Citation Nr: 22017377 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 07-02 849 DATE: March 24, 2022 ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 27, 2013, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. FINDINGS OF FACT 1. The evidence of record shows that the Veteran served in or near the Korean Demilitarized Zone (DMZ) between 1974 and 1975 which is outside the dates for conceding presumptive in-service exposure to an herbicide agent based on such service. 2. The most persuasive evidence of record is against finding that diabetes mellitus began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1971 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2006 and October 2007 rating decisions. The instant matters were remanded by the Board in August 2019 and December 2020. 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents The Veteran contends that he is diagnosed with diabetes mellitus due to his exposure to herbicide agents along the Korean DMZ between 1974 and 1975. He further stated that he was diagnosed with diabetes mellitus in 1995 during his incarceration. Private treatment records from his time in prison show he was diagnosed with noninsulin dependent diabetes mellitus in 1998. VA treatment records show a diagnosis of diabetes mellitus in 2000. He submitted an article on the government's use of herbicides in the DMZ in Korea from the late 1960s to the early 1970s. The Board concludes that, while the Veteran has a current diagnosis of diabetes mellitus and evidence shows that he served in Korea, the most persuasive evidence of record weighs against finding that the Veteran's diabetes mellitus began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§1110, 1131, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during active service, certain enumerated diseases, including diabetes mellitus, shall be presumptively service-connected even where there is no record of such disease during service. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). Under the Blue Water Navy Vietnam Veterans Act of 2019, the relevant period of service was expanded to September 1, 1967 through August 31, 1971. See 38 U.S.C. § 1116B; see also Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3, 133 Stat. 966, 970 (eff. Jan. 1, 2020). However, the presumption of service connection for herbicide-related diseases may also apply if exposure to herbicide agents is shown on a factual basis. In essence, if the Veteran did not serve at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Additionally, even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide agents. Brock v. Brown, 10 Vet. App. 155 (1997). As discussed above, the Veteran was diagnosed with diabetes mellitus. Therefore, the Veteran has a disability associated with herbicide exposure for purposes of the above presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). The Board notes that regardless of making a finding of whether the Veteran served in or near the Korean DMZ, the facts establish that the Veteran served in Korea between 1974 and 1975. However, the Board notes that because there is no presumption of herbicide agent exposure for veterans who served in or near the Korean DMZ after August 31, 1971, the central question is whether the evidence of record establishes on a factual basis that the Veteran was exposed to herbicide agents while serving in Korea. After a review of the evidence, the Board finds the Veteran was not exposed to herbicide agents while serving in Korea. 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 during the time the Veteran was stationed in Korea. See December 2021 other. However, in February 2010, the Veteran submitted an article to support his contention that he came into contact with Agent Orange during service. Specifically, the article discusses that 59,000 gallons of three toxic chemicals defoliated nearly 21,000 acres of the DMZ during 1968 and 1969 and that officials fear thousands of soldiers may have come into contact with the defoliant in the late 1960s and early 1970s. See February 2010 Web / HTML Documents. The Board notes that the article submitted by the Veteran is very general in nature and does not contain any information or analysis specific to the Veteran's case or the circumstances service, potential exposure, and his disability. Notably, the article notes that soldiers were exposed to the defoliant in early 1970s, which is consistent with the presumption lasting through August 31, 1971. However, there is nothing in the article that reflects that veterans who served in 1974 or 1975 were exposed to Agent Orange. Thus, the Board finds that the submitted article has little probative value to the question of whether the Veteran had exposure to Agent Orange and it does not contradict the DPRIS response that there was no use, storage, spraying or transportation of herbicides to include Agent Orange during the time the Veteran was stationed in Korea. The Board notes that while the Veteran has asserted that he was exposed to herbicide agents while stationed in Korea, there is no evidence in the record corroborating this assertion. Unfortunately, a lay person's assertions indicating exposure to gases or chemicals 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 other competent evidence linking the Veteran's disability to his exposure to any environmental exposures during service. The Veteran has not been afforded a VA examination regarding his claimed diabetes mellitus. The Board finds that a VA examination is not necessary because there is no evidence that the Veteran's diabetes mellitus occurred in service, and there is no competent evidence that diabetes mellitus may be associated with service. The Board also finds that the evidence of record does not show that the Veteran was exposed to herbicide agents in service. 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. Additionally, the Veteran does not contend, and the evidence does not show, any other in-service injury, event, or disease that could be the cause of the Veteran's disability. Accordingly, the most persuasive evidence of record is against the claim, the benefit of the doubt doctrine is not for application, and the claim of service connection for diabetes mellitus must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to a TDIU prior to November 27, 2013, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. Where the schedular rating is less than total, a TDIU may be assigned when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered substantially gainful employment. During the period on appeal prior to November 27, 2013, the Veteran is service connected for chronic maxillary sinusitis, which is rated as 50 percent from November 4, 2004, and is service connected for right foot hallux valgus with arthritic changes of the first toe (right foot hallux valgus), which is rated as 10 percent from February 9, 1998. Prior to November 27, 2013, the combined ratings during the period on appeal are 60 percent. As the Veteran does not have a single service-connected disability ratable at 60 percent or more and also does not have two or more disabilities with at least one disability ratable at 40 percent or more, the Board finds that the Veteran did not meet the schedular criteria in 38 C.F.R. § 4.16(a) However, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU under 38 C.F.R. § 4.16(b) without referring the matter to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The issue before the Board is therefore whether a remand for referral for extraschedular consideration for TDIU is warranted. The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The June 2005 examiner noted that the Veteran's right foot hallux valgus created a restriction with employment due to not being able to stand for longer than 15 to 20 minutes at a time. The above evidence reflects that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to November 27, 2013. Accordingly, the criteria for referring this matter for extraschedular consideration under 38 C.F.R. § 4.16(b) are met. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.