Citation Nr: 21073185 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 10-36 233 DATE: December 7, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's diabetes mellitus, type II, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1978 to May 1982 and December 1982 to December 1986. In September 2015, the Board remanded the issue of entitlement to service connection for diabetes mellitus, type II, for additional evidentiary development and in November 2017 the issue was denied by the Board. The Veteran appealed the November 2017 Board decision for this issue to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a partial Joint Motion for Remand (JMR). An Order of the Court dated October 24, 2018 granted the motion and remanded this issue to the Board. The parties agreed that the AOJ did not conduct proper development to determine whether the Veteran was exposed to herbicides because information was not submitted to the Joint Services Records Research Center (JSRRC). In July 2019, the Board remanded this issue pursuant to the partial JMR and in October 2020 the issue was denied by the Board. The Veteran appealed the October 2020 Board decision for this issue to the Court. The parties filed a partial JMR. An Order of the Court dated July 16, 2021 granted the motion and remanded this issue to the Board. In June 2021, the Board remanded multiple issues for additional evidentiary development under this same docket number. Those issues have not yet been returned to the Board for appellate review. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure is denied. For the reasons discussed below, the Board finds that there was substantial compliance with the Board's July 2019 remand directives. The Board also finds that it is not at least as likely as not that the Veteran was exposed to herbicide agents as defined by VA regulations, either due to working on aircraft or due to being stationed at Camp Pendleton, Marine Corps Air Station (MCAS) El Toro, or MCAS Tustin, and that the evidence does not support a finding that exposure to chemicals other than herbicide agents caused the Veteran's diabetes mellitus. In its July 2019 remand, the Board directed the AOJ to send requests to both the JSRRC and the Marine Corps to substantiate whether the Veteran was exposed to an herbicide agent while he was stationed at Camp Pendleton from 1978 to 1980 and at Marine Corps Air Station El Toro or Tustin from November 1978 to February 1979. The Board stated that the determination must be made in a formal finding. In February 2020, the AOJ made a request for information about whether the Veteran was exposed to herbicide agents. His service personnel records were received that showed he worked on CH-53A/D aircraft at Tustin and served at Camp Pendleton for motorcycle training. In May 2020, the AOJ contacted the JSRRC, as directed by the Board remand, even though the JSRRC does not process requests regarding the Marine Corps. Then, the JSRRC coordinator contacted the Marine Corps Archives, which processes requests for the Marine Corps. In June 2020, the AOJ contacted the Marine Corps History Division to request information regarding whether the Veteran was exposed to herbicide agents at Camp Pendleton, El Toro, and Tustin. The AOJ informed the Marine Corps History Division that the Veteran asserted he worked on aircraft that had been in Vietnam and were contaminated with herbicide agents. The Marine Corps History Division provided Command Chronologies for the Veteran's unit. They did not substantiate that the Veteran was exposed to herbicide agents by working with contaminated aircraft or otherwise. In June 2020, the AOJ made a formal finding that there was a lack of information to verify exposure to herbicide agents. The AOJ concluded that all efforts were made to obtain information. The AOJ stated that they performed development with the Marine Corps Archives which researched command histories "...and is similar to the JSRRC, which is for all other branches of the service except Marines." The AOJ noted that command histories were received and that they do not contain proof that the Veteran was exposed to herbicide agents by working on aircraft that had been stationed in Vietnam when herbicides were used. The AOJ explained that the Marine Corps' response also directed them to a JAG website that might contain investigations into the topic. The AOJ continued its development by going to the website, and noted that the website stated that only investigations after June 1995 could be requested to be researched. The AOJ also stated that there was "...no indication that the Veteran ever filed an investigation." The formal finding concluded, "[t]he information of record continues to show no conclusive evidence that the Veteran was exposed to herbicides." In its October 2020 denial, the Board did not address whether there was substantial compliance with the July 2019 remand directives. The parties to the JMPR stated that the formal finding made by the AOJ did not address whether the Veteran worked on contaminated to aircraft known to have sprayed an herbicide agent and that the remand order did not require that the evidence be "conclusive." The Board finds that the AOJ substantially complied with the Board's July 2019 remand directives for three reasons. First, it contacted the appropriate bodies for development and made a formal finding, after