Citation Nr: 21013888 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-33 556A DATE: March 10, 2021 ORDER Entitlement to service connection for diabetes mellitus is denied. FINDING OF FACT The preponderance of the evidence is against finding that diabetes mellitus began during active service, or is otherwise related to an in-service injury or disease. 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, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to May 1970 with subsequent service in the United States Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in August 2017 instructing the RO to contact the appropriate authorities to verify the dates of the Veteran’s ACDUTRA service from 1970 to 1992. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained outstanding military personnel and service treatment records. The Board finds the RO substantially complied with the August 2017 remand directives. Entitlement to service connection for diabetes mellitus The Veteran contends that he developed diabetes mellitus as a result of his exposure to herbicide agents while in service. During the October 2015 Board hearing, the Veteran testified that he was at Camp Drum New York in 1971 for two weeks at the site where Agent Orange was disposed. He also stated that he was with the same unit in Tampa Florida for almost 20 years, and that Agent Orange was used on the bombing range in Avon Park, Florida. Therefore, he argues that his exposure to Agent Orange or a herbicide agent in Camp Drum or Avon Park caused his development of diabetes. The Board notes that the Veteran’s record of assignments notes that he was assigned as a cook with the 810th MP Company in Tampa, Florida while in the United States Army Reserves. The Veteran does not contend, and the record does not reflect the Veteran was diagnosed with diabetes mellitus during active duty service or within a year of separation from service. He also does not assert that he was in Vietnam. Rather the Veteran contends he was exposed to Agent Orange during a period of ACDUTRA causing him to later develop diabetes mellitus. The Board concludes that the preponderance of the evidence is against finding that diabetes mellitus began during active service or is otherwise related to an in-service injury or disease. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Reserve and National Guard service generally means active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c). That usually includes two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). With respect to Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest to a degree of 10 percent or more within a specified time after separation from service-do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, “if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.”). In determining whether service connection is warranted for a disability, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Post-service treatment records indicate the Veteran has a current diagnosis of diabetes mellitus. See e.g., February 2014 VA Primary Care Note; September 2017 Jay Care Medical Center records; March 2019 VA Inpatient Note. The Veteran served in the U.S. Army Reserves from 1970 to 1992. Records from the U.S. Army Reserve service show that the Veteran was first diagnosed with diabetes mellitus, type II, in December 1989, at which time he was prescribed Glyburide. Although the Veteran’s service personnel records were obtained from the U.S. Army Reserve, the Veteran’s exact periods of ACDUTRA were unclear. Therefore, the Board remanded to verify the Veteran’s period of ACDUTRA service. In February 2018, the RO recorded that a request was made to the Federal Records Center in January 2018 to obtain the Veteran’s records. A service period report was generated which showed the Veteran was in the Army Reserve from July 1970 to November 1996. See September 2019 Military Personnel Record/DPRIS Response/Service Period Report. Military personnel records do not show the Veteran was in active duty service during the diagnosis of his diabetes in December 1989. The records also did not show service in or near the Republic of Vietnam. There is no evidence included in the record showing the Veteran was exposed to Agent Orange during his active duty service. The Board takes judicial notice of reports that indicate that as late as October1959 herbicides were used at Fort Drum in an area located at an artillery impact area where ground access was not possible. In addition, herbicides were used in Avon Park Air Force Range as late as April 1967. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp. However, no documents have been presented demonstrating that herbicides such as Agent Orange were used during the period of time the Veteran alleges that he was at Fort Drum (1971) or during a subsequent period when he reportedly was at Avon Park. Therefore, service connection is not warranted on a presumptive basis. The Board notes that VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that there is no evidence of a diabetes during active service, and the evidence does not indicate the Veteran’s diabetes manifested itself within one year after separation from active service. Further, there is insufficient competent evidence otherwise suggesting a link between the Veteran’s diabetes and his service. The Veteran’s assertions alone are insufficient. Therefore, despite the low bar set by McLendon, a VA examination is not warranted. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107 (b). Accordingly, the claim is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.