Citation Nr: 21015156 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-40 819 DATE: March 16, 2021 ORDER Entitlement to service connection for diabetes mellitus, including as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran served during the Vietnam War era, but the preponderance of the evidence is against finding that his service during that time included duty in or visitation to the Republic of Vietnam or Thailand. 2. The preponderance of the evidence is against finding that the Veteran has diabetes mellitus that began during or within one year of his active service, or is otherwise related to an in-service event, injury or disease, including exposure to Agent Orange or any other herbicide agent. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1965 to October 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in January 2019. Service connection The Veteran contends that he is entitled to service connection for diabetes mellitus due to exposure to herbicides. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), to include diabetes mellitus. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may also be demonstrated for a disease diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, diabetes mellitus and certain heart disorders shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). All Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 511. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 claimant. Presumptive service connection - herbicide exposure The Veteran argues that the VA has conceded Agent Orange/herbicide exposure from his service in Vietnam which would entitle him to the presumption of service connection for diabetes mellitus by way of collateral estoppel. The Veteran’s DD Form 214 and service records show no foreign service. In February 2005, the Veteran filed a VA Form 21-526 Veteran’s Application for Compensation and/or Pension. On question A-15a, the Veteran was asked if he served in Vietnam. The Veteran answered “no.” On question B-5a, the Veteran was asked if he was exposed to Agent Orange or other herbicides. The Veteran answered “no.” The Veteran submitted a statement in March 2011 where he claimed to have also performed temporary duty assignments (TDY) in brown waters of Southeast Asia and Dominican Republic. In the same statement, the Veteran also stated that he believed he used Agent Orange around fence lines and fire hydrants at Guantanamo Bay, Cuba and Panama. The RO produced a formal memorandum dated November 1, 2011 that outlined the steps and procedures, including submitting a request to the Joint Service Records Research Center, it took to determine if the Veteran had service in Vietnam. The RO was unable to find service in Vietnam. The Veteran also contends he served in Vietnam for the Central Intelligence Agency (CIA). However, there are no records to reflect any service in Vietnam. The CIA responded to a records request in a May 2015 letter. In that letter, the CIA performed a record search which would reveal an openly acknowledged CIA affiliation. The CIA did not locate any records. The CIA stated it was able to neither confirm nor deny the existence or nonexistence of records responsive to the request. The Veteran was granted a 100 percent disability rating for posttraumatic stress disorder (PTSD) with major depressive and unspecified anxiety disorder from a rating decision in December 2020. The Veteran contends that in granting these benefits, the VA conceded that he had service in Vietnam and collateral estoppel applies. However, the December 2020 rating decision did not find that the Veteran served in Vietnam, and the grant of the benefit was not based on confirmed Vietnam service or exposure to herbicides. The record reveals no evidence of service in Vietnam other than the statements made by the Veteran. Additionally, the VA has not conceded that the Veteran served in Vietnam. Thus, collateral estoppel does not apply. Additionally, the Veteran has pointed to a letter from a VA doctor from June 2016, Dr. J.K. In the June 2016 letter, Dr. J.K. stated that he reviewed the Veteran’s military history and found the Veteran served in the US Navy from 1965-1969 and was on the ground in Vietnam. Dr. J.K. made the conclusion that since the Veteran was on the ground in Vietnam, he was exposed to Agent Orange. The Board finds that the June 2016 letter lacks any probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). First, Dr. J.K. listed the year 1969 when the Veteran left service, which is inaccurate. Second, there are no records that show the Veteran served in Vietnam, and this renders Dr. J.K.’s statement that he reviewed the Veteran’s military history questionable. The Veteran also submitted statements from his spouse, B.B., in June 2014 and a fellow servicemember. R.S., dated July 2014. R.S. stated that he and the Veteran went on TDY missions to multiple locations while stationed to the USS Alacrity, including Fort Lauderdale, Florida, Guantanamo Bay, Cuba, Caribbean, Puerto Rico, and Panama. R.S. did not list Vietnam and/or Southeast Asia as one of the locations he went to with the Veteran. R.S. also stated that he and the Veteran were not always sent on the same missions and that the Veteran “could have been sent to Southeast Asia.” B.B. stated that