Citation Nr: 21007266 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-42 300A DATE: February 9, 2021 ORDER Entitlement to service connection for diabetes mellitus as a result of exposure to herbicide agents is denied. Entitlement to service connection for skin rash on head and chest as a result of exposure to herbicide agents is denied. The notice of disagreement received March 26, 2015 was not timely filed, therefore the appeal was not accepted. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents while in service. 2. The Veteran’s diabetes mellitus, type II did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 3. The Veteran’s skin rash on his head or chest did not begin during active service, nor is otherwise related to an in-service injury, event, or disease. 4. The Veteran failed to file a notice of disagreement or request appellate review of the February 2014 rating decision until more than a year following notice of that rating action. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1112, 1116b, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(6)(iv), 3.309(e), Diagnostic Code (DC) 7913 (2019). 2. The criteria for entitlement to service connection for skin rash on the Veteran’s head and chest, to include as a result of exposure to herbicide agents, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Code (DC) 7806 (2019). 3. The Veteran did not file a timely notice of disagreement with the February 2014 rating decision, and the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1971 to October 1972 and from January 1973 to December 1975. This November 2019 appeal comes before the Board of Veterans’ Appeals (Board) from a April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama denying entitlement to service connection for diabetes mellitus, a skin rash on the head and chest, hypertension, and peripheral neuropathy of bilateral lower and upper extremities. The Veteran timely filed his November 2019 appeal on the issues of diabetes mellitus and a skin rash due to agent arrange exposure and elected a Board hearing which he was afforded in December 2020. The Veteran did not appeal the remaining issues in the April 2017 rating decision and therefore those issues are not currently before the Board. Also before the Board is the Veteran’s August 2016 appeal of an August 2016 statement of case that decided Veteran’s notice of disagreement for his posttraumatic stress disorder claim, received March 26, 2015, was not timely filed, therefore the appeal was not accepted. Service Connection The Veteran is seeking service connection for diabetes mellitus, type II (diabetes), and a skin rash on his head and chest. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for diabetes mellitus as a result of exposure to herbicide agents The Veteran contends that his diabetes mellitus is due to his active service, specifically due to exposure to herbicide agents while in Korea. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). If a veteran was exposed to an herbicide agent during active service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Claims for presumptive service connection based on service at or near the Korean Demilitarized Zone (DMZ) fall under the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act). The new law appears to codify VA’s regulation 38 C.F.R. § 3.307(a)(6)(iv) related to veterans who served in Korea in a new section of the U.S. Code 38 U.S.C. § 1116b, though with modifications. Notably, it contains no reference to units designated by Department of Defense (DOD); it simply refers to veterans who “served in or near” the DMZ. Compare 38 C.F.R. § 3.307 (a)(6)(iv), with 38 U.S.C. § 1116b (2019). Specifically, under 38 U.S.C. § 1116b, a veteran who developed a disease recognized as presumptively related to herbicide exposure, and who served during active military, naval, or air service, in or near the DMZ, during the period beginning on September 1, 1967, and ending on August 31, 1971, shall be considered to have been incurred or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116b (2019). Once in-service exposure to Agent Orange (either presumptive or actual) has been established, a veteran may obtain service connection on a presumptive basis for any of the diseases found to be associated with such exposure. Department of Defense (DOD) has advised that herbicide agents were not applied within the DMZ but were applied in some adjacent areas. See 74 F.R. 36640 (2009). Specifically, DOD has reported that herbicide agents were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. Id. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicide agents. There was no aerial spraying. Id. The Veteran testified in his December 2020 hearing that he served in Korea with the 23rd Security Group and was stationed in Taejon (Daejeon) Korea and provided security around the ammo dump. In addition, he testified prior to being transferred to Taejon he was temporarily in Uijeongbu, and later was transferred to Busan. The Veteran testified that he was sent to be screened for Agent Orange and was told by the examiner that he had Agent Orange and was going to be placed on the register. Id. He stated that his skin rash and diabetes started approximately the same time he was told he had been exposed to Agent Orange. Id. None of the 3 cities the Veteran testified he was stationed or visited are located within the DMZ. Using Google maps to measure the distance, the Board takes judicial notice that Uijeongbu, the closest to the DMZ, is approximately 24 miles away, Taejon is approximately 118 miles away and Busan is approximately 226 miles away. See United States v. Burroughs, 810 F.3d 833, 835 n.1, 420 U.S. App. D.C. 469 (D.C. Cir. 2016) (finding judicial notice of Google maps appropriate because the map’s “‘accuracy could not reasonably be questioned’” for purpose of identifying the general layout of an area.) (quoting Fed. R. Evid. 201(b)(2)). Therefore, the Board finds that the Veteran was not “near” the DMZ as the closet location he was temporarily stationed was 24 miles away and herbicide agents were only applied to a 350 yards wide section along the southern edge of the DMZ. During the Veteran’s August 2016 Agent Orange examination, the examiner concluded that the Veteran was exposed to Agent Orange, however he failed to provide any rationale in support of his conclusory statement. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Stefl v. Nicholson, 21 Vet. App. 120 (2007). In addition, the purpose of the examination is to provide Veteran’s with education on Agent Orange, not to make exposure determinations. In March 2017, VA made a formal finding that it lacked the information necessary for the Joint Services Records Research Center (JSRRC) to verify herbicide exposure. See March 2017 Correspondence. The notice outlined the efforts VA had taken to verify the Veteran’s exposure including reviewing his personnel records from the National Personnel Records Center (NPRC) which failed to indicate the Veteran had been exposed to herbicide agents while in service. Notice was sent to the Veteran to request submission of additional information to assist in verifying exposure, however the Veteran did not provide the required information. Id. The Board finds that the evidence of record does not support the Veteran’s contention that he was exposed to herbicide agents while in service and therefore is not entitled to presumptive service connection under the Blue Water Navy Act. 38 U.S.C. § 1116b (2019). Although the presumption of herbicide agent exposure is not satisfied, the Board has considered whether service connection may be established on alternative bases. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran was notified in July 2011 that his service treatment records (STRs) from the period of February 3, 1971 to October 28, 1972 were unavailable for review. VA requested that the Veteran submit copies of the unavailable medical records or alternative documents to substitute for the medical records. The Veteran did not submit any additional documentation. Although the medical records from that period of service are unavailable, there is a March 1972 medical history form that indicates the Veteran does not have diabetes. See June 2011 STRs. The Veteran testified that he was diagnosed with diabetes around the same time as his Agent Orange examination in August 2016. See December 2020 Hearing Transcript. He testified that he did not have any problems for a long time after service until he went to VA and was diagnosed with diabetes. Id. The Veteran’s friend, L.G., testified that the Veteran was diagnosed with diabetes prior to his VA examination, in approximately 2000. Id. The Veteran’s VA medical treatment records indicate that the Veteran was diagnosed with diabetes in October 2010. See November 2012 VA Medical Treatment Records. The Board finds the Veteran’s diabetes was not present during service, was not present for many decades afterward and is not related to his service. The evidence of record is silent for any treatment, complaints or diagnosis of diabetes until October 2010, approximately 38 years after the Veteran’s service. The Veteran testified that he had no medical problems for a long time after service until he went to the VA and was diagnosed with diabetes. See December 2020 Hearing Testimony. Although L.G. testified the Veteran was diagnosed with diabetes in 2000, there is no medical evidence in support of this contention. Id. While the Veteran believes his diabetes is related to exposure to herbicide agents, the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Further, the Veteran is not competent to provide a diagnosis or causal relationship in this case. The issue is medically complex, as it requires specialized medical education and knowledge to determine the nature and etiology of the condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of entitlement to service connection for diabetes mellitus must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for skin rash on head and chest as a result of exposure to herbicide agents The Veteran contends that he has a skin rash on his head and chest that is due to service, specifically due to exposure to herbicide agents. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a skin rash on his head and chest, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran describes the rash as red and bumpy and states that it burns. See October 2016 Statement in Support of Claim. He testified that the skin rash on his head and chest started about the same time he was diagnosed with Agent Orange. See December 2020 Hearing Transcript. During the hearing, L.G. also testified that the rash comes and goes, the hair comes out of his head and that it is on his back and down to his waist. She stated the doctor did check the rash. Id. The Veteran’s August 2016 Agent Orange examination does not indicate a specific diagnosis or history of a skin rash, and at the time of the examination the examiner noted the Veteran did not have a rash or discoloration of his skin. A November 2012 VA medical treatment record notes the Veteran was diagnosed with seborrheic dermatitis in October 2010, however in October 2011 the condition was noted as quiescent. There is no additional evidence of complaints or treatment for this condition. There is no evidence of complaint, treatment or diagnosis of an additional skin disorders. Id. The Board finds the Veteran’s skin rash is not related to his service. The evidence of record is silent for any treatment, complaints or diagnosis of a skin rash until October 2010, approximately 38 years after the Veteran’s service. The Veteran testified that he had no medical problems for a long time after service until he went to the VA and was diagnosed with a skin rash in 2016. See December 2020 Hearing Testimony. While the Veteran believes his skin rash is related to exposure to herbicide agents, the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Further, the Veteran is not competent to provide a diagnosis or causal relationship in this case. The issue is medically complex, as it requires specialized medical education and knowledge to determine the nature and etiology of the condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the Veteran’s skin condition is not related to an in-service injury, event, or disease. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of entitlement to service connection for skin rash on head and chest must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. The notice of disagreement received March 26, 2015 was not timely filed. An appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. Any written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute a notice of disagreement. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes a notice of disagreement. All communications should be liberally construed. A claimant or representative must file a notice of disagreement within one year from the date that the RO mailed notice of a decision. 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104. The issue of whether a notice of disagreement has been filed on time is appealable. If the claimant or representative protests an adverse decision made by the RO with respect to the timely filing of a notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c). The Board finds that the evidence does not support that the Veteran’s notice of disagreement was filed timely as to the February 2014 rating decision, which denied the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). The February 2014 rating decision confirmed and continued a prior denial of entitlement to service connection for PTSD. Notice of the decision was mailed on February 25, 2014 to the Veteran’s address of record at the time, which he confirmed as the correct mailing address during his December 2020 hearing. The notices were not returned to the RO or marked as undeliverable. The Veteran’s notice of disagreement with the February 2014 rating decision was received on March 26, 2015. Between February 25, 2014 and March 26, 2015, the Veteran submitted a February 28, 2014 statement in support of claim stating he did not get a VA examination for his PTSD and he was requesting an examination. However, there is no additional communication received from the Veteran expressing disagreement with and a desire for appellate review of the February 2014 rating decision. The Veteran submitted a notice of disagreement in March 2015 and was notified by the RO in June 2015 that his notice of disagreement was not submitted in a timely manner, as it was received beyond the one-year period and could not be accepted. Accordingly, as there was no notice of disagreement within the appropriate period of time (within one year of notification of denial), a valid and timely notice of disagreement in response to the February 2014 rating decision was not received, (Continued on the next page)   and therefore, the notice of disagreement was untimely, and the February 2014 rating decision is final. 38 C.F.R. §§ 20.204(c), 20.302. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.