noting that all development had been completed and additional development would be futile. It contacted the JSRRC even though it did not process requests regarding the Marine Corps. It then contacted the Marine Corps Archives, which performs the same function but for the Marines. Because the Marine Corps suggested that a JAG website be reviewed in case there was the possibility of researching investigations, the AOJ did so. Second, the AOJ stated in its formal finding that there was no proof that the Veteran "...was exposed to herbicides by working on aircraft that had been stationed in Vietnam when herbicides were used." Thus, the formal finding addressed whether the Veteran was exposed to aircraft known have sprayed herbicide agents. Although the AOJ used the word "proof," which is a higher standard that "at least as likely as not," the materials provided by the Marine Corps do not show that the Veteran worked on aircraft that had been in Vietnam. There is no documentation in the information provided that the Veteran worked on aircraft that had been in Vietnam, and therefore not even the standard of "at least as likely as not" is met. Although the Veteran's attorney later argued in October 2020 that the VA "hints that there may have been a Marine investigation into this matter..." and that "[t]he fact that there was an investigation into the matter suggests that further development is needed as this could substantiate the Veteran's claim," the AOJ noted that there is no indication that the Veteran ever requested an investigation, nor has he so asserted. Additionally, the Veteran's attorney did not state that the Veteran actually filed an investigation. Therefore the AOJ did not need to conduct further investigation regarding an investigation. Third, the parties agreed that the Board did not require that the evidence be "conclusive," which is the wording used in the formal finding. The parties appear to assert that by using the word "conclusive," the AOJ was requiring a higher standard that "at least as likely as not." The Board did not state that conclusive evidence, or any level of certainty or non-certainty was required. The remand stated that the AOJ should "substantiate" any herbicide agent exposure and make a "determination," as to whether he was exposed to herbicide agents via contaminated aircraft, and it did so. The Board is not bound by the AOJ's formal finding. Although the AOJ used the term "conclusive," the underlying evidence from the requested development provided no evidence that the Veteran was exposed to herbicide agents. Therefore, not even the standard of "at least as likely as not" is met. The AOJ's use of the word "conclusive" has no impact on the Board's finding that it is not at least as likely as not that the Veteran was exposed to herbicide agents. For these reasons, there was substantial compliance with the Board's July 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The parties to the JMPR also agreed that the Board failed to address the credibility of the Veteran's statement identifying aircraft that he claimed were contaminated with herbicide agents. He asserted that he service, repaired, and flew in aircraft that were contaminated with herbicide agents. He identified CH-53 A-D troop and equipment transport, CH-46 A-D model troop and equipment transport, A-4 Skyhawk fighter attack aircraft, and AH-1J attack helicopter. The parties noted that the Board failed to address his credibility that he worked on specific aircraft that he contends were used for Agent Orange dispersal. The Board finds that a credibility determination is not needed in this case because the Veteran is not competent to state that the aircraft he worked on were contaminated with herbicide agents as defined by VA regulation. He is competent to report what types of aircraft he worked with. His statements listing the types of aircraft he worked on is credible. However, he is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. An herbicide is simply a substance that is toxic to plants and used to destroy vegetation. An "herbicide agent" for the purposes of presumptive service connection is being "2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram." In this case, he has professed no specialized ability to detect these specific substances in the environment or to determine whether specific aircraft he serviced were used to spray them, and his assertions of exposure are essentially speculative. His lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred, and his assertions must be weighed against other evidence of record, including the lack of documentary evidence that he worked on aircraft that had been in Vietnam and were used to disperse herbicide agents. In this case, there is no evidence documenting that he worked on aircraft that were specifically in Vietnam and used for the purpose of dispersing herbicide agents. His service personnel records and the records obtained after the Board's remands do not support a finding that he was exposed to herbicide agents via aircraft that had sprayed them in Vietnam. Therefore, the Board need not reach the question of whether his assertion is credible. The governing law provides that a "veteran 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, 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." Service in the Republic of Vietnam under this provision includes service on the landmass and service on inland waterways. 