Citation Nr: 21011377 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-14 806 DATE: March 1, 2021 ORDER Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, is denied. FINDING OF FACT The Veteran’s diagnosed diabetes mellitus did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In an August 2019 decision, the Board denied the Veteran’s service connection claim on appeal. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court vacated the Board’s August 2019 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by not addressing whether the Veteran was entitled to service connection on a direct basis. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes Mellitus The Veteran seeks entitlement to service connection for diabetes. Specifically, the Veteran asserts that he developed diabetes due to exposure to herbicides. The evidence of record includes the Veteran’s service treatment records (STRs). Those records are absent any complaints or treatment related to diabetes. The STRs do include a September 1963 enlistment and a July 1966 separation examination, both noting negative urinalysis findings for sugar or albumin in urine and showing the Veteran denied the same. A review of the Veteran’s military personnel records show he served in Korea from October 1964 to October 1965. Post-service evidence includes VA medical records showing that the Veteran was diagnosed with adult onset diabetes mellitus in October 2013. In a March 2014 memorandum, VA issued a formal finding of lack of information for a claim of Agent Orange exposure. At a March 2019 Board hearing, the representative asserted that between October 1964 and October 1965, the Veteran was assigned to the 1st Missile Battalion, 42nd Artillery in the DMZ in Korea. The representative further noted the Veteran had asserted that herbicides had been used in the area where he was stationed which was prior to the presumptive dates. The Veteran testified that 3 to 4 times per week he traveled to the DMZ with senior officers and that there was a lack of foliage near the perimeter. The Veteran also testified that he was told herbicides were sprayed along the DMZ at that time by his superiors. In this regard, the Veteran stated that he did not know what it was called, “they didn’t say what it... I don’t know if it’s called Agent Orange then or not.” The Veteran further stated that he “saw it one time up there.” The Veteran further testified that a friend who had been in Vietnam and Korea told him that his doctor stated he was given a double shot of Agent Orange. With regard to his current diagnosis for diabetes, the Veteran testified that he was first diagnosed approximately four years prior. In a November 2020 Brief, the representative stated that the Veteran’s lay statements directly established that he was exposed to “Agent Orange and/or other herbicide agents.” Accordingly, the representative asserted that the Veteran was entitled to the presumption of service connection. In support of this proposition, the representative cited a nonprecedential Court decision, Winkler v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1855, 2012 WL 3667971, which held that the Board erred by not considering the probative value of the Veteran’s lay statements as to exposure while serving aboard a Navy ship off the coast of Vietnam. The representative noted that the Veteran had testified that he witnessed herbicides being used to clear foliage, and that he was told by superior officers and a doctor that herbicides were being used. Accordingly, the representative asserted that the Veteran has presented evidence of actual exposure of herbicides during service. The representative further cited an article titled, “The Agent Orange Controversy in the Republic of South Korea.” In this regard, the representative noted that the article stated that in late 1963, herbicides were being used in selected areas such as observation and guard posts, and that by 1965 herbicides were “on hand and capable of use,” supporting the Veteran’s lay statements. The Board notes that although the representative stated that the article was attached, no such article was submitted in connection with the Brief. However, the cited article was able to be found while running a cursory online search. See https://www.researchgate.net/publication/311877931_The_Agent_Orange_Controversy_in_the_Republic_of_South_Korea. The article notes that “[r]ecords and publications confirmed that the only use of the tactical herbicides Agents Orange and Blue in Korea occurred in April – June 1968 on the Korean Demilitarized Zone (DMZ).” The article further noted that a small amount of commercial herbicide was used in late 1963 in select areas such as observation posts and guard posts to clear fields of fire. In 1965, it was noted that the 2nd US Infantry Division requested an investigation into the use of herbicides and noted that commercial herbicides were already on hand and capable of use. In 1966, the article noted historical records showing that various methods of clearing vegetation were considered, including chemicals, mechanical devices and hand labor, and that the commercial herbicide 2, 4-D was recommended for limited vegetation control on the DMZ in 1967. In addition, the representative cited a 2014 Board Decision which granted entitlement to service connection for diabetes. A review of that Decision shows that service connection was granted on the basis that the evidence was found to be in equipoise whether the Veteran was exposed to herbicides while serving in Korea along the DMZ. Lastly, the representative asserts that if the Board could not conclude that the Veteran was exposed to Agent Orange, then his testimony provided evidence of “some herbicide” exposure, which included certain chemical agents. After a review of the evidence of record, the Board finds that service connection for diabetes is not warranted. While the Veteran served during the Vietnam Era, the evidence does not show that he served in the Republic of Vietnam. Importantly, neither the Veteran nor his representative have asserted that he served on the land mass or in the coastal waters of Vietnam. Instead, the Veteran has broadly claimed exposure to herbicides during service in Korea due to traveling to the DMZ 2 to 5 days per week and being told that herbicides were being used. Effective February 24, 2011, VA amended its regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, VA added a new paragraph to 38 C.F.R. § 3.307 that provides that a Veteran who served between April 1, 1968, 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 that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iv). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, the veteran’s medical records, and all pertinent medical and lay evidence. The Board notes that the Veteran’s periods of active duty service were from September 1963 to September 1966, and he was stationed in Korea from October 1964 to October 1965. Regulations provide that a Veteran is presumed to have been exposed to herbicides in Korea if the evidence shows he was in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968, and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). As the evidence does not show that the Veteran served in Korea between April 1, 1968, and August 31, 1971, service connection on a presumptive basis as due to in-service exposure to herbicides/Agent Orange in Korea is not warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. In this regard, the Veteran has not asserted exposure to herbicides during service other than due to being in areas he states were sprayed with herbicides. In addition, the Veteran stated that he once saw herbicides being sprayed. The Board does not find this statement competent or credible. First of all, the Veteran has not been shown to be competent to identify whether a herbicide agent was used. Additionally, while the Veteran testified that herbicides were sprayed along the DMZ and that he once saw herbicides being sprayed, during his March 2019 Board hearing, when asked what substance his superiors told him were being used, he testified, “they didn’t say what it … I don’t know if it’s called Agent Orange.” Accordingly, the Veteran has provided conflicting statements as to what he was told was being used along the DMZ while he was stationed in Korea. The Veteran also asserted that a fellow service member who had served in Vietnam and Korea told him that his doctor stated he had gotten a double dose of Agent Orange. However, the Board finds the Veteran’s lay statement speculative. With regard to statements attributed to the fellow service member, such statements fail to address how, when and where the service member might have been exposed to herbicides in Korea, or how this applied to the Veteran other than a general implication that herbicides were at some point used in Korea. Accordingly, with regard to whether the Veteran was directly exposed to herbicides during service, the Board finds his lay statements speculative in nature and of little probative value. The Board recognizes the representative’s assertion that the Veteran’s lay statements are supported by a nonprecedential case in which the Court held that the Board erred by not considering the probative value of lay statements as to exposure to herbicides while serving aboard a Navy ship off the coast of Vietnam. However, the cited Blue Water Navy case dwelt with exposure to herbicides from an area where the presumption applied; i.e. in an area where herbicides were known to have been deployed. Therefore, the cited case is entirely distinct from the current claim before the Board in which the Veteran is asserting exposure to herbicides in an area where the presumption does not apply. The Board also recognizes the representative’s assertion that the article “The Agent Orange Controversy in the Republic of South Korea,” supports the Veteran’s lay statements that he was exposed to herbicides during his period of service in Korea. The Board disagrees. Specifically, the article states that “[r]ecords and publications confirmed that the only use of the tactical herbicides Agents Orange and Blue in Korea occurred in April – June 1968;” i.e. during a time period after the Veteran’s served in Korea. The article further noted that a small amount of commercial herbicide was used in late 1963 in selected areas such as observation posts and guard posts to clear fields of fire. However, the Veteran served in Korea after this time period, and he stated that he travelled to the DMZ to bring his superiors to a missile site. Accordingly, there is no indication that the Veteran came into direct contact with any commercial herbicide that had been used as described in the article. Finally, the representative noted that by 1965, the article noted that herbicides were “on hand and capable of use.” However, a review of the article shows that in 1965, the 2nd US Infantry Division had requested an investigation into the use of herbicides and noted that commercial herbicides were already on hand and capable of use. The article does not state that commercial herbicides were being used, and if they were being used it does not state where or how they were deployed. Furthermore, the article noted that in 1966, historical records showed various methods of clearing vegetation were considered, including chemicals, mechanical devices and hand labor, and that the commercial herbicide 2, 4-D was recommended for limited vegetation control on the DMZ in 1967, at a time after the Veteran served in Korea. Therefore, according to the cited article, it is unclear what