Citation Nr: 21030087 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-14 035 DATE: May 17, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, including due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran is not presumed to have been exposed to herbicides based on his service in Guam, nor is it otherwise shown that he was exposed to herbicides during his active duty service. 2. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus type II 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, type II, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A copy of the transcript is of record. The VLJ who presided over the March 2017 hearing is no longer at the Board. In March 2021, the Board informed the Veteran of this and he was afforded an opportunity for another hearing before a different VLJ. The Veteran did not reply within the allotted time frame. Therefore, the Board will proceed with adjudication. The issue was twice before the Board, in February 2019 and October 2020, and was remanded. In the October 2020 remand, the Board directed that the RO attempt to verify the Veteran's asserted in-service exposure to herbicide agents on Guam in 1966 and obtain an addendum opinion regarding his diabetes mellitus, type II. The RO performed appropriate development regarding the Veteran's assertion that he was exposed to herbicide agents in Guam. The medical opinions of November and December 2020 are adequate for adjudication. They reflect a review of the record and are accompanied by rationales. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for diabetes mellitus, type II is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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 the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through the application of statutory presumptions, including for "chronic diseases," such as diabetes mellitus when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases, including diabetes mellitus, shall be service connected if manifests to a compensable at any time after service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with diabetes mellitus. VA treatment records dated in 2006 and 2007 noted a diagnosis of diabetes mellitus. The first element of service connection is met. Shedden, 381 F.3d at 1166-67. He contends that it was incurred from exposure to herbicide agents during active service while stationed in Guam for 18 months. In a March 2018, he stated that "Agent Orange was stockpiled in Guam and it is conceivable that the Air Force obtained a barrel or two and used it [in] Guam." Further, in a subsequent June 2018 statement, he stated that while stationed on Guam, he "was ordered to use herbicides and dioxins." During his March 2017 hearing, he testified that as a liquid fuel system maintenance specialist, he was tasked with maintaining and refueling the system from the bulk storage areas to the aircraft. He maintained the bulk storage area from the Navy where the fuel came in, the pipeline that ran the entire length of the island, and, through the jungle, and the pump stations along the way. Furthermore, he "sprayed herbicides through the jungle, on the pipeline, and around all the pump stations, constantly to, take care of the growth around the pipeline and the, and the pump stations. [Also] doing preventive maintenance on the systems, we put them in the back of the pickup trucks and sprayed them [from] the 55-gallon drums. But I really don't know what they were, they were just weed killers." The Veteran also testified that while in Guam, he was constantly sick, and in the hospital but did not realize why he was sicker. His lymph nodes were swollen, and his white blood cells were elevated. A. Presumptive Service Connection Based on Herbicide Agent Exposure As noted above, the Veteran has been diagnosed with diabetes mellitus. Further, it has manifested to a degree of at least 10 percent disabling. Therefore, consideration of presumptive service connection for a chronic disease as set forth in 38 C.F.R. § 3.309(a) and based on exposure to herbicides as set forth in 38 C.F.R. §§ 3.307 and 3.309(e) is for consideration. The threshold question for presumptive service connection based on herbicide agent exposure is whether the Veteran was exposed to an herbicide agent in service. The Veteran's DD-214 shows that he did not serve in the Republic of Vietnam during the Vietnam era or near the Korean DMZ from March 1968 to November 1971, nor has he so asserted. This fact is not in dispute. Therefore, he is not presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307. Although the Veteran did not serve in Vietnam during the Vietnam Era or in the Korean DMZ in a particular unit during the required timeframe, the AOJ must follow appropriate steps to verify that the Veteran was actually exposed to herbicides through verification from the appropriate service department or other sources for the presumption of service connection for a herbicide-related disease under 38 C.F.R. § 3.309 to be applicable. Exposure to herbicides is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307 can still be established if shown by the facts of the case. Once exposure to herbicides has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309 for herbicide-related diseases is applicable. Upon reviewing the evidence, exposure to herbicide agents has not been established on a factual basis in this case. There is no probative, persuasive evidence of record demonstrating herbicide agent exposure for the Veteran. The Board acknowledges the Veteran's testimony that he was tasked with maintaining and refueling system bulk storage areas to aircraft and that constantly sprayed herbicides housed in 55-gallon drums through the jungle, on the pipeline, and around all the pump stations to curtail the growth around the pipeline. The Veteran offers no direct evidence that he was actually