38 U.S.C. § 1116(f). The Veteran does not assert that he served in the Republic of Vietnam during the Vietnam Era. Presumptive service connection for exposure to herbicide agents does not apply, and direct service connection must be considered. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed Cir. 1994). His sole assertions regarding herbicide agents are that he was exposed at Camp Pendleton, and that herbicide agents were stored at MCAS El Toro and MCAS Tustin, and that he was exposed to contaminated aircraft that had sprayed herbicide agents in Vietnam. The Board finds that it is not at least as likely as not that he was exposed to herbicide agents as defined by VA regulation, and therefore presumptive service connection for diabetes mellitus, type II, is not warranted. In October 2020, the Veteran's attorney argued that the Veteran was not actually asserting that he was exposed to herbicides while working on contaminated aircraft. And instead, the Veteran was asserting that Agent Orange was stored at MCAS Tustin and MCAS El Toro, and he was exposed this way. Similar to not being competent to state whether he was exposed to aircraft that have been used to spray herbicide agents as defined by VA regulation, he is also not competent to determine whether he was exposed to herbicide agents simply because he was stationed at MCAS Tustin and MCAS El Toro. The information returned by the Marine Corps for Camp Pendleton, MCAS El Toro, and MCAS Tustin does not show that it is at least as likely as not that the Veteran was exposed to herbicide agents at these locations. The AOJ substantially complied with the Board's July 2019 remand directives, as discussed above. Based upon the AOJ's research, the Board finds that the evidence provided by the Marine Corps does not provide probative evidence in support of the Veteran's claims. It does not indicate that herbicide agents were present at these locations. It also does not indicate that specific aircraft that were in Vietnam and specifically were used to spray herbicide agents were present at these locations. As noted above, the Veteran is not competent to identify an herbicide agent as defined by VA regulations. Further, regarding whether herbicide agents were stored at Camp Pendleton, MCAS El Toro, or MCAS Tustin, a June 2016 formal finding states that the AOJ attempted to verify exposure at Camp Pendleton by researching the Department of Defense (DoD) inventory of herbicide operations. The DoD was unable to verify herbicide exposed at Camp Pendleton. After the Veteran asserted he was exposed at El Toro or Tustin, a second inquiry was made. DoD has not identified MCAS El Toro or Tustin or any other military base in California as a location where herbicides were used, tested, stored, or transported. The AOJ noted first that there were no combat operations in California from 1962 to 1971. Then, the AOJ explained that MCAS El Toro or Tustin were "...not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships." Further, the AOJ explained that all use of Agent Orange by the United States Military was terminated in 1971, which was seven years prior to the Veteran's claimed exposure. Lastly, the AOJ noted that there was no scientific evidence available to VA showing that being in the vicinity of aircraft or equipment previously used in Vietnam can be considered as exposure to herbicide agents or can result in long-term health effects. The Department of Defense has not identified MCAS El Toro or Tustin, or any other military base in California as a location where herbicide agents were used, stored, or transported. This is probative evidence against the Veteran's claim. In October 2020, the Veteran's attorney argued that the Veteran "...cited evidence showing that both locations had been contaminated...." The articles he submitted do not support a finding that he, specifically, was exposed to herbicide agents. He submitted an article titled "Hydraulic Contamination and Related Servicing/Test Equipment." It stated that hydraulic contamination in Navy and Marine Corps aircraft caused hydraulic and component failure, and that servicemembers should attempt to prevent contamination. It outlined maintenance procedures. He also submitted an article titled "Naval Aviation Maintenance Program for Hydraulic Contamination and Control." These articles do not address herbicide agents as defined by VA regulations and does not support his claim. He submitted an article abstract titled, "Multiple Deaths Resulting from Shipboard Exposure to Trichlorofluoroethane." Trichlorofluoroethane is not an herbicide agent as defined by VA regulations. TCE is trichloroethylene. Dorland's Illustrated Medical Dictionary, 1962 (32nd ed. 2012). The "T" in 2,4,5-T stands for "trichlorophenoxyacetic acid." Id. The "D" in 2,4-D stands for "dichlorophenoxyacetic acid." Id. at 512. TCDD (dioxin) is 2,3,7,8-tetrachlorodibenxio-p-dioxin. Id. at 1874. He also submitted articles outlining the toxicity of trichlorofluoroethane, a "military specification" of trichlorofluoroethane, an article about the Navy's cessation of use of trichlorofluoroethane due to toxicity, and the toxicity of freon (the article notes this is another name for trichlorofluoroethane). He submitted articles that included a discussion of the toxicity of types of freon including dichlorodifluoromethane