method of vegetation removal was used in areas where the Veteran reported clear fields. Accordingly, as the cited article does little more than suggest that commercial herbicides might have been used in a limited capacity and in undisclosed locations, it does not support the Veteran’s lay statements that herbicides were used in locations where he would have come into direct contact. The Board further recognizes the representative’s assertion that an April 2014 Board Decision supports the Veteran’s lay statements. In this regard, the Board notes that prior Board decisions are not precedential, and “previously issued Board decisions will be considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303. “Each case presented to the Board will be decided on the basis of the individual facts of the case.” Id. Turning to the April 2014 Board Decision, the decision is based on a different factual predicate than the facts of this Veteran’s case. For example, the Veteran in that case had a different MOS, served with a different unit, and was in Korea during different periods of time. A review of the April 2014 Decision shows that the Veteran’s military occupational specialty (MOS) was military policeman with the 2nd Infantry Division, the same unit noted in the article “The Agent Orange Controversy in the Republic of South Korea, and that Veteran served in Korea from October 1965 to April 1966, and was stationed near the DMZ. Further, with regard to the current case before the Board, the Veteran has not asserted that he assisted in transporting containers containing herbicides, or that he came into direct contact with herbicides as they were being deployed, as did the Veteran in the April 2014 Board decision. Accordingly, the factual predicate in granting the Veteran’s claim in the April 2014 Decision was substantially different from the factual predicate currently before the Board. Therefore, the Board finds the prior Board decision referenced and submitted has no bearing on this case, as the decision therein was not based on the facts specific to the Veteran’s case at hand. Accordingly, the Board finds that the preponderance of the evidence of record does not show that the Veteran was directly exposed to herbicides at any time during service. The Board has further considered whether service connection is otherwise warranted on a direct basis. However, a review of the Veteran’s STRs does not evidence any complaints or treatment related to diabetes, and the first evidence of record showing treatment for diabetes occurs in October 2013, some 47 years following separation from service. Importantly, neither the Veteran nor his representative have asserted that his diabetes is directly related to service other than due to herbicide exposure. Accordingly, the Board finds that entitlement to service connection on a direct basis other than due to herbicide exposure is not warranted. Lastly, the Board recognizes the representative’s assertion that a remand is warranted in order to fulfill VA’s duty to assist the Veteran in development of his claim. Specifically, the representative asserted that verification or additional information from the Joint Services Records Research Center (JSRRC) should be provided. The Board finds such assertion without merit. In this regard, the Board notes that in a September 2014 letter, VA advised the Veteran of the requirements necessary for acknowledgement of exposure to Agent Orange, and requested the Veteran to provide certain information. The Veteran did not respond to the September 2014 letter, and in a March 2015 memorandum, VA issued a formal finding for a lack of information for a claim of Agent Orange exposure. VA’s duty to assist in developing the facts and evidence pertinent to his claim is not a one-way street, and it is his responsibility to work with VA with regard to development. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, a review of the memorandum shows that it cited the Veteran’s dates of service in Korea (which the Board acknowledges includes a typographical error; 10/27/1994 to 10/15/1965). The memorandum also cites the Veteran’s dates of service 9/11/1963 to 9/14/1966. Accordingly, although the memorandum contains a typographical error, the document clearly shows that the Veteran’s dates of service, including his service in Korea, were considered when determining that there was a lack of information to submit to the JSRRC and/or the National Archives and Records Administration (NARA). Additionally, since the March 2015 memorandum, the only additional information provided by Veteran’s includes speculative lay statements that he was told herbicides were used along the DMZ. As noted above, while the Veteran has reported having been told such, he also stated, “they didn’t say what it … I don’t know if it’s called Agent Orange.” Accordingly, the Board finds that a remand for the sole purpose of asking the JSRRC and/or NARA to verify speculative statements would serve no useful purpose. The Board further acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for diabetes, but finds no such examination was required because there is no evidence indicating that his diabetes is related to service. 38 C.F.R. § 3.159(c). Therefore, the Board finds that the duty to assist has been fulfilled in this matter. (Continued on the next page)   Accordingly, the Board concludes that the preponderance of the evidence is against a finding of exposure to herbicides during service or that the Veteran’s diabetes is otherwise related to service. As such, the second and third Shedden requirement have not been met. In arriving at this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against a finding of entitlement to service connection; the claim is therefore denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.