Citation Nr: 21005997 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-28 845 DATE: February 3, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II (diabetes), as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diabetes began during active service or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1964 to November 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in August 2018. In an August 2018 Board hearing, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See August 2018 Board Hearing Transcript. Entitlement to service connection for diabetes, to include as due to herbicide exposure, is denied. Establishing service connection on a “direct” basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) and in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for diabetes may be established on a presumptive basis if the disorder manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents, to include diabetes. Exposure to herbicides is presumed for veterans who served in the Republic of Vietnam (RVN) during the Vietnam Era or who served between September 1, 1967, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during this period. See 38 U.S.C. § 1116, 1116B; 38 C.F.R. § 3.307(a)(6), 3.309(e). Claimants who are not entitled to a presumption of exposure to herbicides may establish herbicide exposure through the submission of probative evidence. See Gray v. McDonald, 27 Vet. App. 313 (2015).   Factual Background. The Veteran has asserted that he was exposed to herbicides while stationed in Panama. See July 2012 VA Form 21-526; March 2013 Correspondence; April 2014 Notice of Disagreement (NOD). The Veteran’s service personnel records indicate that, from July 1965 to October 1966, the Veteran served as a scout observer and scout drive while stationed at Fort Clayton, Canal Zone (Panama), assigned to Headquarters and Headquarters Company, 4th Battalion, 20th Infantry Regiment. See Service Personnel Records. The Veteran submitted an article from Canadian Broadcasting Corporation (CBC) News which, in pertinent part, notes that veterans have asserted that herbicides were used in the Panama Canal Zone from the 1960s to early 1970s. See Deadly Defoliants, CBC News, June 14, 2005, submitted March 2013. The Veteran submitted an article from the Dallas Morning News, as well as articles from bluewaternavy.org, which discussed an article by the Dallas Morning News concerning the use of herbicides in Panama during the Vietnam War. Though noting that the allegations were unproven, the articles discussed reports that Agent Orange was used at Fort Sherman in 1969 and 1970, as well as the award of benefits to the widow of a veteran on the basis of herbicide exposure while stationed in Panama in the early 1970s. See Robberson, Tod, U.S. Tested Agent Orange in Panama, Dallas Morning News, August 20, 1999 (submitted January 2020); Agent Orange in Panama, bluewaternavy.com, submitted March 2013. The Veteran’s service treatment records (STRs) are silent as to any complaints, treatment, or diagnosis of diabetes. See STR-Medical. The Veteran’s VA treatment records indicate that he was diagnosed with diabetes in March 2012. See San Juan VA Medical Center (VAMC) records, received March 2020 in CAPRI. In January 2020, the Joint Services Records Research Center (JSRRC) stated that unit histories do not show that the Veteran or other personnel assigned to the 4th Battalion were exposed to herbicide agents, nor did the histories document the use, storage, spraying, or transporting of tactical herbicides in Panama. See January 2020 VA Memo. Analysis. As discussed above, the Veteran has been diagnosed with diabetes. See San Juan VAMC records. As such, the first element of service connection has been established. Therefore, resolution of this appeal turns on whether there is the required attribution of his diabetes to his military service, including to his claimed herbicide exposure. As to the second element of service connection, the Veteran’s diabetes was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Essentially, the evidence of record shows that the Veteran was not diagnosed with diabetes until March 2012, approximately 45 years after his separation from service and outside of the applicable presumptive period. See id.; Service Personnel Records. As such, the Veteran is not entitled to service connection on a presumptive basis for chronic conditions. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that he is entitled to service connection on a presumptive basis due to herbicide exposure while stationed in Panama. As discussed above, service connection for diabetes may be granted on a presumptive basis if a veteran was exposed to herbicides. See 38 C.F.R. § 3.309(e). The Veteran’s service personnel records do not indicate service in the RVN or along the Korean DMZ. See Service Personnel Records. The Veteran does not contend to the contrary. As such, the Veteran does not meet the requirements for a presumption of herbicide exposure. See 38 C.F.R. § 3.307(a)(6). Nonetheless, service connection may still be granted if actual exposure to herbicide agents can be established. See Gray v. McDonald, supra. The Veteran has asserted that he was exposed to herbicides while stationed in Panama, where his duties as a scout frequently required him to travel into the surrounding jungle. See August 2018 Board Hearing Transcript. The Veteran’s service personnel records indicate that, from July 1965 to October 1966, the Veteran served as a scout observer and scout driver, while stationed at Fort Clayton, Canal Zone. See Service Personnel Records. To support his claim of herbicide exposure, the Veteran has submitted several articles discussing allegations of the use of herbicide agents in Panama from the mid-1960s to early 1970s. Of particular note, the articles discuss a widow’s award of VA benefits based on her military husband’s exposure to herbicides in Panama. The articles note that, at the widow’s Board hearing, a former government head of the Agent Orange Litigation Project, identified as C.B., testified that he saw hundreds of barrels of Agent Orange had been shipped to Panama in the mid-1960s for tests. He also testified that, after the tests, the barrels remained in Panama for use in controlling weeds. See Deadly Defoliants, supra; Robberson, Tod, supra; Agent Orange in Panama, supra. However, while these articles discuss assertions that Agent Orange was used in Panama at Fort Sherman and Fort Kobbe, the Veteran was stationed at Fort Clayton, which the articles are silent towards. See id.; Service Personnel Records. Additionally, the articles provide only speculative general statements that contain no evidence that the Veteran was personally exposed to herbicides during his service in Panama. Therefore, the articles do not, in and of themselves, support the claim for service connection. Wallin v. West, 11 Vet. App. 509 (1998). Moreover, a layperson’s assertions indicating exposure to gases or chemicals during service are not, alone, sufficient to establish actual exposure to an herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Further weighing against a finding of actual exposure, the JSRRC has stated that unit histories do not show that the Veteran or other personnel assigned to the 4th Battalion were exposed to herbicide agents, nor did the histories document the use, storage, spraying, or transporting of tactical herbicides in Panama. See January 2020 VA Memorandum. In other words, the JSRRC was unable to confirm the Veteran’s contention that he was exposed to herbicides while stationed in Panama. As such, to the extent the Veteran has asserted that he was exposed to herbicide agents while stationed at Fort Clayton in Panama, the Board finds that such statements are unsupported by the evidence of record and affords more probative weight to the January 2020 Memorandum, which noted the JSRRC finding that there was no evidence to support the use, storage, spraying, or transporting of tactical herbicides in Panama. As the credible and probative evidence of record is against finding an in-service event or injury, the Board finds that the second element of service connection has not been met. Nevertheless, even if the Board were to ignore the lack of credible evidence supporting an in-service event, there is no competent evidence suggesting a medical nexus between the Veteran’s diabetes and his active duty service. Indeed, the evidence of record is silent with respect to any indication or assertion of a medical nexus aside from the Veteran’s claim of entitlement to service connection. The Board notes that no examination has been conducted. The Board acknowledges that, under 38 U.S.C. § 5103A(d), VA’s duty to assist includes providing a claimant with a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim and there is competent evidence that the claimant has a current disability and there is an indication that the disability may be associated with the claimant’s service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the evidence “suggesting” a nexus between the Veteran’s diabetes and his military service consists solely of the Veteran’s assertion that his condition is related to in-service herbicide exposure. However, a mere conclusory generalized lay statement that a claimant’s condition is related to their military service is insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). Additionally, as discussed above, there currently is no credible evidence of an in-service event, and VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, supra. Given the complete lack of evidence of a medical nexus between the Veteran’s diabetes and military service, the Board finds that the third element of service connection also has not been met. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for diabetes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim is denied. See Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.