she had been married to the Veteran for 13 years. B.B. went on to state that the Veteran shared some experiences with her from the military, but the Veteran had a hard time recalling details. However, B.B. stated that the Veteran told her that he was in the Cambodia area and went on three TDY assignments lasting 30 days. In the January 2019 hearing, the Veteran testified that while on active service he was stationed to the USS Alacrity (MSO-520) in Charleston, South Carolina. The Veteran also testified that he was sent on TDY three times to Vietnam on behalf of the CIA between July 1968 and September 1968. The Veteran claimed to have signed a no-fault release from the U.S. Government. The Veteran testified that he was not exactly sure of their location, but stated he was in Vietnam or Southeast Asia. The Veteran stated that on his missions to Southeast Asia, his group would patrol rivers in small wooden boats. His group would perform search and seizure missions looking for weapons and ammunition. The Veteran and lay witnesses are competent to report that he was present in Vietnam and that he performed TDY missions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board must determine the credibility of the testimony. To start, there is no reason to doubt the credibility of B.B.’s statements. However, B.B. did not state the Veteran was in Vietnam or exposed to herbicides or Agent Orange. Additionally, B.B.’s statement itself stated that the Veteran had issues recalling details from service. Thus, the statements made by B.B. have little probative value. The Board does not question whether R.S. served together in the US Navy. However, the statements made by R.S. do not comport with the evidence of record. In addition, R.S.’s statement so not corroborate any service in Vietnam by the Veteran or exposure of herbicides. The lay statement by R.S. also has little probative value to the claim at issue. The Board finds the Veteran’s statements in the record do not contain supporting evidence that the Veteran served in Vietnam or Southeast Asia. There are no service records, service treatment records, or any other evidence the Veteran served in Vietnam. Additionally, the Veteran contradicted his own statements in the 2005 VA Form 21-526 when he denied service in Vietnam and exposure to Agent Orange or other herbicides. The inconsistency and implausibility of the Veteran’s own claims provides little probative value. More probative value is given to the documented evidence on record. Thus, the Board finds the Veteran is not entitled to presumptive service connection due exposure to herbicides or Agent Orange. However, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to direct service connection for diabetes mellitus As stated above, the Veteran contends he is entitled to service connection for diabetes mellitus due to herbicide exposure. However, there is no confirmed service in Vietnam, and the presumption to service connection for diabetes mellitus does not apply. Thus, the question for the Board is whether the Veteran’s diabetes mellitus 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 current diagnosis of diabetes mellitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of diabetes mellitus began during service or is otherwise related to an in-service injury, event, or disease The Veteran’s service treatment records are negative for any complaints, treatment, or diagnoses of diabetes mellitus, nor is there evidence of diabetes within one year of separation from service. The evidence shows it was over 30 years after separation from active duty service that diabetes appeared in post-service treatment records at a VA medical center. The Veteran reported for a VA examination in February 2020. The examiner provided a positive nexus opinion for the Veteran. However, the opinion was based on the premise that the Veteran served in Vietnam and was exposed to herbicides or Agent Orange. The Board remanded the claim in September 2020 due to the opinion being based on factual inaccuracies. See Reonal, 5 Vet. App. at 461. As a result of the September 2020 remand, the Veteran was afforded a VA record review and opinion in November 2020. The examiner found that it is clear the Veteran did not have diabetes while in service, at separation, or until over 30 years after service. The examiner ultimately opined that the Veteran’s diabetes was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s DD Form 214 lacks evidence of Vietnam service and there is no available corroboration of Vietnam service. Except for the Veteran's own statements, there is no competent evidence that attributes his diabetes mellitus to service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and credentials to provide a medical opinion as to the etiology of complex medical diseases such as diabetes mellitus. Jandreau, 492 F.3d at 1376-77. Based on the foregoing, the Board finds that the Veteran's diabetes mellitus was not manifested in and has not shown to be related to his active duty service. There is no doubt to be resolved; therefore, the claim of entitlement to service connection for diabetes mellitus must be denied. In reaching the above determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55-56. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.