and trifluorobromomethane. He submitted articles about medical treatment for exposure to trichlorofluoroethane. These articles does not support his claim that he was exposed to herbicide agents because trichlorofluoromethane, dichlorodifluoromethane, and trifluorobromomethane are not herbicide agents as defined by VA regulations. He also submitted a "material safety data sheet" about 1,1,2-Trichlorotrifluoroethane, and other articles about this chemical, which is also not an herbicide as defined by VA regulations. It does not support his assertion that he was exposed to herbicide agents. He submitted an article from the California Department of Toxic Substances Control about MCAS Tustin. It noted the following "potential contaminants of concern": asbestos containing materials (ACM), dichlorvos, metals, petroleum, polychlorinated bisphenols, polynuclear aromatic hydrocarbons (PAHS), volatile organics (VOCS). Other contaminants were jet fuel, aviation gas, oil, solvents, battery acids, and hydraulic oil. Herbicide agents as defined by VA regulation were not listed. He submitted an article from Veteranstoday.com titled "El Toro's Most Toxic 200 Acres" which claimed that 55 gallon drums of TCE and perchloroethylene (PCE) were used to degrease aircraft parts, and that these chemicals are carcinogens. The article then states that, [a]fter TCE was banned from use, the chemicals continued to be used at El Toro. The official Navy and EPA reports state that TCE/PCE was discontinued in the mid-1970's. Don't believe it. Reports from Marine veterans on the base in the 1990's note that TCE was such a good solvent that it continued to be used despite the official policy of nonuse. Drums of TCE waste were buried to hide them from the Marine Corps Inspector General during on-site inspections. This information was reported to the Navy but no action was taken to locate and remove the rotting steel drums. This article accuses the Marine Corps of a serious violation of a directive to discontinue use of TCE/PCE and an even more serious action of deliberately deceiving the Marine Corps Inspector General. The article cites no sources for these accusations other than "Marine veterans," with no names given, and a general statement that Salem-News.com received "anecdotal reports" of veterans becoming ill. These accusations are not credible and do not support the Veteran's claim that he, specifically, was exposed to herbicides by being at MCAS El Toro. The article also summarized a report from L. S., an environmental consultant and Director of the Center for Public Environmental Oversight in Mountain View, California, who concluded that there should be a retrospective evaluation of the risk of exposure to vapors in the Southwest portion of the base. It included a quote from L. S. recommending that better evaluation of contamination at El Toro was needed to address the level of TCE contamination. He addressed the amount of TCE in the groundwater and soil. This article does not support a finding that the Veteran in this case was exposed to TCE. It is generic in nature and does not apply to the facts of the case. Standing alone, it does not show that the Veteran was exposed to TCE by the circumstances of his service, even if TCE was present at the base. He also submitted an article from Salem-news.com titled "What lurks beneath this old Marine Base?" about MCAS El Toro. It alleged that TCE was stored there, and noted that experts found that the soil there was contaminated with U-235 and that TCE drums were hidden from the Marine Corps Inspector General. Again, this assertion is not supported by sources. It also stated, without supporting data, that "[t]he facts are that Agent Orange was used at El Toro and at least one Marine died from exposure to Agent Orange at the base." He submitted a second article from Salem-News.com titled "MCAS Tustin...California's Other Closed and Contaminated Marine Base." This article claimed that it was contaminated with TCE. It also contained comments of people providing anecdotal evidence about getting sick after serving there. In a lay statement accompanying these articles, the Veteran claimed toxic levels of dioxin "the active ingredient in Agent Orange and Tichloroethane[sic] (Solvents) are the primary hazard and these levels are linked to exposure and health hazards." He stated that he "serviced and repaired Vietnam era aircraft that served in country Vietnam and that I was stationed at documented toxic and contaminated duty stations while on active duty." This statement does not support his claim that he was exposed to herbicide agents, as the Board has found that he is not competent to state that the specific aircraft he serviced were in Vietnam or that they were contaminated with herbicide agents. The Veteran submitted a copy of a Board decision from May 2010. It was the case of a surviving spouse seeking service connection for the cause of the Veteran's death. Board decisions are binding only on the specific case decided, and the decision provided has no precedential value in this Veteran's case. 38 C.F.R. § 20.1303. Prior decisions in other appeals may be considered to the extent that they reasonably relate to the case. But the Board must decide cases on the basis of the individual facts of the case before it. Id. The Board decision that the Veteran submitted does not reasonably relate to his case. The Veteran