Citation Nr: 21073794 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-38 764 DATE: December 10, 2021 ORDER Service connection for type II diabetes mellitus is denied. FINDING OF FACT 1. The Veteran was not exposed to herbicide agents during active military service. 2. The Veteran's type II diabetes mellitus was not shown as chronic in service, nor was the disability noted within one year from service discharge, and the disability 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 until his honorable discharge in May 1970. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a July 2017 decision by a Regional Office of the United States Department of Veterans Affairs (VA). The Veteran did not elect to testify at a Board hearing as part of his appeal. In December 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to conduct further development as whether or not the Veteran was exposed to herbicide agents while serving in Okinawa, Japan, which the VA Regional Office accomplished. The case now returns to the Board. 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). The Veteran's claim for service connection for type II diabetes implicates three legal theories for service connection. Direct Service Connection 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. Presumptive Service Connection Herbicide-Agent Exposure Per VA regulations, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Type II diabetes mellitus is a listed disease subject to presumptive service connection. 38 C.F.R. § 3.309(e). Presumptive Service Connection Chronic Diseases In addition, service connection may be established on a presumptive basis for certain "chronic diseases" 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), which include type II diabetes mellitus. "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. Continuity of symptomatology is established if a claimant demonstrates that a condition was "noted" during service or during the presumptive period, there is evidence of post-service continuity of the same symptoms, and there is evidence of a nexus between the present disability and those symptoms. 38 C.F.R. § 3.303(b). A condition is "noted" where evidence is "indicative of but not dispositive of a chronic disease." Walker, 708 F.3d at 1336. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Analysis First element: A current disability According the Veteran's VA medical records, he has a current diagnosis of type II diabetes mellitus. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran asserts that while serving in Okinawa, Japan, he was exposed to herbicide agents, including Agent Orange. September 2019, VA Form 9, Substantive Appeal to the Board. Consistent with the Board's December 2020 remand directives, the VA Regional Office sent the Veteran correspondence dated December 10, 2020, requesting that he identify how his military duties exposed him to herbicide agents. The correspondence specifically informed the Veteran that VA needed "to know when, where, and how [he was] exposed." The correspondence also informed him that he could include statements of persons with knowledge of his exposure. Unfortunately, the Veteran did not respond to the VA Regional Office's request for information. Based on the available evidence of record at that time, the VA Regional Office submitted a request to the Military Records Research Center (MRRC) asking the MRRC to provide information as to whether Agent Orange was stored in Okinawa, Japan, and whether herbicide agents were used in Japan to control vegetation. The VA Regional Office provided the MRRC with the Veteran's dates of service in Okinawa, Japan, based on review of his military records associated with his claims file. The MRRC provided the following response: Military Records Research Center is unable to research this request because the circumstances of exposure were not provided. Please see M21-1 VIII.i.1.A.3.c; VIII.i.1.A.4.b; and VIII.i.1.A.6.a[.] If the information is available, please resubmit your request. After receiving this response, the VA Regional Office sent a second correspondence to the Veteran dated September 31, 2021, asking him to identify "when, where, and how [he was] exposed." He was again informed that he could include statements of persons who knew of his exposure. Unfortunately, the Veteran did not respond to this request. At the time of this decision, the Board finds no evidence in the record identifying when, where, or how the Veteran was exposed to herbicide agents during his military service. At most, the Veteran's military records reflect he served in Okinawa, Japan, between January and May 1969. But he has not offered any additional evidence to establish exposure to herbicide agents in service. For example, the Veteran has not identified any particular (or general) locations in Okinawa where he believes exposure occurred; he has not offered a specific (or general) timeframe for such exposure; nor has he identified how he came into alleged contact with herbicide agents. The mere claim of being exposed to herbicide agents is not sufficient evidence to establish that the Veteran was in fact exposed to herbicide agents. 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). The Board recognizes that the Veteran relies on the assertion that other veterans may have been awarded service connection for type II diabetes mellitus based on herbicide-agent exposure in Okinawa, Japan. Yet, he has offered no evidence that he was exposed to herbicide agents. Prior Board decisions are considered binding only with regard to the specific case decided. 38 C.F.R. § 20.1303. "Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." Id. (emphasis added). As there is no evidence or argument connecting other veterans' factual circumstances to this case, the Board finds the Veteran's reliance on other decisions not probative in this case. The Board has thoroughly reviewed the Veteran's in-service and post-service medical records to determine if his type II diabetes mellitus had its onset in service. The Board does not find evidence that the Veteran was diagnosed type II diabetes mellitus in service as there is no evidence of such a diagnosis within his in-service medical records. According to his VA medical records, he was initially diagnosed with type II diabetes mellitus in 2010, approximately 40 years after his discharge from the military. And there is no evidence establishing that symptoms of type II diabetes mellitus were noted during his military service or within one year of discharge from service. Overall, the Board finds a lack of evidence reasonably establishing that the Veteran's type II diabetes constitutes a chronic disease for purposes of presumptive service connection under 38 C.F.R. § 3.309(a). As the record does not establish that the Veteran was exposed to herbicide agents in service, to include at Okinawa, Japan, the presumption of service connection under 38 C.F.R. § 3.309(e) does not apply. As his type II diabetes mellitus did not manifest as a chronic disease under 38 C.F.R. § 3.309(a), presumptive service connection does not apply. There is otherwise no in-service onset, injury, event, or illness to which his type II diabetes mellitus relates. Therefore, the second element is not satisfied. Third element: A causal link As the second element is not satisfied, there is no evidence with which to link his type II diabetes mellitus to his active military service. Therefore, the third element cannot be satisfied. (Continued on the next page) Accordingly, service connection for type II diabetes mellitus is not warranted. 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.