Citation Nr: 22011902 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-03 498 DATE: March 2, 2022 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and was not otherwise exposed to herbicides during his military service. 2. The Veteran's type II diabetes mellitus did not manifest in service or within one year thereafter and is not otherwise related to service. CONCLUSION OF LAW Type II diabetes mellitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1967 to November 1973, to include service in Korea from September 1969 to April 1970. He had additional service in the United States Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In August 2018 and April 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis In the August 2018 and April 2020 remands, the Board directed the AOJ to undertake any necessary efforts to verify the Veteran's claimed herbicide exposure while he was stationed in Korea from September 1969 to April 1970. Thereafter, the AOJ undertook such efforts, and in October 2021, a records research response was received from the VA Military Records Research Center. Thus, The Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As diabetes mellitus is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, 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. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain 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 further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The presumption of exposure to herbicide agents has been extended to those veterans who served offshore of the Republic of Vietnam during the same time period. 38 U.S.C. § 1116A. For purposes of this section, an offshore location is one that is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain enumerated points. If a veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307(a)(6)(iv). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset 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 (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute 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). 38 C.F.R. § 3.309(e). 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; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for type II diabetes mellitus. The Veteran has contended that his type II diabetes mellitus is related to in-service herbicide exposure while he was stationed in Korea. The Veteran's service personnel records show that he served in the 347th Combat Support Group, 2074th Communications Squadron, at Osan Air Base in Seoul, Korea, from September 1969 to April 1970. Specifically, the Veteran stated that he was exposed to Agent Orange that was used as a defoliant at Site 91 along the DMZ, where he was sent on temporary duty (TDY) with the 1961st Command Squadron for three weeks to install communications links to the units directly assigned to the DMZ posts and ground surveillance radar systems gear. See, e.g., January 2013 statement; July 2018 hearing transcript. He indicated that Army aircraft sprayed defoliant to clear the top of the mountain that Site 91 sat atop for the installation of the radar, communications, radios, and land lines that his support group was there to install. See July 2012 statement. He also stated that Army helicopters defoliated the entire area down the side of the mountain where they placed lighting and placed guards on the ground cable to prevent the Koreans from stealing sections of the copper cable. See July 2018 hearing transcript. The post-service evidence shows that the Veteran has a current diagnosis of type II diabetes mellitus. On review, the Board finds that the Veteran's current diabetes mellitus did not manifest in service. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of diabetes mellitus. In fact, his relevant body systems were found to be normal at the time of a July 1967 enlistment examination and an October 1973 separation examination. In an October 1973 separation report of medical history, the Veteran also denied having sugar or albumin in his urine. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had diabetes mellitus during service. Therefore, chronicity is not established in service. Moreover, the record contains no indication that the disorder manifested to a compensable degree within one year of the Veteran's military service. The Veteran has not contended otherwise. Instead, the Veteran has consistently maintained that he is claiming service connection for diabetes mellitus on the basis of herbicide exposure only. See, e.g., July 2011 claim (claim for diabetes with reported onset in 2002); July 2012 statement (Veteran reported that scientific research and multiple military hearings have proven his illnesses, including diabetes mellitus, are directly linked to the use of toxins at the DMZ); July 2018 hearing transcript (onset and relationship of disorder to claimed herbicide exposure); May 2020 VA treatment record (10-year history of diabetes); May 2021 VA treatment record (diabetes diagnosis in approximately 2011). Regarding the claimed in-service herbicide exposure, the record does not show that the Veteran served in the Republic of Vietnam during the Vietnam era, and he has not contended otherwise. Rather, the Veteran's service personnel records show that he served in the 347th Combat Support Group, 2074th Communications Squadron, at Osan Air Base in Seoul, Korea, from September 1969 to April 1970. A January 2012 Personnel Information Exchange System (PIES) response to a request for any documents showing exposure to herbicides indicated that there were no records of exposure to herbicides. In July 2019, VA made a formal finding determining that the information required to corroborate Agent Orange exposure in service was insufficient to send to the United States Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for the meaningful research of records. VA noted that a review of the Veteran's personnel records showed that the Veteran was stationed at Osan Air Base in Seoul, Korea, from September 1969 to April 1971. There was no indication in the service personnel records that the Veteran was on TDY to Site 91 or any indication that Agent Orange was used there. VA also noted that Agent Orange or herbicide exposure was not conceded because a review of Department of Defense (DoD) records had no confirmation of service in the Korean military units where herbicide exposure was conceded. In an October 2021 response to a request for verification of the Veteran's claimed exposure to herbicides, a professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, indicated that complete, comprehensive research was performed for the Veteran's claimed herbicide exposure while assigned to the 2146th Communications Group, 2074th Communications Squadron stationed at Osan Air Base in Korea from September 1969 to December 1969. The researcher noted that the October 1969 through December 1969 unit history submitted by the Air Force Communications Service, the higher headquarters for the 2146th Communications Group, and 2074th Communications Squadron stationed at Osan Air Base did not document that the Veteran or personnel assigned to the 2146th Communications Group or 2074th Communications Squadron were exposed to herbicides while serving at Osan Air Base. The researcher also found that the historical documentation did not report that the 2074th Communications Squadron personnel duty assignments required the Veteran to be on or near the DMZ during the specified time period. The researcher concluded that no evidence was located to support documentation of the claimed exposure event. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran served in the Republic of Vietnam. The weight of the evidence is also against a finding that the Veteran was otherwise exposed to herbicides during his military service while he was stationed at Osan Air Base in Seoul, Korea. Because there is no evidence of service in Vietnam or herbicide exposure along the DMZ, the Veteran is not entitled to the legal presumption of herbicide agent exposure or recognition of exposure on a direct/facts-found basis to serve as the in-service event to relate his type II diabetes mellitus to his military service. For these reasons, the Board finds that the weight of the evidence is against the Veteran's claim. Therefore, the Board concludes that the Veteran is not entitled to service connection for type II diabetes mellitus. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.