Citation Nr: 25008167 Decision Date: 06/20/25 Archive Date: 06/20/25 DOCKET NO. 19-00 654 DATE: June 20, 2025 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that the Veteran was exposed to herbicide agents in service. 2. The evidence persuasively weighs against a finding that the Veteran's diabetes mellitus, type II, had its onset during active duty service, manifested within one year of separation from service, or is otherwise related to service. 3. The evidence persuasively weighs against a finding that the Veteran's diabetes mellitus, type II, is related to his toxic exposure risk activities. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107, 1168; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from August 1967 to August 1970. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2023. The hearing transcript is of record. The Board remanded the claim in August 2023 for further development by the RO. The case has been returned to the Board for further appellate action. The Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board directed the RO to attempt to verify the Veteran's claimed herbicide agent exposure while he was stationed at Naval Station Midway Island from November 1967 through November 1968 and/or on the United States Ship (USS) Stoddard. Review of the claims file shows that the RO obtained a Records Research Center Response in January 2024 and additional Memoranda regarding service on the USS Stoddard in April 2024. The Board also directed the RO to obtain updated VA treatment records, which were associated with the claims file in April 2025. Therefore, the Board will proceed with adjudication of the claim. Entitlement to service connection for diabetes mellitus, type II, is denied. The Veteran has asserted exposure to herbicide agents in service. Specifically, in the May 2023 Board hearing, the Veteran asserted that he was exposed to herbicide agents through defoliation efforts along the runway on Midway Island, and while engaged in harbor operations on the Weehawken (YTB-776), unloading 55-gallon barrel drums of what he understood to be herbicide agents from incoming ships. Moreover, in the December 2018 VA Form 21-4138 (Statement in Support of Claim), the Veteran asserted that the USS Stoddard was used to transport herbicide agents while he served aboard. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.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). Alternatively, service connection for certain chronic diseases, including diabetes mellitus, may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection on the basis of exposure to certain herbicide agents is warranted where a veteran sustained exposure to such herbicide agents during active military, naval, or air service, and subsequently manifested a specific disease, including diabetes mellitus, type II, to a compensable degree within a specified period. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this regard, 38 C.F.R. § 3.307(a)(6)(ii) requires that diabetes mellitus, type II, manifest to a compensable degree at any time after service. If a veteran does not have qualifying service for the application of the presumption of in-service herbicide agent exposure, then exposure to herbicide agents must be established on a facts-found basis in order for the presumption of service connection for an herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed 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)(iii). "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. Id. Additionally, this includes the territorial sea of the Republic of Vietnam, with the territorial seas of Vietnam "not exceeding 12 nautical miles," and is not limited to the landmass or inland waterways of that nation. Procopio v. Wilkie, 913 F. 3d 1371 (Fed. Cir. 2019). When presumptive service connection is not warranted, direct service connection must be considered. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed Cir. 1994). During the pendency of the claim, on August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) was enacted. The PACT Act provides that if a covered Veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity (TERA), then VA shall provide a VA examination and obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. 38 U.S.C. § 1168. The medical opinion shall address the total potential exposure through all applicable military deployments of the veteran; and the synergistic, combined effect of all toxic exposure risk activities of the veteran. Id. Any military service that qualifies for a presumption of exposure must be considered as a TERA. This includes all locations and other/occupational exposures based on herbicide agent exposures. See 38 U.S.C. §§ 501, 1112, 1116; see also Veterans Benefits Administration (VBA) Letter 20-22-10, Processing Claims Involving the PACT Act, 87 Fed. Reg. 78,543 (Dec. 22, 2022) at 9. Here, the record in this case is clear that the Veteran has a diagnosis of diabetes mellitus, type II, to include as documented in the March 2024 VA examination. Thus, the first element of service connection is satisfied. As diabetes mellitus, type II, is a disease subject to presumptive service connection, the Board turns to