Citation Nr: 21007971 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-13 059 DATE: February 11, 2021 ORDER The petition to reopen the previously denied service connection claim for diabetes mellitus, claimed as diabetes and Agent Orange poisoning, is denied. FINDINGS OF FACT 1. The September 2005 rating decision denied the Veteran’s claim of service connection for diabetes mellitus; the Veteran did not perfect an appeal with respect to the issue. 2. The evidence received since the September 2005 rating decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The September 2005 rating decision is final as to the Veteran’s claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for diabetes mellitus has not been received; the claim is not reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1972 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office. In August 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The petition to reopen the previously denied service connection claim for diabetes mellitus is denied. This matter is on appeal from a September 2011 rating decision, which included a denial of entitlement to service connection for diabetes mellitus on the basis that the evidence submitted by the Veteran does not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Here, the RO last denied service connection for diabetes mellitus in September 2005 on the basis that the evidence failed to show a diagnosis of diabetes mellitus during service or any exposure or potential exposure to herbicides while on active duty. The Veteran filed a Notice of Disagreement to the denial of this claim in October 2005. The RO subsequently issued a Statement of the Case in November 2006, denying entitlement to service connection for diabetes mellitus. The Veteran did not file a substantive appeal of this decision to the Board of Veterans’ Appeals within 60 days nor did she submit any documents concerning the claim of service connection for diabetes mellitus that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the September 2005 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence of record at the time of the November 2006 Statement of the Case consisted of the Veteran’s service treatment records, military personnel records, VA treatment records, private treatment records, and the Veteran’s statements. A military personnel record indicates the Veteran was assigned to Fort McClellan from January 1972 to July 1972. A review of the Veteran’s service treatment records does not reflect any complaints, findings, or treatment for any conditions related to diabetes mellitus A June 1972 report of medical examination reported that all of the Veteran’s systems were normal. Turning to the evidence a TBI A September 2004 VA medical record reported that the Veteran has had diabetes mellitus, type 1, since she was 30 years old. A June 2005 response to a Personnel Information Exchange System request to the National Personnel Records Center reported that there were no records of the Veteran’s exposure to herbicides. The pertinent evidence received since the November 2006 Statement of the Case consisted of VA treatment records, private treatment records, articles, Board decisions for other Veterans, copies of social media posts, a copy of a legislative bill that was not enacted, lay statements, and the Veteran’s statements. Initially, the Board observes that the outcome of this case largely turns on the question of whether the Veteran submitted new and material evidence to support a finding that the Veteran has diabetes mellitus that was incurred or aggravated by a period of active military service. In June 2016, the VA sent the Veteran correspondence relaying that she had indicated during her phone discussion with a Decision Review Officer that she would provide specific details of how she was exposed to Agent Orange during her service at Fort McClellan. In June 2016, the Veteran submitted correspondence in which she reported “Agent Orange aka roundup was used to defoliate the parade grounds, and all green areas that I lived & worked in.” She also stated that PCBs were airborne, and in the groundwater, which caused her medical problems. In September 2018, the RO was provided a response regarding Agent Orange use at Fort McClellan that included the following: The Department of Defense (DoD) has provided Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. The list does not contain names of individuals involved with Agent Orange. Additionally, there are no references to routine base maintenance activities such as range management, brush clearing, and weed killing. These were accomplished with commercial herbicides on all military bases worldwide. Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Regarding your Veteran claimant, DoD has not identified Fort McClellan as a location where Agent Orange was used, tested, or stored. Additionally, there is no evidence associating Agent Orange with the US Army Chemical School or Chemical-Biological-Radiological (CBR) Agency located at Fort McClellan. Agent Orange was developed for combat operations in Vietnam and was used there from 1962 to early 1971. Additionally, Fort McClellan was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi to South Vietnam via merchant ships. In August 2020, the Veteran submitted four lay statements from Veterans who knew the Veteran in the 1970s. The individuals reported that the Veteran drank a lot of water and used the bathroom more than normal. At the Veteran’s August 2020 Board hearing, she testified that Agent Orange was used to exfoliate the parade grounds and other areas of Fort McClellan. However, she testified that she did not actually see any Agent Orange cannisters. She stated she previously submitted aerial photographs of cannisters near the barracks that do not show the contents of the cannisters. The Veteran also testified that, during basic training, she was required to enter a gas chamber and hold her breath while taking off her mask. According to the Veteran, “they said that they were using PBCs [sic] and Agent Orange, and not just nerve gas.” In September 2020, the Veteran submitted several articles, including an article published by the VA regarding potential exposures at Fort McClellan, which stated that “[t]here are currently no adverse health conditions associated with service at Fort McClellan.” The article reported that from 1929 to 1971, an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston. In 2015, the Agency for Toxic Substances and Disease Registry published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility.” The articles submitted by the Veteran included a March 2011 article in which former Veterans, including the Veteran, contend they suffer health impairments due to chemical exposure at Fort McClellan. Among the documents submitted on September 2020 is a statement from the Veteran reporting that she had lost a photograph of barrels of chemicals stored near the Women’s Army Corps barracks at Fort McClellan. She stated that it was mentioned in a March 22, 2011 Times Union article without the photo. The Veteran submitted a copy of the March 2011 Times Union article. The article includes a statement from an individual affiliated with a Veterans service organization that Agent Orange was stored near the women’s barracks at Fort McClellan. The article also includes statements from the Veteran and other female Veterans, contending that they suffer health impairments due to chemical exposure at Fort McClellan. The March 2011 article also states that a doctor in Houston later diagnosed the Veteran with Agent Orange exposure after she became a diabetic at age 30. The Board notes that the Veteran’s claims file does not include a diagnosis of Agent Orange exposure; however, an August 2004 VA medical record from the Houston VA Medical Center notes a diagnosis of diabetes mellitus with an onset at age 30, and a diagnosis of skin lesions that the Veteran “feels are related to Agent Orange.”. In November 2020, the Veteran submitted a VA medical record documenting a September 2019 diagnosis of diabetes mellitus type 2. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Other than the Veteran’s testimony at her August 2020 Board hearing, she has provided no evidence that basic training at Fort McClellan involved gas chamber training with nerve gas, Agent Orange, or PCBs, rather than just tear gas. The Veteran has not demonstrated that she is competent to distinguish tear gas from other gaseous substances. Moreover, it is inherently incredible that the Veteran would have been directed to remover her mask in the presence of a gas chamber filled with nerve gas, Agent Orange, or PCBs. The DoD has not identified Fort McClellan as a location where Agent Orange was used, tested, or stored. Although the Veteran submitted an article that an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston was involved with PCBs, no operations related to PCBs were reported at Fort McClellan. Regarding nerve gas, the Veteran submitted a newspaper article that stated that operations around Fort McClellan included the incineration of nerve gas; however, the Veteran has submitted no evidence that nerve gas was used in basic training at Fort McClellan during her period of service in 1972. In consideration of the foregoing, new and material evidence has not been received to reopen a claim of service connection for diabetes mellitus. While new medical evidence has been received, the evidence is cumulative or redundant of the evidence of record at the time of the last final denial of the claim. Therefore, the evidence is not new and material evidence. Other than the alleged use of Agent Orange in the gas chamber, the Veteran has not provided any evidence of her exposure to Agent Orange at Fort McClellan in 1972. She has submitted articles claiming that Agent Orange was used as a defoliant at Fort McClellan. However, in September 2018, the RO was informed that the DoD has not identified Fort McClellan as a location where Agent Orange was used, tested, or stored. Moreover, a June 2005 response to a Personnel Information Exchange System request to the National Personnel Records Center previously reported that there were no records of the Veteran’s exposure to herbicides. By itself or when considered with the evidence previously of record, none of the evidence submitted since November 2006 relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for diabetes mellitus and does not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim of service connection for diabetes mellitus. The requirements to reopen this claim have not been met, and the appeal must be denied. (Continued on the next page)   As such, the Board finds that new and material evidence sufficient to reopen the appellant’s claim for service connection for diabetes mellitus has not been submitted. Until the Veteran meets her threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.