Citation Nr: 21077433 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-22 892A DATE: December 29, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. FINDING OF FACT Diabetes mellitus was not manifested in service or within a year following the Veteran's discharge from active duty, and the preponderance of the evidence is against a finding that it is etiologically related to his service. CONCLUSION OF LAW Service connection for diabetes mellitus is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1974 to March 1982. This matter is before the Board on appeal from a July 2014 Department of Veterans Affairs (VA) rating decision. In March 2019, the matter was remanded for additional development. In October 2018, the Veteran testified at a hearing before a Veterans Law Judge who is no longer with the Board. In October 2021, he was offered the opportunity to request another Board hearing, which he declined. The Board's March 2019 remand also addressed claims of service connection for a left eye disability, residuals of a broken jaw, and residuals of a broken right index finger. A June 2021 rating decision granted service connection for primary open angle glaucoma with macular scar and diabetic retinopathy of the left eye; right temporomandibular joint disorder; and chip fracture right index finger with early rheumatoid arthritis, resolving those matters. Entitlement to service connection for diabetes mellitus is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or an injury in service; and (3) a causal connection, between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases listed in 38 C.F.R. § 3.309(a) (to include diabetes mellitus) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for diabetes mellitus). 38 U.S.C. §§ 1112, 1137. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that his diabetes mellitus is related to exposure to herbicides during service. He contends that he was exposed to planes that had been flown in Vietnam as they were returning from Vietnam, because he was in broadcasting and production, and their film studio was right across from the runways where the planes were landing. He has not submitted any affirmative objective evidence supporting these allegations At the outset, it is noteworthy that because he did not serve in Vietnam during the Vietnam Era, he is not presumed to have been exposed to Agent Orange in service; such exposure must be affirmatively shown. 38 U.S.C. § 1116. The Veteran's service personnel records show that he had no foreign or sea service. He has not presented any affirmative evidence supporting that he was otherwise exposed to herbicide agents in service. Based on the foregoing, the Board finds that he is not shown to have been exposed to herbicide agents during service, and that therefore the presumptive provisions of 38 U.S.C. § 1116 do not apply in this matter. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of diabetes. On January 1982 service separation examination, his endocrine system was normal on clinical evaluation; in a contemporaneous report of medical history, he denied any history of frequent or painful urination or sugar or albumin in the urine. Medical evidence in the record reflects that the Veteran received a diagnosis of diabetes mellitus in October 1997. Later treatment records show treatment for diabetes mellitus. On April 2002 VA examination, the Veteran reported that he had been diagnosed with diabetes mellitus approximately five years earlier; he reported being a Vietnam era veteran and believed he was exposed to Agent Orange. At an October 2018 Board hearing, the Veteran testified that his duties during service had him going in and out of old planes that had flown in the Vietnam area of and could have been contaminated with leftover residue from herbicides, carcinogens, asbestos, or other chemicals. He testified that he was sometimes in C-130s but he was never in C-123s. In October 2018, the Veteran submitted a "buddy statement" from a fellow service member who was stationed with him during service, and stated that they had worked inside a World War II era building that was later determined to have been contaminated with toxic elements including, among other carcinogens, asbestos, that may have had an effect on their present health. On February 2021 VA examination, the examiner opined that the Veteran's diabetes mellitus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that type 2 diabetes mellitus is included in VA's list of presumptive conditions associated with exposure to Agent Orange or other herbicides. The examiner noted that this presumption applied to veterans with "boots on the ground", those serving on inland waterways in Vietnam, "blue water" Navy veterans between January 9, 1962 and May 7, 1975, and veterans who flew or worked in aircraft during the Vietnam War era of 1961 to 1971. The examiner noted that the Vietnam War officially ended on April 30, 1975, although direct U.S. military involvement ended on August 15, 1973. The examiner noted that the Veteran served in the Air Force from May 1974 to March 1982, and there is no military record to indicate exposure to Agent Orange (mixture of equal parts of two herbicides, 2,4,5-T and 2,4-D) during his active duty. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or exposure to carcinogens and asbestos in an old building as well as planes flying in from Vietnam. The Veteran does not allege that his diabetes mellitus was manifested during (or within a year following) his service. Postservice treatment records first show treatment for the disability many years after service. Consequently, service connection for diabetes mellitus on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. §§ 1112, 1137) is not warranted. Although diabetes mellitus is a chronic disease, there is no evidence in the record of postservice continuity of symptomatology; the Veteran has not alleged that he had symptoms of diabetes mellitus in service which have continued to the present. Postservice evaluation/treatment records provide no indication that the Veteran's diabetes mellitus may somehow otherwise be directly related to his service. The February 2021 examiner's opinion (indicating that it is less likely than not that the Veteran's diabetes mellitus is related to his service or alleged exposures therein) reflects familiarity with the record, and includes rationale that cites to supporting factual data. It is probative evidence in the matter. As there is no equally (or more) probative evidence in the record indicating that the Veteran's diabetes mellitus is etiologically related to his service, the Board finds it persuasive. Regarding references to exposure to asbestos and carcinogens in World War II Era buildings during service, the Veteran has not presented any competent affirmative evidence, and there is none in the record suggesting, that his diabetes may be related to any such exposures (if they occurred). His allegations are nothing more than mere lay speculations with no support in the evidentiary record, and have no probative value. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.