Citation Nr: 21073951 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 14-40 608 DATE: December 13, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (diabetes mellitus), as due to herbicide exposure is denied. FINDING OF FACT The most probative evidence of record fails to demonstrate that the Veteran's diabetes mellitus was incurred in or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for 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 for training (ACDUTRA) from July 1971 to December 1971 and on active duty from April 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a regional office (RO) of the Department of Veterans Affairs. This matter was previously remanded by the Board of Veterans Appeals (Board) in March 2019 for additional development. It now returns for further appellate review. Entitlement to Service Connection for Diabetes Mellitus The Veteran contends he is entitled to service connection for diabetes mellitus as due to exposure to Agent Orange while serving on active service in Korea. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including diabetes, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Relevant Facts and Analysis The Board finds competent evidence of the claimed disability. A May 2014 VA examiner confirmed that the Veteran has been diagnosed with diabetes mellitus since 1999. See May 2014 VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ). Additionally, the Veteran's VA treatment records confirm he was prescribed insulin and metformin for diabetes mellitus. See i.e., November 2015 Active Non-VA Medications, in CAPRI received January 2020. Thus, the Board finds that the first element of service connection has been met. However, the Board does not find competent evidence of an in-service illness or event. In this regard, the Veteran's service treatment records (STRs) are silent for reports of symptoms, conditions, or treatment for diabetes mellitus during service. Notably, the Veteran denied any prior treatment for diabetes twice in August 1971 and June 1975 (date partially eligible). See August 1971 and June 1975 Medical History Questionnaires, in STR-Medical. Additionally, during the September 1975 separation examination, the Veteran had normal clinical findings for his endocrine system, and he had negative finding of sugar on urinalysis study. See September 1975 Report of Medical Examination. In sum, there was no instance in which the Veteran reported of any relevant symptoms or signs of diabetes mellitus during service. Additionally, the evidence of record does not support the Veteran's contention that he was exposed to herbicide agents during service. With regard to the alleged herbicide exposure, the Veteran served in Korea from September 1, 1974 to October 31, 1974. In claims for service connection due to Agent Orange exposure, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971 in a unit that operated in or near the Korean Demilitarized Zone (DMZ), shall be presumed to have been exposed during such service to certain herbicide agents, including Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran's period of service falls outside the above-cited statutory period, exposure to herbicide agents cannot be presumed. The Board remanded the claim in March 2019 for additional development to confirm whether the Veteran's exposure to herbicide agents could be established on a facts-found basis. Pursuant to the Board remand, in November 2021 a representative from Defense Personnel Records Information Retrieval System (DPRIS) indicated that 1st Battalion, 9th Infantry was assigned to 2d Infantry Division and that the 2d Infantry Division was on the list of units identified by the VA or Department of Defense (DOD) as having operated in or near the Korean DMZ. See November 2021 DPRIS Response. The DPRIS representative noted that the Veteran's "service with the US Army, 1st Battalion, 9th Infantry from September 1, 1974 to October 31, 1974 does not fall within the VA or the DOD qualifying time frame for conceding Herbicide Exposure with the Korean DMZ from April 1, 1968 August 31, 1971." Id. As such, DPRIS concluded that the Veteran's alleged herbicide exposure could not be conceded. The conclusion was based upon review of the Veteran's claims file, the Command Lineage and Honors Information for the 1st Battalion, 9th Infantry through the U.S. Army Center of Miliary History and the Joint Service Records Research Center (JSRRC) results. As an aside, the Board notes that a recent regulatory amendment removed the reference to the JSRRC in 38 C.F.R. § 3.156(c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. Here the Board finds that VA complied with the March 2019 Board remand as the appropriate record searches were completed. Thus, based on the foregoing evidence the Board finds that the evidence of record supports finding of non-exposure. In evaluating the claims file, the Board acknowledges that the Veteran believes he was exposed to herbicide agents during his active service in Korea. The Veteran is generally competent to report the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, nothing in the record otherwise demonstrates the Veteran is qualified to identify herbicides. Moreover, no other basis for possible herbicide exposure has been demonstrated by the record. Additionally, the Board does not find the Veteran's lay statement is competent evidence of exposure to herbicide agents. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Thus, the Board does not find that the Veteran was exposed to herbicide agents during the course of his military career. Given that diabetes is considered a chronic disease the Veteran could satisfy the in-service disease element, if the diabetes manifested to a compensable degree within a year from separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, in this case, the Veteran was first diagnosed with diabetes in or around 1999 which is approximately 25 years after service. Additionally, the Veteran's STRs are silent for any complaints, signs, or symptoms diabetes and there is no evidence that diabetes mellitus manifested during the applicable period. Accordingly, under both the direct and chronic disease theories of entitlement, the Board finds that the second element has not been met. In addition, there is no competent evidence of record to indicate a link between his current diabetes mellitus and his military service. A preponderance of the evidence is against a claim for service connection for diabetes mellitus. There is no medical opinion of record regarding his diabetes mellitus. Here, a medical opinion regarding the Veteran's diabetes mellitus is not required because the record before the Board does not indicate that the disability had a causal connection to or was associated with his active military service. There is no indication beyond conclusory generalized statements by the Veteran of an event, injury, or disease in service to which the claimed disability may be associated. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board is grateful for the Veteran's service and regrets it cannot issue a favorable decision. In deciding the claim, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. Accordingly, the claim for service connection for diabetes mellitus is hereby denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.