exposed to an "herbicide agent" as defined by 38 C.F.R. § 3.307, to include 2, 4-D; 2, 4, 5-T and its contaminant TCDD; cacodylic acid; and picloram, or an equivalent variant of herbicide. For example, he has not asserted personal knowledge that the contents of the 55-gallon drums actually contained herbicides. His sole contention is that "Agent Orange was stockpiled in Guam and it is conceivable that the Air Force obtained a barrel or two and used" them therein and that he "was ordered to use herbicides and dioxins," and that they were "safe" to use. The Veteran, in this case, is not competent to identify an herbicide agent as outlined in VA regulations, as he does not have the requisite chemical knowledge and has not stated that he saw any documentation that the 55-gallon drums he saw or the substances he used contained herbicide agents or TCE. As a matter of fact, during his testimony, he admitted that "I really don't know what they were, they were just weed killers." In June 2018, the Veteran submitted two United States Court of Appeals for Veterans Claims (CAVC), and one Board decision wherein the service connection was awarded based on herbicide exposure in Guam. The Board notes that prior Board decisions are binding only on the specific case decided, and the decisions provided have no precedential value in the instant case. 38 C.F.R. § 20.1303. Each decision by the Board is necessarily based on a review of the evidence of record in a particular claims file and has no precedential value toward adjudication of appeals by other claimants such as the Veteran who may appear to be similarly placed. The prior Board decisions are entitled to no probative weight in determining whether this Veteran was exposed to herbicide agents in Guam. The Veteran also submitted a Public Health Assessment that noted contaminated groundwater ("contaminated with volatile organic compounds" which "included trichloroethylene (TCE) and tetrachloroethylene") underlying Andersen AFB and an Environmental Protection Agency (EPA) EPA information sheet regarding contaminants. There is no probative or confirmatory evidence showing that the Veteran was exposed to herbicide agents or TCE in Guam. His military records do not document herbicide or TCE exposure. In addition, a November 2019 email from C. R., a Department of Defense (DoD) official, noted that while DoD the maintains a list of locations outside Vietnam and the Korean DMZ where herbicides were used, tested, or stored, it has not identified any location on the island of Guam where Agent Orange was used, tested, stored, or transported. Furthermore, there were no references to routine base maintenance activities such as range management, brush clearing, and weed killing. These were accomplished with commercial herbicides on all military bases worldwide. Commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 C.F.R. § 3.307(a)(6)(i). Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Guam during those years and so there was no need for Agent Orange use in that location. Additionally, Guam was not on the Agent Orange shipping supply line, which went directly from storage at Mobile, Alabama, or Gulfport, Mississippi, to South Vietnam via merchant ships. Similarly, in November 2019, M. K. W., the Program Manager, Pacific Islands Office, and who has served in such a capacity for military cleanup sites on Guam since 1997, noted the Negative Findings Regarding on the Use, Storage or Testing of Tactical Herbicides, including Agent Orange, in Guam. M. K. W. acknowledged the 2005 Board decision submitted by the Veteran, citing Agent Orange exposure in Guam, and note that BVA has not identified the source of its unsubstantiated statement that dioxins were present on Guam. The BVA decision cites 'copies of articles' indicating that Agent Orange may have been stored and/or used on Guam from 1955 to the late 1960s. [I]n the BVA decision that '[t]hese articles also reflect that in the 1990s, the Environmental Protection Agency (EPA) listed Anderson Air Force base as a toxic site with dioxin-contaminated soil and ordered cleanup of the site.' VA cannot locate any EPA report, or any other competent and credible expert report, that identifies dioxin as one of the potential significant toxins on Guam. In April 2010, two consultants from the Compensation and Pension service contacted the Guam Program Manager of the Pacific Islands Office of the Environmental Protection Agency to ask if Agent Orange or other tactical herbicides had ever been used on Guam. He replied that he was not familiar with any tactical use of pesticides on Guam, nor had he ever seen any reports identifying the presence of Agent Orange anywhere on Guam. Regarding TCE in groundwater beneath the former Naval Air Station Agana, he added that this is believed to be a result of cleaning solvents formerly used to rinse off/clean airplanes. Other than that, bacterial contamination in groundwater has been an issue in the past but associated with wastewater overflows and leakages. Based on the above, the Board finds that the Veteran's assertions regarding herbicide exposure are outweighed by the other evidence of record. In particular, the finding from DoD, the custodian of records for the historical use of herbicides and is in the best position from a review of its own records to determine whether an herbicide agent was present the Andersen AFB in Guam. Overall, the Board finds that the DoD's determination, which is based on its own classified and unclassified documents, substantially outweighs the Veteran's assertions and thus, provide highly probative evidence against the Veteran's claim that he was exposed to herbicide agents in Guam. In light of the above evidence and the verification efforts, there is no competent evidence of record of the Veteran's asserted exposure to herbicide agents in service, nor any record demonstrating that herbicides were tested, stored, or transported in Guam where the Veteran was stationed. As such, the probative and persuasive evidence of record demonstrates that herbicides were not present at the Andersen AFB in Guam during the Veteran's period of active service, and, therefore, he was not exposed to an herbicide. Thus, he is not entitled to service connection on a presumptive basis for diabetes mellitus due to exposure to herbicides. 38 C.F.R. § 3.309 (e). Additionally, post-service records do not reveal probative evidence of diabetes mellitus, type II at a 10 percent level within one year after service, nor has the Veteran so asserted. 38 C.F.R. § 4.119. His diabetes was first diagnosed in 2007, decades after his separation from service. Thus, the Veteran is not entitled to service connection for diabetes mellitus on a presumptive basis as a chronic disease outlined in 38 C.F.R. § 3.309 (a). Because diabetes is a disability outlined in 38 C.F.R. § 3.309 (a), the theory of continuity of symptomatology is considered. Under 38 C.F.R. § 3.303 (b), the probative evidence of record does not establish continuity of symptomatology for diabetes mellitus after discharge from active service in June 1967. The Veteran's STRs specifically noted no abnormality. Further, the Veteran's diabetes mellitus was diagnosed in 2007, many years after service. In this regard, the Veteran may be competent to relate observable symptoms; however, he has not been shown to possess the requisite training or credentials needed to render a competent opinion that his diabetes mellitus, type II, is due to service, especially in light of the complicated nature of the disability. Based on those above, the Board finds that the Veteran's opinion does not constitute competent medical evidence and lacks probative value. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, service connection may not be granted under 38 C.F.R. § 3.303 (b). B. Direct Service Connection Because the Veteran is not entitled to a presumptive service connection for his claim, it does not preclude him from establishing entitlement to service connection for his diabetes mellitus, type II, with proof of actual direct causation. Combee v. Brown, 34 F.3d at 1043. The Veteran's STRs are negative for any symptoms of treatment for or a diagnosis of diabetes mellitus, type II. In fact, at the June 1967 separation examination and report of medical history, nothing was reported as abnormal. While cognizant that the absence of contemporaneous records is not an absolute bar to a veteran's ability to prove his claim, the Veteran's STRs do not suggest that he had symptoms of or received treatment for diabetes mellitus, type II. Further, the Veteran has not asserted that his diabetes mellitus is the result of any disease or injury in service, other than his asserted herbicide agent and TCE exposure. During the appeal, the Veteran was afforded various VA examinations/opinions finding a negative nexus to service. During a November 2020 medical opinion, the examiner found no relationship between the alleged herbicides, TCE, and fuel exposure to his diagnosed diabetes mellitus, type II. The examiner reasoned that the onset of the Veteran's diabetes mellitus, type II, was almost four decades after he separated from service, and there was no objective evidence in his STRs documenting medical evaluation/management/treatment for diabetes mellitus, type II, while he was on active military service. The examiner noted, The [V]eteran claimed he was exposed to herbicides (Agent Orange) while stationed in Guam, [however], there is no objective evidence that there was Agent Orange stored, experimented with, and/or used in Guam. A review of current medical literature does not reveal objective evidence establishing a causal relationship between fuel exposure and diabetes mellitus, type II. In December 2020, specifically addressing the Veteran's contention of exposure to TCE causing his diabetes mellitus, type II, the examiner again rendered a negative nexus and reasoned that although there is some evidence of an association between diabetes mellitus type II and exposure to TCE, there was insufficient objective evidence in the medical literature to confirm this type of causativeness. Also, she noted that the Veteran's diagnosis of diabetes mellitus, type II was approximately 40 years after the alleged exposure, which makes it less likely than not that the alleged exposure caused his diabetes mellitus. The Board finds the examiners' conclusions most probative against a finding that the Veteran's diagnosed diabetes mellitus, type II is related to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.). Further, there is no competent medical evidence of record that contradicts the comprehensive findings of the VA examiners. As there is no competent, probative medical or lay evidence linking the Veteran's diabetes mellitus, type II to his service, direct service for diabetes mellitus, type II must be denied. In sum, the Board finds that the probative evidence of record does not establish herbicide exposure during the Veteran's service at the Anderson AFB in Guam. Therefore, presumptive service connection under 38 C.F.R. § 3.309 (e) is not warranted. His diabetes mellitus, type II did not manifest within one year of separation. Therefore, presumptive service connection under 38 C.F.R. § 3.309 (a) is not warranted. Additionally, there is no probative evidence of continuity of symptomology, precluding service connection under 38 C.F.R. § 3.303 (b). Lastly, the evidence does not show that the Veteran's diabetes mellitus, type II, is due to a disease, injury, or incident in service other than the asserted exposure to herbicide agents and TCE. As such, the preponderance of the evidence is against the Veteran's service connection claim for diabetes mellitus, type II. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.