Citation Nr: 21031640 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-42 497 DATE: May 24, 2021 ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served in Korea after August 1971. 2. The Veteran's diabetes did not develop during service or in the first year after separation from service, and there is no competent and credible evidence relating his diabetes to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from December 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously remanded in June 2019 as new evidence had been added to the claims file subsequent to the issuance of the most recent supplemental statement of the case. The claim returns to the Board for appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Pertinent Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Analysis The Veteran contends that his diabetes is related to service, to include exposure to herbicide agents while stationed in Korea. Specifically, the Veteran asserts that he would go out into the DMZ and stand guard as the vegetation was being sprayed. The Veteran maintains that, while the persons spraying the herbicide agents wore masks, he did not, and he was not told what was being sprayed. See March 2012 Statement in Support of Claim. As an initial matter, the Veteran has been diagnosed with diabetes mellitus, type II. See September 2014 VA Examination Report. As such, the Veteran meets the first element for service connection. A veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area, in which herbicide agents are known to have been applied during that period, as determined by the DOD, shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv). The Department of Defense issued a list of service units that have been recognized as having served in areas along the Korean DMZ. A review of the Veteran's service personnel records confirmed that while stationed in Korea he was assigned to 1st Battalion, 31st Infantry Division from October 1971 to October 1972. While the Veteran's unit is among those listed by the DOD as stationed along the DMZ, his service in the area was not within the relevant time period. Therefore, it cannot be presumed that he was exposed to herbicide agents during his Korean service under this regulation. See 38 C.F.R. § 3.307(a)(6)(iv). As there is no presumption of herbicide agent exposure for veterans who served in or near the Korean DMZ after August 31, 1971, service connection on a presumptive basis cannot be granted. The central question then becomes whether the evidence of record establishes on a factual basis that the Veteran was exposed to herbicide agents while serving in Korea. The Board notes that where a veteran alleges service along the DMZ outside the specified time period and was assigned to a unit other than one of the specified units, the AOJ is to submit a request for verification of the veteran's location and military duties in Korea. In this case, proper action was undertaken by the AOJ to verify whether the Veteran operated in a unit in or near the Korean DMZ for presumption of herbicide exposure. Review of Defense Personnel Records Information Retrieval System (DPRIS) records found no evidence of the use, storage, spraying or transportation of herbicides to include Agent Orange. While DPRIS was unable to locate unit records submitted by the Veteran's unit, records from the 2nd Infantry Division and 8th United States Army were reviewed which confirmed the Veteran's unit relieved 1st Battalion, 17th Infantry on the DMZ in September 1971, and the unit was located at Camp Hovey, South Korea. See October 2017 DPRIS Response. The Board finds the evidence gathered by official government sources to highly probative. VA has set regulations and procedures in place to determine whether a veteran who served between April 1, 1968 and August 31, 1971, in units determined by DOD to have been in or near the Korean DMZ, should be presumed to have been exposed to herbicide agents. Again, the AOJ conducted the appropriate search and the DPRIS responded after reviewing the unit history, which did not document the use, storage, spraying, or transporting of herbicides. The Board assigns greater probative weight to the findings from official government sources, such as DPRIS, which have considered the specific duties and locations of the unit associated with the Veteran's service in determining that he was not exposed to herbicide agents. The Board considered the Veteran's assertions that he was exposed to herbicide agents while stationed in Korea. Unfortunately, a lay person's assertions indicating exposure to herbicide agents during service are not considered to be sufficient evidence alone to establish actual exposure. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the Veteran's assertions regarding exposure to herbicide agents are not found to be sufficient to establish exposure to herbicide agents during service. The record does not contain any competent evidence linking the Veteran's disability to claimed exposure to herbicide agents during service. Accordingly, the Board finds the required period of service near the Korean DMZ is not shown nor is there evidence of exposure to herbicide agents while the Veteran was stationed in Korea. Thus, the Board finds that service connection on this presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the fact that a regulatory presumption of service connection is not warranted, such does not preclude the Veteran from otherwise establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, the Board notes that certain chronic diseases, including diabetes mellitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has not claimed, and the evidence does not otherwise suggest, that his diabetes began during service or within one year of service discharge. The Veteran's service treatment records include no complaints of, treatment for, or diagnoses of diabetes. Further, the post-service medical reports do not document diabetes within the one-year presumptive period following separation from service in 1973. In fact, the earliest diagnosis for diabetes was in 2008, almost 4 decades later. Additionally, the Veteran has not submitted any medical evidence relating diabetes to service. The Veteran's representative requested the Board credit the Veteran's assertions that his condition began in service. In addition, the representative stated that his September 2014 VA treatment records showed a diagnosis for both diabetes and hypertension and argued it was well known such disabilities are related and requested the Board discern from the Veteran's service records any indication of the presence of hypertension in service. See April 2021 Appellate Brief. First, although lay persons are competent to provide opinions on some medical issues, the specific disability in this case falls outside the realm of common knowledge or observations of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, in this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical questions, such as a link between his diabetes and his service. Thus, his statements regarding any such causal or etiological link are not competent. Second, the Veteran has not filed a claim for hypertension and that issue is not before the Board. While the Board has the responsibility to address a disability encompassed by the Veteran's description of the claim, the circumstances herein do not warrant the Board to address hypertension. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim); see also Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (separately diagnosed conditions with distinct factual bases should ordinarily be treated as separate claims). Nonetheless, in conjunction with a claim for non-service-connected pension, a VA examination was performed in September 2014. The examiner opined that the Veteran did not have any conditions related to his diabetes, nor was his diabetes permanently aggravated by any of his conditions, stating that hypertension was diagnosed around the same time as his diabetes and therefore was not a residual of his diabetes. See September 2014 VA Examination Report. The Board does not intend to address the merits of the claim for hypertension, and the Veteran is not precluded from submitting a claim for service connection for hypertension if he so chooses. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran's diagnosis of diabetes mellitus, type II, began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. In summary, the evidence of record does not show that the Veteran was exposed to herbicide agents in service. the Veteran's service treatment records do not show diabetes in service. The Veteran did not receive treatment for, or a diagnosis of, diabetes until 2008, almost 40 years after service. No medical professional has attributed the Veteran's diabetes to his military service, nor is the Veteran competent to assert such a link. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim for service connection must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate 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.