Citation Nr: 21008934 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-11 285 DATE: February 18, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran was stationed in Korea from November 1965 to December 1966, including service along the Demilitarized Zone (DMZ). 2. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus had its onset in service, is otherwise related to service, or manifested within a year of separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. In October 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the Regional Office (RO). A copy of the transcript is of record. The Board remanded the Veteran’s claim for additional development in January 2018 and March 2020. The completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for diabetes mellitus The Veteran contends his diabetes mellitus, type II is related to exposure to herbicide agents during service along the Korean DMZ. The Veteran has reported that during his service in along the DMZ that the area was devoid of vegetation and that he saw a truck spraying a substance in the form of a vapor that he believes was an herbicide agent. See 2016 Hearing Testimony pp. 5-6. In his March 2014 VA Form 9, the Veteran stated that “[he] at least twice witnessed spraying of herbicides to keep down vegetation. In addition, [his unit] made repeated searches/sweeps through areas sprayed with the herbicide.” The Veteran has also submitted an article by Robert Dowd regarding a Former U.S. Army Captain P.S. and testimony that P.S. provided before the Korean National Assembly in 2011. The transcript attached to the article states that the Former U.S. Army Captain testified that a Board decision stated the following: “[a] letter from Department of the Army, Center for Unit Records Research, dated July 23, 2008 notates and verifies that herbicides were used in Korea from 1962 to 1970 from the DMZ line to I Corp Headquarters and the 1st ROK Army sprayed with hand sprayers and trailer mounted apparatus during that time period.” This document further states that “herbicides orange, blue and Monuron [SIC] were used in Korea from 1962 to 1970.’” The Veteran has also submitted part of a November 2009 rating decision stating that “a copy of the unit history for the 335th Maintenance Battalion notes that herbicides, orange, blue and monuron [SIC] were used in Korea from 1962 to 1970 from the DMZ line to I Corp Headquarters and the 1st ROK Army.” Certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The types of diseases for which service connection may be presumed to be due to an association with herbicide agents include Diabetes mellitus. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6) (ii), 3.309(e). Unfortunately, the Board finds that the evidence of record weighs against a finding that the Veteran was exposed to herbicide agents during his period of service, including his service in the Korean DMZ. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id.; 38 C.F.R. § 3.313; see also Haas v. Peake, 525 F.3d. 1168, 1174 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009). Here, the Veteran has not asserted that he served in the Republic of Vietnam either on land or in the waters offshore Vietnam. Rather, the Veteran asserts that he was exposed during service in Korea between November 1965 to December 1966. A Veteran who has active service in or near the Korean DMZ, during the period beginning on September 1, 1967, and ending on August 31, 1971 is entitled to a presumption of herbicide exposure. 38 U.S.C. § 1116B. Unfortunately, the evidence does not demonstrate, nor does the Veteran contend, that he served in or near the Korean DMZ during the presumptive period; accordingly, presumptive exposure to “herbicide agents” is not warranted. Id. Even if the regulations for herbicide agent exposure on a presumptive basis are not met, a claimant may alternatively establish herbicide agent exposure on a direct basis from the evidence of record. 38 U.S.C. § 1113 (b). The Agency of Original Jurisdiction (AOJ) undertook efforts to verify whether the Veteran was exposed to herbicide agents during his period of service. Based upon the information provided by the Veteran and his personnel records, a search was made through the Defense Personnel Records Information Retrieval System (DPRIS) regarding the 1966 unit history submitted by the 3rd Battalion, 23rd Infantry. The DPRIS response stated that the documents reviewed indicate that the unit participated in exercises and training along the DMZ. It was noted that in April 1966, the 3rd Battalion, 23rd Infantry moved across the Imjin River to perform surveillance and anti-infiltration in a sector along the DMZ. The unit history, however, did not document the use, storage, spraying or transporting of Agent Orange or other tactical herbicides in 1966. In November 2020, an additional search was conducted by the Veterans Benefits Administration, Compensation Service, Records Research Center that included the Veteran’s period of service from in November 1965. The 1965 unit histories submitted by the 3rd Battalion, 23rd Infantry also did not document the use, storage, spraying or transporting of Agent Orange or other tactical herbicides during the Veteran’s period of service. Regrettably, the Board finds that the evidence of record does not support a finding that the Veteran was exposed to Agent Orange or other herbicide agents during his period of active service. While the evidence of record is clear that the Veteran’s service in and around the DMZ from November 1965 to December 1966, the Veteran’s personnel records shows that his active duty service in the DMZ ended approximately 9 months prior to the documented use of herbicide agents in Korea. The