Citation Nr: 21026530 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-42 953 DATE: May 3, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and/or other toxins is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents, specifically Agent Orange, and/or other toxins in service. 2. The Veteran's diabetes mellitus did not manifest in service or within the applicable presumptive period and is not otherwise etiologically 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, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1964 to November 1966. The Board of Veterans' Appeals (Board) remanded this matter in January 2015, May 2018, and June 2020. The case has returned to the Board for appellate review. The Veteran is seeking entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure and/or other toxins. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the medical evidence of record does not show complaints, findings, or diagnoses of diabetes during service. The Veteran's diabetes mellitus was demonstrated for the first time in September 2004. Moreover, the medical evidence does not demonstrate that the Veteran had symptomatology of diabetes mellitus continuously from separation. Thus, the evidence does not show any in-service incurrence or manifestation/continuity of the diseases to warrant a direct service connection or service connection under chronic presumption. 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, the issue before the Board is whether the Veteran's diabetes mellitus is caused by the claimed exposure to herbicide agents while he served in Korea from 1965 to 1966 or dioxins from his military occupational specialty (MOS) as a Cook or while building roads. Specifically, the Veteran contends that he was exposed to herbicide agents during his military service in the Republic of Korea. In the alternative, the Veteran contends that he was exposed to dioxins while he served in the 802nd Engineer Battalion (construction), which operated an asphalt plant that built roads and otherwise laid blacktop. Under VA regulation, diabetes mellitus type 2 have been presumptively associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.307 (a)(6), a veteran is presumed to have been exposed to certain herbicide agents, to include Agent Orange, if they served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea, between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, 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). The Department of Defense provided a list of units that have been recognized as having served in areas along the Korean DMZ. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, since diabetes mellitus is known to be associated with herbicide exposure under 38 C.F.R. § 3.309(e), the nexus element for service connection will be met once the in-service incurrence, which in this case is herbicide exposure, is shown. The Board observes that the Veteran's military personnel records show that he served in Korea from June 1965 to July 1966. Since the period of the Veteran's service in Korea does not fall within the period recognized for herbicide exposure presumption, such presumption is not applicable to his case under 38 C.F.R. § 3.307(a)(6)(iv). The lack of availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Veteran must directly show that he was exposed to herbicide agents while he served in Korea. The evidence developed by the Veteran and the Agency of Original Jurisdiction (AOJ) in order to support or verify his claim of herbicide exposure includes his military personnel records, Defense Personnel Records Information Retrieval System (DPRIS) search results, and the Veteran's statements. Based on a review of all the evidence in the Veteran's claims file, the Board finds that the evidence preponderates against finding that the Veteran was exposed to herbicide agents in Korea. Turning to the record, a January 2021 DPRIS search to verify the Veteran's claimed exposure during his military service in Korea from 1965 to 1966. They were unable to locate 1966 unit records submitted by the 802nd engineer Battalion. Multiple sources were reviewed in an attempt to substantiate the Veteran's claimed exposure and there was no evidence located to support documentation of the claimed exposure. As for the issue of herbicide exposure in Korea, no competent evidence in the record shows that the Veteran was exposed to herbicide agents while he served in Korea. As for the issue of direct service connection and exposure to other toxins, the Veteran was afforded a VA examination in March 2021. The March 2021 examiner opined that the Veteran's diabetes mellitus was less likely than not incurred in or caused by his military service. The examiner acknowledged the Veteran's belief that the fumes from cooking contained dioxins and after long-term exposure impaired his health. The examiner noted that dioxins are found in food and in other products, including smelting, chlorine bleaching of paper pulp and the manufacturing of some herbicides and pesticides. The examiner found no evidence to support that dioxins are found in cooking fumes or a relation between dioxin exposure and diabetes mellitus. The Board finds this opinion well-reasoned and thoroughly considered the Veteran's complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Although the Veteran believes that he was exposed to herbicides and other toxins during service that resulted in diabetes, as a lay person, he has not shown that he has specialized training sufficient to identify toxins or to render a medical opinion as to the etiology of diabetes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the identification of various chemicals and toxins and the etiology of diabetes are matters not capable of lay observation and require scientific training and medical expertise to determine. Thus, the opinion of the Veteran regarding whether he was actually exposed to various toxins and the etiology of his diabetes is not competent evidence. For the foregoing reasons, the Board finds that the claim for service connection for diabetes mellitus must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.