Citation Nr: 21022087 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-12 928 DATE: April 14, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during active military service. 2. Diabetes mellitus type II manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II have not been met. 38U.S.C. §§1101, 1110, 1112, 1113, 1116, 1137, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision denying this appeal in December 2019. In November 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision for action consistent with a Joint Motion for Remand (JMR). 1. Entitlement to service connection for diabetes mellitus type II The Veteran contends that he was exposed to herbicides while stationed at the Korat Royal Thai Air Force Base from March 1967 to March 1968. He contends that his diabetes mellitus type II is due to that exposure. Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability based on a presumption that certain chronic diseases manifest to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Finally, service connection can be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4D; 2,4,5T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations during certain time periods will be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii)(v). If exposure is not presumed, exposure may also be established on a facts-found basis. If a veteran is presumed or found to have been exposed to herbicide agents, certain disabilities will be presumed to be causally related to such exposure. 38 C.F.R. § 3.309(e). Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense, VA recognizes that herbicide agents, including Agent Orange, were used at certain times and places at some military bases in Thailand during the Vietnam Era between January 1962 and May 1975. Current VA policy provides for special consideration of herbicide agent exposure for veterans whose duties placed them on or near the perimeters of certain designated Royal Thai Air Force Base in Thailand (RTAFBs) during the Vietnam Era. Specifically, if a Veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAB as an Air Force security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran’s military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence, then herbicide agent exposure should be conceded on a facts-found or direct basis. See U.S. Dep’t of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010); see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). A January 2016 VA treatment record reflects that the Veteran has a current diagnosis of diabetes mellitus type II. As such, a current disability has been shown. Concerning an in-service injury or disease, the Veteran has not alleged, and the evidence does not show, that he was diagnosed with diabetes mellitus in service or treated for any symptoms that are indicative of the disease. The Veteran's January 1969 separation examination noted that his endocrine system was normal and that his urinalysis was negative for albumin or sugar, and he denied any symptoms on the corresponding Report of Medical History. Instead, the Veteran's sole argument concerning an in-service injury or disease is that he was exposed to herbicide agents during his period of service. The Veteran does not allege, and his personnel records do not reflect, that he at any point served within Vietnam. As such, the Veteran may not be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). However, as noted, herbicide agent exposure may still be established on a facts-found basis. To this end, the Veteran has argued that he was exposed to herbicide agents while serving at Korat RTAFB, stating simply that he patrolled the perimeter of the base where herbicide agents were used. Personnel records do establish that the Veteran served at Korat RTAFB during the Vietnam Era. However, the Veteran's statement that he patrolled the perimeter of Korat RTAFB is not consistent with the other evidence of record concerning the nature of his service. The Veteran's DD 214 reflects that his military occupational specialty was an aircraft maintenance specialist, and that he completed several courses in aircraft maintenance. It is unclear why the Veteran, as an aircraft mechanic, would be tasked with patrolling the perimeter of the base or taking part in other security activities, particularly when there would have been other individuals stationed at the base with military occupational specialties specifically dedicated to security. The Veteran's performance reviews from his period of service at Korat RTAFB also do not reflect that he was tasked with patrolling the perimeter of the base, or indeed that he participated in any security or other activities which would have required him to spend significant time at the perimeter of the base. The Veteran's performance evaluation for the period from December 1966 to December 1967 notes that he was an assistant crew chief, and that his duties included assisting the crew chief with all phases of aircraft maintenance, maintaining aircraft, requisitioning aircraft parts, and coordinating the status of aircraft and maintenance of aircraft. At no point does the evaluation indicate that the Veteran was tasked with patrolling the base perimeter, that he engaged in other security-related tasks, or had any assignments which required a sizeable amount of time to be spent at the base perimeter. If patrolling the perimeter was in fact one of the Veteran's regular duties, or one of his duties at all, it would be expected that this would in some way be noted on his performance reviews. Based on the foregoing, the preponderance of the evidence, in particular the performance evaluation which includes a description of the Veteran's duties while he was stationed at Korat RTAFB, outweighs the Veteran's bare and unsupported assertion that he regularly patrolled the perimeter of Korat RTAFB. Therefore, the evidence does not show in-service exposure herbicide agents, such as Agent Orange, on a facts-found basis. In sum, the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents during his period of service at Korat RTAFB. While the Veteran has asserted that he was exposed to herbicide agents while patrolling the base perimeter, his assertions that he patrolled the perimeter are significantly inconsistent with his occupational specialty as an aircraft mechanic and his duties while stationed at Korat RTAFB as described in his performance review. Further, he is not competent to testify as to the chemical make-up of any chemicals sprayed at the perimeter. Jandreau, 492 F.3d 1372. Service connection on a direct basis is not warranted. As indicated, the Veteran has not alleged, and the evidence does not show, a diagnosis of diabetes mellitus in service or treatment for any symptoms that are indicative of the disease. Treatment records reflect the Veteran was diagnosed with diabetes mellitus in approximately Apri 2012 but contain no opinions as to its etiology. There also is no competent medical evidence indicating that the Veteran's diabetes mellitus is otherwise due to his military service generally. While the Veteran has asserted that there is a causal relationship between his diabetes mellitus and service, he is not competent to link his diabetes mellitus which onset many years after military service, to any aspect of his military service, as he does not have the medical knowledge and training to provide such an etiological opinion. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Further, there is no competent medical evidence indicating the Veteran's diabetes mellitus is in any way related to his period of service. As there is no evidence of an in-service injury or disease, or of a nexus between the current diabetes mellitus and service, service connection for diabetes mellitus type II is not warranted. 38 C.F.R. §§ 3.102, 3.303. Finally, diabetes mellitus is considered to be a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the Veteran has not alleged, and the medical evidence does not show, that diabetes mellitus was diagnosed in service, manifested to a compensable degree within one year following separation, or that he has experienced continuous symptoms since service. The Veteran's separation examination noted that his endocrine system was normal and that his urinalysis was negative, and he denied any history of albumin or sugar in his urine on a correspondence report of medical history. Post-service treatment records do not reflect a diagnosis of diabetes mellitus type II until approximately Apri 2012, which is well after the Veteran's separation. As such, service connection based on the presumption in favor of chronic diseases is not warranted. 38 C.F.R. § 3.309(a). The preponderance of the evidence weighs against a finding that the Veteran's diabetes mellitus is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.