Citation Nr: 21073503 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-23 366 DATE: December 8, 2021 ORDER Service connection for type II diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran served with Company B, 304th Signal Battalion, 8th Army FASCOM, in South Korea from December 15, 1968, to August 12, 1970. 2. The Veteran's military unit is not recognized by the Department of Defense as having served in or near the Korean Demilitarized Zone. 3. The Veteran's type II diabetes mellitus was not shown as chronic in service, nor was evidence of type II diabetes mellitus noted within one year from service discharge. 4. The Veteran was not exposed to herbicide agents in service, and his type II diabetes mellitus is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Unites States Army from January 1968 until his honorable discharge in August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 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(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. There is a presumption of exposure to herbicide agents for veterans who "served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period." 38 C.F.R. § 3.307(a)(6)(iv). This presumption is based in part on the acknowledgement that "herbicide[] [agents] were applied near the Korean DMZ from April 1968 to July 1969." McKinney v. McDonald, 796 F.3d 1377, 1379 (Fed. Cir. 2015). It reflects Congress's intent "to concede exposure for veterans who served in or near the Korean DMZ after herbicide[-agent] application ceased, because of the potential for exposure to residuals of herbicide[] [agents] applied in that area." Id. at 1380 (quotation omitted). The provision's August 31, 1971, end date was established "as a reasonable outside date for residual exposure." Id. Once exposure has been established, certain listed medical conditions are presumptively service connected. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). In addition, service connection may be established on a presumptive basis for certain "chronic diseases," including type II diabetes mellitus, that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "chronic disease" refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). "For the showing of chronic disease in service[,] there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' " 38 C.F.R. § 3.303(b). Where a chronic disease is shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. Where the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Id. Analysis The Veteran seeks service connection for type II diabetes mellitus based on his service in South Korea. For the reasons discussed below, the Board finds the evidence of record weighs against presumptive exposure to herbicide agents, and there is a lack of evidence indicating the onset of type II diabetes mellitus in service or within one year following service, and there is otherwise no in-service event, injury, or illness related to his type II diabetes mellitus. First element: A current disability The Veteran has been diagnosed with type II diabetes mellitus. August 4, 2016, VA Examination. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran's military records confirm that he served in South Korea from December 15, 1968, to August 12, 1970, as part of Company B, 304th Signal Battalion, 8th Army FASCOM. See Military Record of Assignments; Foreign Service Record; DD-214. The time he served in South Korea places him within the applicable timeframe under 38 C.F.R. § 3.307(a)(6)(iv). The Department of Defense has provided VA a list of the military units that are currently known to have operated in the Korean DMZ during the period that herbicide agents were applied. See 74 Fed. Reg. 36640, 36641. The Veteran's assigned unit is not listed among those recognized by the Department of Defense, or under VA procedures, as having served along the Korean DMZ. Therefore, he is not entitled to the presumption that he was exposed to herbicide agents during his service in South Korea. The Board also finds that the Veteran was not diagnosed with type II diabetes mellitus, or related symptoms, in service or withing one year following separation from service. Nor is there evidence of diabetes symptoms being noted in service with continuity of symptomatology after discharge required to support a claim for disability compensation. Therefore, service connection for type II diabetes mellitus on a presumptive basis under 38 C.F.R. § 3.309(a) is not available. Even though a presumptive service connection is precluded for the Veteran's type II diabetes mellitus, a grant of service connection may be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has stated and testified that as part of his military occupational specialty as a radio relay and carrier attendant, his unit was assigned to set up microwave test sites at different locations in South Korea, including areas surrounding Uijongbu, Wonju, and other mountain top locations throughout the northern part of South Korea. November 28, 2016, Correspondence (received by VA on April 30, 2018). At a July 17, 2018, Decision Review Officer (DRO) hearing, the Veteran testified he was not within the Korean DMZ during his service. July 2018 DRO Hearing Transcript, at 3. His unit was sent all over the mountaintops. Id. He was not always sure where he was at any given time. Id. His unit visited various camps while setting up sites, including Camp Casey on more than one occasion, which the Veteran said was adjacent to the Korean DMZ. Id.; July 26, 2018, VA Form 21-4138, Statement in Support of Claim. Generally, his duties took him east and northeast of Seoul, South Korea. Id. at 6. He provided similar testimony at his August 2021 Board hearing. At that time, he testified that he served in the northern part of South Korea, but he was unable to testify that he actually entered the Korean DMZ, or that he was otherwise directly exposed to herbicide agents. August 2021 Board Hearing Transcript, at 56. He did testify that he was "very close to the DMZ at many points." Id. at 6. The VA Regional Office sent the Veteran correspondences on June 7, 2016, and November 29, 2018, requesting that he identify specific timeframes, locations, and other evidence to support his presence in or near the Korean DMZ. The Veteran only provided generalized information, including his unit's name and entire timeframe he served in Korea. Thus, the VA Regional Office was unable to conduct any additional research to determine whether the Veteran was in or near the Korean DMZ or otherwise exposed to herbicide agents. The Veteran's Board testimony was also generalized. The Board finds that based on the information provided by the Veteran in conjunction with the evidence of record, VA has reasonably satisfied its duty to assist him in attempting to corroborate his service locations and timeframes in South Korea. The Board has considered whether the information provided by the Veteran in conjunction with all evidence of record establishes that he was in or near the Korean DMZ such that he was directly exposed to herbicide agents on a facts-found basis, rather than a presumptive basis. Unfortunately, the evidence is too generalized and speculative to be of any probative value to the Board. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in [38 U.S.C. §] 5107(b) is not applicable based on pure speculation or remote possibility). Although he has provided statements about which cities and camps he was near, there is a lack of evidence that herbicide agents were used at any of the locations. The fact that the Veteran's unit is not included in the Department of Defense's list is evidence that the herbicide agents were not used in the areas that the Veteran' s unit operated. The Board finds that the Veteran's lay statements, while credible, only show that he was vaguely near the Korean DMZ. They do not show exposure to herbicide agents. The Board points out that being near the Korean DMZ does not show that he was exposed to herbicide agents. Again, mere service in or near the Korean DMZ does not itself show exposure to herbicide agents. Neither the Veteran nor the record asserts any other in-service event, injury, or illness in service that are connected with his claim for service connection for type II diabetes mellitus. In sum, the Board finds the Veteran is not entitled to the presumption of herbicide-agent exposure as his unit is not recognized by the Department of Defense as experiencing potential exposure. The Board also finds no evidence of chronicity or continuity of symptomatology of the Veteran's type II diabetes mellitus. The Board also finds the evidence of record weighs against finding that the Veteran was exposed to herbicide-agents on a facts-found basis, and there is no other in-service event, injury, or illness of record related to his claim for service connection for type II diabetes mellitus. Thus, the second element is not satisfied. Third element: A causal link As the second element is not satisfied, there is no in-service event, injury, or illness related to the Veteran's military service for which his type II diabetes mellitus can be service connected. Therefore, the third element is not satisfied. Accordingly, service connection for type II diabetes mellitus is not warranted based on the evidence of record. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.