Citation Nr: 21069288 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-48 571 DATE: November 18, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (DMII), to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for kidney stones is remanded. FINDING OF FACT 1. The preponderance of the evidence shows that the Veteran did not have corroborated service in Vietnam during the Vietnam era, and was not exposed to herbicide agents, including Agent Orange, during his service. 2. The Veteran's diagnosis of DMII manifested more than one year after separation from service and is not shown to be causally or etiologically related to an in-service injury or disease, or to be related to exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for DMII have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing in August 2021. Entitlement to service connection for DMII, to include as due to herbicide exposure. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence showing: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a presumptive basis for diseases enumerated in 38 C.F.R. § 3.309(e) for veterans who were exposed to certain herbicide agents during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran contends that his DMII is related to his military service, including due to his exposure to herbicides during active service. The record indicates that the Veteran was diagnosed with DMII in 2009 or 2010. This is reflected in multiple VA treatment records indicating diagnosis, treatment, and associated medications. Moreover, DMII is a disease enumerated in 38 C.F.R. § 3.309(e) for presumptive service connection due to herbicide exposure. Turning to the Veteran's claimed service in Vietnam, VA has been unable to substantiate the Veteran's claim that he served in Vietnam. In a statement submitted to VA in December 2016, the Veteran asserted that he served in Vietnam when he volunteered "for special assignments for an opportunity for early out" of service. He further stated that he was under the direction of the Central Intelligence Agency (CIA) to carry out missions in North Vietnam, Laos, Cambodia, and South China, including counterinsurgency surveillance, search and rescue missions, and discovery of enemy supply routes and prisoner of war (POW) camps. The Veteran further testified before the Board in August 2021 that he while stationed in Long Beach, California, he was deployed to Vietnam, Cam Rahn Bay, and Nha Trang, Laprang, Phulpia, and Haiphong Harbor. He stated that he agreed to 3-4 month long missions directed by the CIA, which informed him upon completion of the missions he would be discharged fully from his military obligations. A detailed review of the Veteran's military personnel records (MPRs) confirm he was stationed in Long Beach, California. However, the MPRs do not show service in Vietnam. In addition, searches conducted by the RO into the Veteran's military records also show that no evidence could be found regarding the Veteran's deployment or overseas missions in Vietnam. The Veteran's MPRs also note he was discharged from service due to medical reasons in January 1969. The Veteran's wife submitted a lay statement in December 2018 regarding the Veteran informing her of these "secret missions" in Vietnam. During the Board hearing, the Veteran's representative testified that due to the "sealed" status of these records, they are not available to verify the Veteran's service in Vietnam. The Board has reviewed and considered the Veteran's military occupational specialty (MOS), MPRs and other service records, as well as the lay statements of record and finds that the preponderance of the evidence is against concluding that there was service in Vietnam. The Board acknowledges the Veteran's statements regarding his service. However, the documents of record do not establish that the Veteran served in Vietnam or was exposed to herbicide agents while in service. He is, therefore, not entitled to the presumption of herbicide agent exposure in this instance. Per Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), the Board has considered a direct service connection theory as well. In this case, the Veteran's service treatment records do not reflect complaints or treatment related to DMII, nor is there any indication or symptoms of DMII while the Veteran was in service. The record is also silent with respect to him being seen for exposure to toxic or chemical agents. Post-service evidence does not reflect complaints or treatment related to DMII until several decades after service. The Veteran was not diagnosed with DMII until 2009 or 2010, decades after his discharge from active service. The evidence also does not show, nor does the Veteran allege, that he continuously manifested symptoms related to DMII after service. The Board finds that service connection for DMII on a direct basis is not warranted. The Board notes that the Veteran has not been provided a VA examination regarding his DMII, but VA's duty to provide a medical opinion is not triggered in this case because the only indication of a nexus between the claimed disability and service is a general conclusory lay statement by the Veteran. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). There is no competent medical evidence indicating a possible link of his DMII with service, nor has service in Vietnam been verified. While the Veteran believes his disability is related to service, his lay opinion lacks probative value, as he has not been shown to possess the requisite medical training or credentials to address such a complicated medical matter. The same holds true of his wife. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as no in-service exposure to herbicide agents has been shown, and the Veteran's DMII is not shown to be causally related to any in-service disease, or injury, service connection for DMII is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for kidney disease is remanded. 2. Entitlement to service connection for kidney stones is remanded. In this case, the Veteran asserts that his kidney disease and kidney stones are related to service and had an onset during or shortly after service. The Veteran and his wife testified before the Board in August 2021 that the Veteran began having kidney issues right after his discharge from service, had to have several cysts removed from his kidneys, and developed kidney stones. A Kidney Conditions Disability Benefits Questionnaire (DBQ) submitted in September 2016 shows the Veteran has nephrolithiasis with an onset or diagnosis date of "1960s" indicating a possible onset during service. However, the DBQ did not provide a nexus opinion with a rationale. In addition, the Veteran should be afforded an opportunity to submit private treatment records of his kidney conditions. As such, the RO should make efforts to have the Veteran execute the proper forms for VA to obtain these records, or an opportunity for the Veteran to submit these records himself. The Board further notes that the Veteran has not been afforded a VA examination or opinion for kidney conditions. Given the above, the Board finds there is insufficient information to make a decision on the claim and that the low threshold for a VA examination, in order to obtain a medical opinion, has been met in this case. See 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information needed to develop the evidence related to his reported kidney conditions and treatments thereof. If he identifies VA treatment providers, then undertake the development of the file in that regard. If he identifies a private treatment provider, then ask the Veteran to complete a VA Form 21-4142 for the healthcare provider and, if authorization is received, make two requests for the authorized records from the identified provider, unless it is clear after the first request that a second request would be futile. Also, give the Veteran an opportunity to submit copies of any treatment records he has in his possession relating to his kidney conditions. 2. Schedule the Veteran for a VA examination (or examinations, if warranted) with an appropriate clinician to determine whether any current kidney conditions are related to active service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. For any kidney disorder identified (both disease and kidney stones, if shown), the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) due to an in-service injury, event, or disease, or is otherwise related to the Veteran's service. The examiner should address the lay statements, Board hearing testimony, and any other pertinent evidence of record, including the Kidney Conditions DBQ submitted in September 2016 that indicated a diagnosis or onset date of "1960s." All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.