Citation Nr: 0512980 Decision Date: 05/12/05 Archive Date: 05/25/05 DOCKET NO. 02-00 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus associated with herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nathan Paul Kirschner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for diabetes mellitus associated with herbicide exposure. In February 2003, a Travel Board hearing was held before Michelle Kane, who is the Acting Veterans Law Judge rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The Board remanded this case for further development by the RO in July 2003. After the requested development was completed the RO continued the denial of service connection for the veteran's claimed condition. FINDINGS OF FACT 1. The veteran did not serve in Vietnam and there is no credible evidence showing he ever had duty or visitation in Vietnam. 2. There is no competent evidence of actual exposure to herbicides during service. 3. There is no medical evidence linking the appellant's current diabetes mellitus to his active military service. CONCLUSION OF LAW The appellant did not incur diabetes mellitus as a result of his military service, nor can this condition be presumed as incurred therein. 38 U.S.C.A. § 501(a), 1101, 1110, 1112, 1113, 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The appellant asserts that service connection is warranted for diabetes mellitus associated with herbicide exposure. He asserts that he was exposed to herbicide while cleaning spillage from 55-gallon drums at Korat Royal Thai Air Force Base (RTAFB) in Thailand between 1970 and 1972. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e) 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. §§ 501(a), 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, diabetes mellitus and soft- tissue sarcomas. 38 C.F.R. § 3.309(e). In addition, certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if the specified disease becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-452, § 5, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The veteran's personnel records show that he was part of the 388 Supply Sq. and was stationed at Korat RTAFB in Thailand. The Board acknowledges the representative's statements to the effect that the veteran received the Republic of Vietnam Gallantry Cross, and submission of photographs alleging that the veteran was stationed in Vietnam. However, the veteran's personnel records, his own statements and his testimony before the Board show explicitly that he was not stationed in Vietnam but in Thailand. See e.g. Statement in Support of Claim from October 2002. As such he is not entitled to the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii). The Board will therefore examine whether a factual basis exists to support the appellant's claimed exposure to herbicides in service. The Board finds that there is no objective factual basis upon which to conclude that the veteran was exposed to herbicides. The claims file contains a statement by the veteran alleging that he cleaned up "spillages" of Agent Orange. See Statement in Support of Claim from October 2002. However, during the Travel Board hearing in February the veteran states that he was told to "clean up spillages of 55 gallon barrels" in an area sectioned off for authorized personnel. The veteran further testified that he had no idea whether the spills were Agent Orange. There were no markings on the barrels that identified the contents as such. He now believes the spills were Agent Orange because "afterwards I learned it was CIA operations [...] under Operation Ranch Hand." There is no other evidence to support the allegation that the spills the veteran cleaned up were Agent Orange. As such the Board finds that the veteran was not exposed to herbicides and is not entitled to the presumption of service connection for his diabetes mellitus under 38 C.F.R. § 3.307(a) and 3.309(e). The Board must now determine whether service connection on a direct basis is warranted. See Combee. The veteran's service medical records show no in-service complaint, treatment or diagnosis of diabetes mellitus. The relevant post-service medical records include two VA hospital discharge summaries from July 2000 and August 2000. Both VA discharge reports note that the veteran was diagnosed with diabetes mellitus, type II, in July 2000. The Board finds that service connection for diabetes mellitus is not warranted. There is no record of in service complaint, diagnosis, or treatment for diabetes mellitus. There is no evidence that the veteran's diabetes mellitus was incurred or aggravated in service or within the one-year presumptive period. Also, the Board points out that the first report of treatment for diabetes mellitus comes approximately 37 years after service. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Finally, the Board finds that there is no competent evidence in the record to show that the veteran's diabetes mellitus is related to service. Accordingly, the veteran's claim must be denied. The Board has considered the veteran's lay statements regarding his diabetes and exposure to herbicides. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. The Board finds that the preponderance of the evidence is against the veteran's claim. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). II. VCAA On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court also held that VA must request that the claimant provide any evidence in his possession that pertains to the claim. Id. This "fourth element" comes from the language of 38 C.F.R. § 3.159(b)(1). The Board finds that the VCAA notice requirements have been satisfied by virtue of a letter sent to the veteran in February 2004. Since this letter fully provided notice of elements (1), (2), and (3), see above, it is not necessary for the Board to provide extensive reasons and bases as to how VA has complied with the VCAA's notice requirements. See Mayfield v. Nicholson, No. 02-1077, slip op. at 33 (U.S. Vet. App. Apr. 14, 2005). With respect to element (4), the Board notes that the RO's February 2004 letter contained a specific request that the veteran provide any additional evidence in support of his claim. He was asked to tell VA about any other records that might exist to support his claims, and was informed that he should "[s]end the information describing additional evidence or the evidence itself" to the RO. In addition, he was supplied with the complete text of 38 C.F.R. § 3.159(b)(1) by way of a December 2004 SSOC. The VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. Here, the RO satisfied its duty to assist the veteran by obtaining his available service, VA and non-VA medical records. He has been not been afforded a VA examination for his diabetes, and an etiological opinion has not been obtained. The Board concludes, however, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the evidence, discussed infra, which indicates that the veteran did not receive treatment for the claimed symptoms during service, or that there is nexus between the claimed condition and his service, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2004); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). ORDER Service connection for diabetes mellitus is denied. ____________________________________________ MICHELLE KANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs