Citation Nr: 21032333 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-14 542 DATE: May 26, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (hereinafter diabetes) is granted. Entitlement to service connection for bilateral knee arthritis (hereinafter knee disability) is denied. FINDINGS OF FACT 1. The Veteran was likely exposed to herbicide agents, to include Agent Orange, while stationed at Camp Casey in South Korea. 2. The Veteran has been diagnosed with diabetes, which is a disability recognized by the VA as etiologically related to exposures to herbicide agents. 3. The Veteran's bilateral knee disability did not manifest during active service, is not presumed to be caused by service, and has not been found otherwise etiologically related to or etiologically linked to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes, as presumptively due to exposure to herbicide agents, to include Agent orange, are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for Entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from December 1967 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in August 2020. A transcript of the hearing is associated with the claims file. The Board has not addressed the claim of entitlement for an increased rating for hearing loss. The Veteran did not list this issue on his March 2018 Form 9 and, hence, the issue is not appealed to the Board. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. For presumptive service connection for diseases associated with exposure to certain herbicide agents, the disease must manifest to a degree of 10 percent or more within any time after service, but for chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy, the disease has to manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(ii). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for diabetes is granted. The Veteran seeks entitlement to service connection for diabetes. He primarily contends that he was exposed to herbicide agents, including Agent Orange through his service in the military. The Board notes that the Veteran has a current disability of type II diabetes. See C&P Exam received August 2016. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Department of Defense (DOD) has identified specific units it has cited that served in areas along the Demilitarized Zone (DMZ) in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). VA's Adjudication Procedure Manual, M21-1MR, contains a list of a number of Battalions of Infantry, Cavalry, Armor, and Artillery Divisions identified as specific units that served in areas along the DMZ in Korea where herbicide agents, including Agent Orange, were used between April 1968 and July 1969. If a veteran alleges service along the DMZ in Korea and was assigned to one of the cited units during this period, then that veteran's exposure to herbicides on a factual basis is conceded. Id. Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Veteran has not alleged any service in the Republic of Vietnam. He reported service along the DMZ in the Republic of Korea. Specifically, the Veteran reported that he was stationed in Camp Casey near the DMZ in South Korea, and that he worked as a postal worker from 1968 to 1969. The Veteran testified that for a period of about 13 months, he would drive at night into, or along the DMZ, to pick up mail. He also handled and sorted mail which came from the DMZ. At the hearing, the Veteran stated that he saw, worked, and traveled through areas where defoliants were used. See Hearing Transcript received August 2020. The Board notes that it is undisputed that the Veteran served in South Korea in 1968 to 1969 at Camp Casey. See Military Personnel Record received May 2016, DPRIS Response received February 2018. The Veteran was in the 7th Infantry. Id. Moreover, the Veteran's record of assignments clearly stated that he worked as a general clerk and senior postal clerk during the time frame at issue. Id. The Veteran also provided a military personnel letter of appreciation that noted he had a myriad of tasks as a postal service worker, and that he handled mail expediently, including increased mail near the Christmas season. See Military Personnel Record received August 2018. It is also undisputed that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the Veteran's unit. However, the Board also notes that a search of unit histories does not mention any specific duties performed by any members of the 7th Administrative Company or 7th infantry division along the DMZ, including mail delivery. Additionally, the histories do not document that there was any use, storage, spraying, or transportation of herbicide agents at Camp Casey. See DPRIS Response received February 2018. The Veteran provided a previous Board decision granting service connection for diabetes which discussed other exposures to Agent Orange at Camp Casey, during the same period of time that the Veteran served at Camp Casey. See Third Party Correspondence received December 2016. The decision refers to a letter from the Department of the Army to Senator John Glenn, dated in May 1996, which references the use of 21,000 gallons of Agent Orange in Korea in 1968 to 1969 in the area of the DMZ. This letter also stated that Camp Casey was located in the area of the DMZ. Id. While the Board notes that this previously issued decision is in no way binding, the previous Board decision may be considered, to the extent that it reasonably relates to the case at hand and based on the individual facts. See 38 C.F.R. § 20.1303. The Board finds the Veteran's lay statements, that he was exposed to herbicide agents through his duties as a postal clerk, and service at Camp Casey, are reasonably supported in view of all the evidence. This inference that the Veteran was exposed to herbicide agents, including Agent Orange, is especially supported in the context of the Veteran's personnel records, and the previous Board decision discussing the May 1996 Department of the Army letter. Furthermore, the Board finds no reason to doubt the credibility of the Veteran's testimony, as it is consistent with the statements the Veteran has made since filing his initial claim for service connection in April 2016. Upon review of the record, the Board finds that while there is reasonable doubt, the evidence is not against a finding in favor of the Veteran. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for diabetes is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral knee arthritis disability is denied. The Veteran contends that he is entitled to service connection for a bilateral knee disability. First, the Board considered whether service connection was warranted on a presumptive basis. However, the evidence does not support that the Veteran's bilateral knee arthritis manifested to a compensable degree within one year of discharge. The evidence also does not show a continuity of symptoms since service. For example, in July 2016, the Veteran went to a private orthopedic specialist. He complained that he had a history of bilateral knee pain. The consultation stated that x-rays of his knee found bilateral arthritis with the medial compartments worse than the lateral compartments. X-rays were reportedly normal except for mild to moderate arthritis of the knees. See Medical Treatment Records-Non-Government Facility received August 2016. Next, the Board considered direct service-connection, but the evidence does not show a causal relationship ("nexus") between the Veteran's present bilateral knee disability and an in-service event, injury, or disease. For direct service connection, you must have a present disability. As noted above, the Veteran had imaging showing arthritis in his knees. See Medical Treatment Records-Non-Government Facility received August 2016. Therefore, a present disability is shown. Next, for direct service connection, the Veteran must also have an in-service event, injury, or disease. The Veteran did not provide a specific description of any in service event, injury, or disease. He reported that he served as a postal clerk delivering mail and that he also trained as a mortarman in an infantry unit. He stated that he did a lot of heavy lifting. See Hearing Transcript received August 2020. However, the Veteran's Report of Medical Examination around discharge noted a normal clinical examination with the exception of mild hearing loss in the right ear. See STR-Medical received May 2016. The Veteran's Report of Medical History around this time also did not report any knee issues. Id. Additionally, the Veteran's service treatment records do not reflect that he suffered from any particular injury to his knees during active military service. Therefore, an in-service event, injury, or disease is not supported by the evidence. Lastly, the records also do not support a causal relationship ("nexus") between the present disability and any in-service event, injury, or disease. The Board emphasizes that it is aware that the Veteran has not received a VA opinion with respect to his service connection claim for his bilateral knee disability. However, there is no probative evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between the current disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In this case, the absence of any medical evidence of treatment for the Veteran's claimed bilateral knee disability following separation from service tends to show that the claimed disorder was not a result of his military service. As such, there is no basis for establishing service connection for the claimed disability on appeal. While the Veteran believes that his current bilateral knee disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. 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). In this regard, the diagnosis and etiology of a knee disability is a matter not capable of lay observation and requires medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his bilateral knee disability is not competent medical evidence. Based on the foregoing, the Board finds that the claimed bilateral knee disability on appeal was not manifested during, or as the result of active military service. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) on reasonable doubt are not applicable. The claim of entitlement to service connection for a bilateral knee disability must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.