the asserted exposures to herbicide agents in service. For the reasons set out below, the Board finds that the evidence persuasively weighs against a finding that the Veteran was exposed to herbicide agents in service. In January 2024, the RO obtained a Records Research Center Response regarding the Veteran's service on Midway Island from November 1967 to November 1968, which stated that: "The following primary sources were reviewed in an attempt to substantiate the Veteran's claimed incident/event: the 1967 Command History Report submitted by the [Naval Air Station (NAS)] Midway Island. We requested records from Naval History and Heritage Command (NHHC), the custodian of US Naval historical records. NHHC was unable to provide the 1968 Command History Report for the NAS Midway Island or the 1967 and 1968 Command History Reports, ship history, or Aviation Historical Summary for the USS WEEHAWKEN. A review of the unredacted 2019 [Department of Defense (DOD)] Tactical Herbicide Location list failed to verify herbicide exposure as claimed by the Veteran. In conclusion, no evidence was located to support documentation of the claimed incident/event." The Board takes?judicial?notice?of the 2019 DoD List of Locations Where Tactical Herbicides and Their Chemical Components Were Tested, Used or Stored Outside of Vietnam ("2019 Tactical Herbicide Location List"). See https://www.publichealth.va.gov/docs/agentorange/dod_herbicides_outside_ vietnam.pdf (last visited June 18, 2025). This list was compiled by DOD in 2019 in response to a November 2018 Government Accountability Office (GAO) report and was based on thorough review of research, reports, and government publications. In January 2020, VA released an updated list to improve the accuracy and communication of this information. See U.S. Dep't of Defense, VA Releases Updated DOD List Identifying Agent Orange Sites Outside of Vietnam (Jan. 27, 2020), https://www.defense.gov/News/Releases/Release/Article/2065971/va-releases-updated-dod-list-identifying-agent-orange-sites-outside-of-vietnam/ (last visited June 18, 2025). Review of this list does not show that Midway Island is included among the locations where tactical herbicides and their chemical components were tested, used, or stored outside of Vietnam. In January 2024, the RO obtained Logbooks for the USS Stoddard, USS Picking, and USS Benner, where the Veteran was shown to have served in his service personnel records. In April 2024, VA Memoranda were associated with he claims file regarding records research conducted for the USS Stoddard, USS Picking, and USS Benner. In April 2024, the RO issued a formal finding of unavailability pursuant to 38 C.F.R. § 3.159. The RO informed the Veteran that they had contacted the NHHC in April 2024 to obtain Command History Reports dated 1968 and 1969 for the USS Stoddard; Command History Reports, Ship History, or Aviation Historical Summary dated 1969 and 1970 for the USS Picking; and the 1970 Command History Report for the USS Benner. The NHHC responded that there were "No Records Available". The RO requested that the Veteran submit any relevant records in his possession, including those set out above. Review of the April 2024 Final Attempt Letter shows that it was sent to the Veteran's last known address, copied to his representative, and not returned as undeliverable mail. Review of the claims file does not show that the either the Veteran or the representative sent a response. The Board notes that the RO issued a formal finding of unavailability with similar contents in September 2022. The principal difference is with regards to the USS Benner. The RO indicated that it had reviewed the ship history from 1944 to 1975 for the USS Benner, as provided by the Dictionary of American Naval Fighting Ships. Review of the September 2022 Correspondence shows that it was sent to the Veteran's last known address, copied to his representative, and not returned as undeliverable mail. Review of the claims file does not show that the either the Veteran or the representative sent a response. In April 2024, the RO associated a VA Memorandum with the claims file finding that: "Exposure to herbicides cannot be recognized as the evidence of record does not show the Veteran had service in a qualifying nautical location. Exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." The Veteran and representative were informed of the January 2024 Records Research Center Response and the April 2024 VA Memorandum in the April 2025 Supplemental Statement of the Case (SSOC). To date, nothing has been received in response regarding this crucial element of his claim. The Board acknowledges the Veteran's lay statements regarding his asserted in-service exposure. "Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2). Here, the Board finds that the Veteran is not competent to identify herbicide agents. Specifically, the record evidence has not shown the Veteran to be competent to identify by any of his own senses, such as sight, smell, or touch, that the substances he handled were in fact herbicide agents. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Such a scientific determination requires education and training that the Veteran has not been shown to possess. A layperson's generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The Board acknowledges that it previously found in the August 2023 remand that the Veteran is competent to state he unloaded 55-gallon barrels of "a substance" in service. However, this is not inconsistent with the present finding. As a lay person, the Veteran is capable of observing barrels and any labeling, but he lacks the expertise to identify whether a particular substance is in fact an herbicide agent. The Veteran indicated in his May 2023 Board hearing that he was not completely certain of what substance was contained in the barrels. He had merely observed an orange-colored band or marker and believed the barrels to contain herbicide agents, such as Agent Orange. Thus, although the Board has carefully considered the lay statements of record asserting herbicide agent exposure in service, the Board ultimately affords the objective evidence of record, which weighs against this finding, greater probative weight than the Veteran's lay statement. In sum, exposure to herbicide agents is not established on a facts-found basis, and the presumption of service connection for herbicide-related diseases is not for application. Turning to the other theories of entitlement, the Board finds that service connection is not warranted on this basis either. The presumption of service connection for chronic diseases such as diabetes mellitus is not for application here, as the Veteran was not shown to have diabetes in service or within one year of separation from service. 38 C.F.R. §§ 3.303(b), 3.307. Although the medical records indicate that diabetes was diagnosed during varying years in the early 2000s, at the earliest, it manifested decades after separation from service in August 1970. Specifically, in a February 2020 VA treatment record (Agent Orange exam), the Veteran stated that "He was diagnosed with diabetes mellitus, type 2, when he was found to have elevated blood sugars in the mid-1990s." Thus, the presumption does not apply. With respect to direct service connection, the Veteran's service treatment records (STRs) do not contain any record of complaints, treatment, or diagnosis of diabetes during service. The only mention of diabetes is the May 1967 Report of Medical History noting that the Veteran's father and grandparent had diabetes. Furthermore, the April 2013 VA Form 21-3101 (Request for Information) indicates that all his service records were associated with the claims file. In June 2018, the RO obtained a medical opinion against service connection. The examiner noted that the records were reviewed, and the Veteran was interviewed. Review of the claims file shows that the USS Stoddard and USS Benner were not shown to have operated in presumptive herbicide locations. Review of the STRs do not show any suggestion of diabetes having developed during service. Post-service medical treatment records show that, in April 2004, he complained of tingling or burning sensations in his feet. The Veteran reported an onset of diabetes in approximately the mid-1990s, and the beginnings of his peripheral neuropathy in 2004. The examination showed peripheral neuropathy consistent with that caused by diabetes and/or chronic alcohol use. The examiner noted that, after consideration of the available evidence, it is less likely than not that his peripheral neuropathy is due to diabetes during service as the Veteran did not develop diabetes during service or have any complaints or symptoms of neuropathy during service. In January 2024, the RO obtained a TERA Memorandum, showing that a TERA was established based on the Veteran's military occupational specialty (MOS) of torpedo man, which is associated with exposures to fuel products, diesel, JP-8, JP-4, industrial cleaning solvents, paint fumes, amine, carbon monoxide, monoethanolamide, and asbestos. In March 2024, the RO obtained a VA examination and medical opinion, which is against service connection, finding that diabetes was less likely than not caused by the indicated TERAs, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all the Veteran's TERAs. The examiner noted that the January 2024 TERA Memorandum was reviewed. The examiner noted that herbicide agent exposure was not conceded. The examiner noted that diabetes onset did not occur during or within one year of service. At the earliest, onset occurred in the early 1990s, or twenty years after military service. Risk factors outside of military service for developing diabetes mellitus include history of tobacco use and alcohol use. A November 2010 VA treatment record noted a history of both tobacco and alcohol use. The Board finds the opinions to be adequate and highly probative as to the nexus element of the claim because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board notes that neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment record that supports his claim. Without a competent (medical) opinion, the nexus element is not satisfied. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for the Veteran's diabetes mellitus, type II, is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M., 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.