Board finds the research conducted through DPRIS and by the Records Research Center to be probative regarding the Veteran’s exposure to herbicides during his period of service, including his service in the DMZ from November 1965 to December 1966. The reports state that the unit histories of the Veteran’s designated unit in Korea, the 3rd Battalion, 23rd Infantry, did not report the use, storage, spraying or transporting of Agent Orange or other tactical herbicides during the Veteran’s period of service. As such, the Board finds this to be probative evidence that the Veteran was not exposed to herbicide agents during his period of service in Korea. Unfortunately, the evidence in support of the Veteran’s claim is afforded no probative weight. Although the Veteran is competent to relate his experiences in service, including having seen vehicles spraying an unknown vaporous substance and observing that the area around the DMZ lacked foliage, the Veteran is not competent to identify Agent Orange or herbicide agents because such medical and scientific determinations require education, training and experience that the Veteran does not possess. Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). Moreover, the Veteran himself has indicated that he is not competent to provide such a report. On the Veteran’s claim for service connection received in February 2005, he indicated that he was unsure if he was exposed to Agent Orange or other herbicides. The Veteran checked the boxes for yes and no, and wrote in a question mark. When identifying the area of his potential exposure, he wrote his infantry service in Korea. The Board finds the Veteran’s report credible that he believed he may have been exposed to herbicide agents during his service in Korea, but that he did not have firsthand knowledge of whether such an exposure occurred or not. The Board finds that the portion of the November 2009 rating decision submitted by the Veteran is of no probative weight. Regional Office decisions are not binding on the Board. To the extent that this rating decision was implementing a Board decision, prior Board decisions are binding only on the specific case decided, and the decision provided has no precedential value in the instant case. 38 C.F.R. § 20.1303. Each decision by the Board is necessarily based on review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants such as the Veteran who may appear to be similarly placed. The prior Board decision is entitled to no probative weight in determining whether the Veteran was exposed to herbicide agents in Korea. The Board also finds that the article regarding Former U.S. Army Captain P.S. and his associated testimony is not of probative value with regard to the Veteran’s claim. Initially, the Board notes that the article and testimony do not discuss the specific facts of the Veteran’s case or document that the Veteran himself was exposed to herbicide agents in the DMZ. Further, the testimony provides that Former U.S. Army Captain P.S. does not have personal knowledge regarding use of herbicides in the DMZ outside of the dates authorized by statute. Rather, the testimony reports that an AOJ decision, based upon a Board decision, reported the presence of herbicide agents in Korea from 1962 to 1970. As noted above, prior Board decisions are binding only on the specific case decided, and the decision provided has no precedential value in the instant case. 38 C.F.R. § 20.1303. A news article regarding another Veteran’s testimony regarding the contents of a Board decision has no precedential value toward adjudication of appeals by other claimants such as the Veteran who may appear to be similarly placed. In conclusion, the above evidence weighs against a finding that the Veteran was exposed to Agent Orange or other herbicide agents during his service in Korea. Therefore, service connection based on herbicide agent exposure is not warranted. However, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. Unfortunately, the Board also finds that service connection is not warranted for diabetes mellitus on a direct basis. The Veteran’s service treatment records do not show any complaints or treatment for diabetes or symptoms related to diabetes. A January 2006 VA examination reports that the Veteran was diagnosed with diabetes in the mid to late 1990’s, approximately 30 years after separation from active duty service. Other than the Veteran’s reports that his diabetes are due to alleged herbicide exposure in service, none of the medical documents of record indicate any etiological relationship between the Veteran’s diabetes and his period of active service. To the extent that the Veteran has reported his diabetes is due to his period of service, the Board finds that the issue of a relationship to service for post-service diabetes is a complex medical question outside of the scope of lay diagnosis. The complex medical question designation is appropriate because of the time lapse from service to symptom onset and internal disease processes involved. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377 n.4. In addition, the above evidence shows that diabetes did not manifest in service, within the one-year presumptive period for chronic diseases, or for years thereafter. There is also no competent opinion indicating that post-service diabetes may be associated with service and neither the Veteran, nor his representative has alluded to the existence of any such evidence. For the foregoing reasons, the preponderance of the evidence is against this claim. The benefit-of-the-doubt doctrine is therefore not for application, and the service connection claim for diabetes mellitus, type II must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.