosis of diabetes mellitus, or any medical complaints that could be construed as related to such. However, the service treatment records show that the Veteran gained weight during service. Thus, the second element of service connection is established. However, the claim must still be denied because there is insufficient evidence to establish a nexus, the third element of service connection. Here, in an August 2021 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's diabetes was incurred in service because there was no evidence of diabetes while in service or at separation, and the Veteran was not diagnosed with diabetes until 2006. Moreover, in an October 2021 VA opinion, the examiner opined that the Veteran's diabetes is less likely than not related to his in-service weight gain. The Board finds these opinions persuasive because in forming these opinions, the August 2021 VA examiner and the October 2021 VA examiner both properly and thoroughly considered the lay statements and medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges the June 2014 private medical opinion, in which Dr. P. W. states that the Veteran's in-service weight gain may have contributed to the Veteran's diabetes diagnosis. However, Dr. P. W. provided zero rationale for this opinion. Thus, the Board gives more probative weight to the August 2021 and October 2021 VA opinions because they provide explanations that contains clear conclusions and supporting data and do not contain internal inconsistencies. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran himself believes that there is a nexus between diabetes mellitus and service, as a lay person, he is not competent to opine on matters requiring medical expertise, such as the etiology of diabetes mellitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The record does not demonstrate that the Veteran has special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (2012). Alternatively, a nexus can also be established through continuity of symptomatology for chronic conditions listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Continuity of symptomatology is established if (1) a chronic condition was "noted" during service, (2) there are post-service manifestations of the same symptomatology, and (3) medical or, sometimes, lay evidence shows a nexus between the present disability and post-service symptomatology. Id. A condition is "noted" in service where evidence is "indicative of but not dispositive of a chronic disease." Walker, 708 F.3d at 1340. Here, diabetes mellitus was not noted in service, where there is no evidence indicative of diabetes mellitus in service. In fact, upon separation the Veteran's separation examination reflects that the Veteran did not have diabetes mellitus. In fact, the Veteran's diabetes mellitus was not diagnosed until many decades since the Veteran left service. Furthermore, the record has a competent October 2021 VA opinion, in which the examiner persuasively opined that the Veteran's diabetes is less likely than not related to his in-service weight gain. Given such, the Board does not find that continuity of symptomatology has been established, without evidence of symptoms of diabetes mellitus from the time the Veteran separated from service. In sum, there is no competent medical evidence that establishes a causal connection between the Veteran's diabetes mellitus disorder and his period of military service. Such evidentiary deficiency concerning the nexus element is fatal to the claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service). For the foregoing reasons, the claim for service connection for diabetes mellitus must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.