in the decision he submitted left service in 1970, years before the Veteran in this case entered service. He served at MCAS El Toro from February 1967 to May 1967 and from July 1969 to October 1970. His periods of service did not overlap with the Veteran in this case. The May 2010 appellant submitted an opinion from one of the deceased Veteran's treating physicians who noted that that MCAS had been contaminated, and that the EPA had found that MCAS El Toro had been contaminated with chemicals such as waste oil, hydraulic fluids, and other substances. Herbicide were not mentioned. The Board specifically found that the Veteran was exposed to "chemicals and pollution," not herbicide agents. Further, the Board decision was about whether the chemicals and pollution caused chronic lymphocytic leukemia and small lymphocytic lymphoma. Because of these differences, it does not support a finding that the Veteran in this case was exposed to herbicide agents. Even if the Board were to assume, without finding, that TCE was present at either MCAS El Toro or MCAS Tustin while the Veteran was located there, the evidence does not show that he specifically was exposed to it. There is no presumption of herbicide agent exposure for MCAS El Toro or MCAS Tustin and the facts of the case do not support a finding that he was exposed due to the circumstances of his service. Even if the articles supported a finding that TCE was present, the information is generic and does not address the service of the Veteran in this case. Additionally, as explained above, the Veteran is not competent to state that he was exposed to herbicide agents as defined by VA regulation. The Board finds that it is not at least as likely as not that the Veteran was exposed to herbicide agents simply by virtue of being present at these locations. The Board also finds that it is not at least as likely as not that he worked on aircraft that had been used to spray herbicide agents in Vietnam. Because the Veteran is not presumed to have been exposed to herbicide agents, and it is not at least as likely as not that he was exposed to herbicide agents by virtue of being at Camp Pendleton, MCAS El Toro, or MCAS Tustin, or working on aircraft that he asserts were contaminated with herbicide agents, presumptive service connection for diabetes is not warranted. The articles that the Veteran submitted also assert that there were numerous other chemicals contaminating the locations where he served. In June 2010, when discussing his claim for service connection for a heart condition, he asserted that he was exposed to hydraulic contamination and trichlorofluoroethane, as discussed above. He stated that he worked in a poorly ventilated and small room without a breathing apparatus. The Veteran is competent to state that he was exposed to chemicals such as jet fuel and freon (trichlorofluoroethane). Even if the Board were to assume that he was exposed to chemicals other than herbicide agents, the Veteran is not competent to determine that these chemicals caused his diabetes. This determination requires medical inquiry into biological processes, pathology, and knowledge of the impact of chemicals on the body. These are internal processes that are not readily observable. The Veteran in this case has not shown that he has the skills or training necessary to make such a determination. The articles he submitted do not address a relationship between chemical exposure and diabetes. Instead, they center around the hydraulic contamination and the presence of chemicals at MCAS El Toro and MCAS Tustin, that the chemicals are generally toxic, cause health problems (but do not list diabetes), and are carcinogens. The preponderance of the evidence is against a finding that if the Veteran was exposed to toxic chemicals, they caused his diabetes mellitus. A VA opinion is not necessary to address chemical exposure and diabetes. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Veteran makes the conclusory statement that his diabetes is caused by his exposure to various chemicals in service. This bare allegation of a link is not sufficient to meet even the low burden to trigger VA's duty to assist in proving a medical opinion. The article "What lurks beneath this old Marine Base" states that a Marine who wished to remain anonymous who served at MCAS El Toro in the 1960s, before the Veteran, had diabetes. This is unrelated to the current case and a mere statement that a person served at this facility and currently has diabetes does not meet the low threshold to require an examination. The other articles do not allege a link between diabetes and the chemicals they discuss. Diabetes is a chronic disability as set forth in 38 C.F.R. § 3.309(a). For conditions listed under that provision, service connected may be presumptively granted if they are diagnosed within one year of separation from service. The evidence does not show, nor does the Veteran assert, that his diabetes manifested within one year of his separation from service. Lastly the Veteran does not assert, nor does the evidence indicate, that his diabetes mellitus was due to an event, injury, or disease in service other than his claimed exposure to herbicide agents and chemicals. For these reasons, the preponderance of the evidence is against the claim for service connection for diabetes mellitus. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.