Citation Nr: 21027600 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-39 075 DATE: May 6, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran's diabetes did not have onset in service, or within one year of service discharge, nor is it related to any aspect of service. 2. The Veteran is not shown to have been exposed to herbicide agents including Agent Orange in service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.304(d), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1969 to March 1989. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2018 and was remanded for further development. In this regard, the Board finds that the post-Remand development substantially complied. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Because the Veteran in this case served in Vietnam, exposure to herbicide agents has been conceded. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 5(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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is denied. The Veteran contends his diabetes is due to herbicide exposure in service from being on, in, and around aircraft that transported and disbursed Agent Orange. See VA Form 9. The Veteran has a diagnosis of diabetes. See generally VA Treatment Records. However, the Veteran's service treatment records (STRs) do not indicate that he suffered from this problem in service. The Veteran's separation examination does not list any ongoing trouble with diabetes. Additionally, while the Veteran's personnel record shows he was stationed at Kadena Air Base in Okinawa, Japan, which provided support to the agencies operating in the Gulf of Tonkin, the evidence does not show the Veteran or other personnel in his unit maintained aircraft that were used for storage, spraying, or transporting Agent Orange or other tactical herbicides. The Board is sympathetic to the Veteran's past contentions and has fully considered his statements. However, after weighing all of the evidence, including the persuasive statements and position of DoD that no herbicide agents were used or stored on Okinawa and the fact that the Veteran nor other personnel in his unit maintained aircraft that transported herbicide agents, the Board finds the Veteran was not exposed to herbicides while in service. Therefore, the service connection claim cannot be granted on a presumptive basis. The factual evidence of record clearly supports this finding. We cannot ignore such evidence. Without the presumption, the claim fails. Nevertheless, the availability of presumptive service connection for a disability based on herbicide exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's record is negative for any objective link between his currently diagnosed disabilities and his time in service. Additionally, the Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed conditions by VA. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159 (c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, 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 disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his condition while in service and there is no other competent medical evidence suggesting an association to service. Therefore, not providing the Veteran with an examination for this condition does not amount to a duty to assist error. Both the service and post-service treatment records provide evidence against this claim, indicating a problem that began many many year after service with no connection to service. The Board recognizes the Veteran's statements that he believes his condition is secondary to herbicide exposure. The Board also acknowledges the Veteran continues to seek treatment for this condition. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as diagnosing or determining the nature and etiology of medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record, including the fact that the Veteran was no diagnosed with diabetes until 2006, which is 17 years post-service. (Continued on the next page) It is important for the Veteran to understand that the medical findings (the service and post-service records) provide highly probative evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his disability is the result of service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe 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.