Citation Nr: 0502092 Decision Date: 01/28/05 Archive Date: 02/07/05 DOCKET NO. 03-01 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for diabetes mellitus as secondary to herbicide exposure. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and a friend ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from November 1961 to November 1963. This matter is on appeal to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In June 2004, the appellant provided testimony at a Board hearing held at the RO before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The veteran never served in the Republic of Vietnam during the Vietnam era; thus, he is not presumed to have been exposed to herbicides in service. 2. Diabetes mellitus was not shown in service or for many years thereafter, nor was it disabling to a compensable degree during the first post service year. 3. The veteran's diabetes mellitus has not been linked to active service on any basis and his exposure to herbicides during service has not been established by competent evidence. CONCLUSION OF LAW Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to be due to service to include as secondary to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), (e) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria To establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The United States Court of Appeals for Veterans Claims (CAVC) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may 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). If not shown during service, service connection may be granted for presumptive disease such as diabetes mellitus if shown disabling to a compensable degree during the first post service year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2004). This rule does not mean that any manifestation in service will permit service connection. To show 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The CAVC has also reiterated that, alternatively, either or both of the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97). The CAVC has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the CAVC's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A lay person is competent to testify only as to observable symptoms. 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, 10 Vet. App. at 495-97. The CAVC has further determined chronicity was not demonstrated when the sole evidentiary bass for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66. In Voerth v. West, 13 Vet. App. 117 (1999), the CAVC held that the appellant had not submitted medical evidence providing a nexus between an in-service injury and a current disability. The CAVC held that where a claimant's personal belief, no matter how sincere, was unsupported by medical evidence, the personal belief cannot form the basis of a claim. The CAVC stated that it clearly held in Savage that section 3.303 does not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Until the claimant presents competent medical evidence to provide a relationship between a current disability and either an in-service injury or continuous symptomatology, the claimant cannot succeed on the merits of the claim. Voerth, 13 Vet. App. at 120. 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, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). VA General Counsel has stated that service in a deep-water vessel in waters offshore of the Republic of Vietnam does not constitute service "in the Republic of Vietnam." See VAOPGCPREC 27-97. 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 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, type II diabetes mellitus, 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). The term "soft-tissue sarcoma" includes epithelioid sarcoma. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within thirty years, after the last date on which the veteran was exposed to a herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Sec. 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600, 42,604 (June 24, 2002). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit (CAFC) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In the regulations implementing the Veterans Claims Assistance Act of 2000 (VCAA), competent lay evidence is defined as 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R § 3.159(a)(1). In the regulations implementing the VCAA, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R § 3.159(a)(2). See also, Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2004). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 Analysis Preliminary Matter: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), was enacted on November 9, 2000, after the veteran filed his claim in June 2000. This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. VA issued regulations to implement the VCAA in August 2001. The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which were effective August 29, 2001. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). VA has stated that the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA. 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The August 2001 rating decision, January 2003 statement of the case, February 2004 supplemental statement of the case, and VA letters in July 2000, November 2000 and May 2003 read together apprised the veteran of the information and evidence needed to substantiate his claim for service connection, the laws applicable in adjudicating the appeal, and the reasons and bases for VA's decision. Furthermore, these documents outline the specific medical and lay evidence that was considered when the determinations were made. In particular, in a May 2003 letter, the veteran was informed of the enactment of the VCAA and was advised to identify any evidence in support of his claim that had not been obtained. He was also advised of the evidence he needed to submit to show that he was entitled to service connection for diabetes mellitus. The letter further informed him that VA would obtain his service medical records, VA records, and other pertinent federal records. He was informed that VA would also make reasonable efforts to obtain any identified private medical evidence. However, it was ultimately his responsibility to submit any private records. As such, the Board finds that the correspondence satisfied VA's duty to notify the veteran of the information and evidence necessary to substantiate his claim as required by Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that, in a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, (PVA), 345 F.2d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (CAFC) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1). The CAFC concluded that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. However, a year passed since the May 2003 letter was sent to the veteran by the RO. In addition, the RO reviewed the claim in February 2004 as evidence in the supplemental statement of the case and the veteran had a Board hearing in June 2004. Accordingly, the Board concludes that the veteran has been provided statutorily sufficient time and opportunity to submit evidence in support of his claim. Also, it must be noted that the President signed a technical amendment to clarify that the time limitations for submitting evidence in the VCAA do not prevent VA from issuing a decision before expiration of that time period. Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § ____). It is also noted that a recent case of the CAVC held that compliance with 38 U.S.C.A. § 5103 required that the VCAA notice requirement be accomplished prior to an initial unfavorable agency of original jurisdiction decision. Pelegrini v. Principi, 18 Vet. App. 1112 (2004) (withdrawing and replacing Pelegrini v. Principi, 17 Vet. App. 412 (2004)). Here, the veteran's formal VCAA notification letter was sent in May 2003, after his claim was initially denied. However, the record as noted reflects a conscientious effort on VA's part to develop facts pertinent to the claim and in so doing the VA contacted the service department to locate exposure information and the RO also obtained a substantial record of VA treatment in response to the veteran's statement regarding a favorable statement/opinion. Thus he had ample assistance from VA in developing the facts pertinent to the claim before and after the notice so the timing of the notice is not a material issue at this point, albeit a technical Pelegrini violation. That decision did not preclude VA from establishing harmless error. The CAVC in Pelegrini also held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). As discussed above, the Board has found that the veteran was provided every opportunity to identify and submit evidence in support of his claim. See also, VAOPGCPREC 01-04. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been satisfied, any error in not providing a single notice to the veteran covering all content requirements with specificity is harmless error. The Board must observe that the appellant submitted a substantial amount of material at the hearing in response to the invitation to submit evidence that was felt to support the claim. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate the claim that has been addressed in this decision. His service medical records and VA treatment records are included in the file. He was afforded a VA examination for Agent Orange in 1997. However, another examination was not necessary in this case because the record contains sufficient evidence to make a decision on the claim. The veteran has been accorded ample opportunity to present evidence and argument in support of this appeal and has associated it with the record. Hence, VA's duty to assist the veteran in the development of the veteran's claim has been satisfied. Turing to the merits of the claim the veteran's service medical records are negative for any evidence or findings of diabetes mellitus. His service personnel records, and record of service (DD-214), are negative for any documentation of his ever having served in Vietnam. The service at Fort Ord and Camp Roberts, where the veteran contends the exposure occurred, is confirmed there as well as in service medical record entries. In March 2001 the service department reported not having located evidence of herbicide exposure. In summary, the medical evidence shows that the veteran received a VA Agent Orange examination in 1997 that listed diabetes in the diagnostic assessment. Prior and subsequently dated VA medical treatment collectively reports new onset diabetes with positive family history. A VA examiner in 2001 reported type II diabetes mellitus with retinopathy by history and almost certainly with peripheral neuropathy. The veteran has asserted beginning with the Agent Orange examination in 1997 and recently in hearing testimony (inter alia p. 3-8, 15) that his exposure to herbicides occurred in testing at Fort Ord and Camp Roberts. He recalled at the 1997 examination that he served there as a cook and his unit was involved in testing Agent Orange on tanks, vegetation and personnel at "Hunter Liggett". His exposure statement in May 2001 recalled that he was continuously exposed to soldiers who were working with Agent Orange and that the mess facility was within a few feet of the area where Agent Orange was sprayed and he was exposed directly through air and the soldiers going through the mess facility. At the recent Board hearing the veteran submitted a substantial amount of documentary evidence regarding VA benefit matters and litigation that involved herbicides/Agent Orange. An undated report entitled "Exposure to Agent Orange Outside of Vietnam" noted confirmed use at Fort Drum, New York in 1959, but did not list the veteran's base as one where spraying had been alleged. A report prepared in 1995 regarding Ft. Ord in the program to complete toxic cleanup of military facilities noted the base was a Superfund site and had a serious unexploded ordinance problem and that clean up was well underway at several of the most polluted sites. The report noted the various types of "common" contaminants found at defense installations and listed Agent Orange among "Unique Military Wastes." A list of Army projects referred to Fort Ord but did not list herbicides as being a material assessed there. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (1999) (observing that, in a case where the claimant was also a physician, and therefore a medical expert, the Board could consider the appellant's own personal interest); citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that while interest in the outcome of a proceeding "may affect the credibility of testimony it does not affect competency to testify." (citations omitted)). The Board reiterates the basic three requirements for prevailing on a claim for service connection. To establish entitlement to service connection, there must be (1) competent evidence of a current disability (a medical diagnosis) Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence) Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence) Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). See Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran has met the first requirement to prevail on a claim of entitlement to service connection; that is, he has the disability at issue claimed as type II diabetes mellitus. He does not satisfy the other basic two requirements for prevailing on a claim for service connection. That is, there is no evidence of incurrence or aggravation of type II diabetes mellitus in service, such disorder is not shown disabling to a compensable degree during the first post service year, nor is there any competent and probative medical evidence which relates the disorder to service on any basis. Although the veteran stated in his notice of disagreement that on a specified date that a VA physician told him his "condition" was likely related to "the exposure" during military service, the record was obtained and it did not reflect any such statement or opinion. The report showed a neurology evaluation for peripheral neuropathy. In addition such a statement made undoubtedly based on history related by the appellant is not competent medical evidence. See e.g., Le Shore v. Brown, 8 Vet. App. 406, 409 (1995). The Board notes that special criteria apply to the veteran's case; however, he does not satisfy those criteria. The veteran never served in Vietnam and therefore his diagnosed type II diabetes mellitus may not be presumed to have been incurred in service. Instead, the veteran states that his exposure to herbicides took place in connection with his service at Fort Ord. There is no service department documentation of his herbicide exposure as claimed. In addition, the information added at the Board hearing does not indicate herbicides were a substance found at Ft. Ord or that the base was surveyed for herbicides. Unfortunately the information serves to support the service department finding of no evidence of exposure rather than undermine it. Although it is important information in the context of this case it serves to place the preponderance of the competent evidence against the claim on the crucial element of exposure to herbicides/Agent Orange. The veteran is a lay person who has expressed an opinion relating his diabetes mellitus to service. He is not competent to address causation or etiology of his diabetes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Here there is the positive family history that is often noted in the medical records. It is noteworthy that the references to positive family history of diabetes appear consistently in the record after the Agent Orange examination in 1997 when the veteran was noted as having the disease. More recent records do not list herbicide exposure as an alternative etiology for his adult onset diabetes. Similarly, the Board is not competent to supplement the record with its own unsubstantiated medical conclusions, and certainly cannot oppose the competent VA medical opinion of record. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board's application of the pertinent governing laws and regulations does not permit a grant of entitlement to service connection for diabetes mellitus, type II on any basis, including as secondary to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(d), 3.309(e) (2004). Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus as secondary to herbicide exposure is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs