Citation Nr: 1610636 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 09-31 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to toxic herbicide exposure and as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 through January 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Waco, Texas. In July 2014, the Veteran's claim was remanded for additional development. That development having been completed, the matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The record does not reflect that the Veteran served in Vietnam. 2. The most probative evidence of record fails to establish that the Veteran was exposed to asbestos while serving at Fort Ord, California or Hunter Liggett Military Reservation (HLMR). 3. The most probative evidence of record fails to establish that the Veteran was exposed to toxic herbicides while serving at Fort Ord, California or HLMR. 4. The Veteran's diabetes mellitus was initially diagnosed many years after service, and the most probative evidence of record fails to show that the disease is causally related to his military service, to include exposure to toxic herbicides. CONCLUSION OF LAW The Veteran's diabetes mellitus was not incurred in or aggravated by active service, and is not presumed to have been so incurred or aggravated, including as a result of exposure to toxic herbicides or asbestos. 38 U.S.C.A. §§ 1110, 1131, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), (e) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board remanded this matter in July 2014. The Board specifically instructed the Agency of Original Jurisdiction (AOJ) to provide the Veteran with an examination to address the nexus between the Veteran's current diabetes and his alleged exposure to Agent Orange during his service. The Veteran was afforded a VA examination in August 2014. As discussed more fully below, this examination was adequate, and the Veteran's claim was readjudicated in a November 2014 Supplemental Statement of the Case. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claim, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Letters from VA dated in November 2007 and February 2008 notified the Veteran of how to substantiate a service connection claim. The letters notified the Veteran of the allocation of responsibilities between himself and VA, and of how ratings and effective dates are assigned. Therefore, the duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's service treatment records and private treatment records are in the claims file with the exception of records from Dr. S. A. The RO sent a request to Dr. S.A. requesting the Veterans treatment records in December 2007 and no response was received. In February 2008, the RO sent a second request to Dr. S.A. and a notice to the Veteran about the second attempt. The notice identified the information it sought to obtain, provided an explanation of the efforts the RO had made to obtain them, including the second request, provided and explanation of how the RO would proceed with the claim if the information was not received, and informed the Veteran that it was ultimately his responsibility for providing the evidence. This action satisfied VA's duty to assist the Veteran in developing his claim. See 38 U.S.C.A. § 3.159(e). Dr. S.A. responded to the second request in February 2008 indicating that his offices had been closed and the files had been destroyed in accordance with Pennsylvania law. The Veteran's VA treatment records, including records from VA Medical Centers (VAMCs) from Big Spring; Fayetteville, North Carolina; Butler; Amarillo; and Albuquerque, have been associated with his claims file. With respect to the Veteran's reported toxic herbicide exposure, the RO conducted development to determine whether the Veteran was exposed to toxic herbicides while on duty at Fort Ord, California and HLMR. The Board requested the Veteran's service treatment records (STRs) and personnel records. The Veteran's STRs and personnel records were received and associated with his claims file. The records did not indicate that the Veteran had been stationed in Vietnam or other recognized areas, including locations in the United States, where toxic herbicide exposure would be conceded. Following the procedures set forth in M21-1, Part IV, Subpart ii.1.H.7.a, in a November 2009 letter the RO requested the Veteran provide the approximate time when he alleges he was exposed to toxic herbicides. The Veteran responded in December 2009 listing the dates as September 1969 through January 1971. These dates, as well as the Veteran's information were submitted in a February 2010 Joint Service Records Research Center (JSRRC) request to review the Department of Defense (DOD) inventory of herbicide operations to determine if the Veteran had been exposed as alleged. JSRRC requested in May 2010 that the dates be narrowed to 60-day windows when he was most likely exposed. This request was communicated to the Veteran in a May 2010 letter. The Veteran did not initially respond and a formal finding of lack of information required to verify toxic herbicide exposure was made in June 2011. It was not until the Veteran's June 2013 response to the May 2013 SSOC that the Veteran identified three periods where exposure most likely occurred: November-December 1969; April 1969; and November-December 1970. This information was supplied to the JSRRC to determine if the Veteran was exposed to toxic herbicides. In June 2013, JSRRC indicated there was no documentation of spraying, testing, transporting, storage, or usage of Agent Orange at HLMR or Fort Ord, California. Further, the Department of Defense (DOD) listing of herbicide spray areas and test sites outside the Republic of Vietnam did not include HLMR or Fort Ord during the times the Veteran submitted. In April 2014, a formal finding was made that there was insufficient evidence to concede the Veteran was exposed to herbicides. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2015). The Board observes that the Veteran was afforded a VA examination to assess the nature and relationship of the Veteran's diabetes mellitus in relationship to his alleged exposure to toxic herbicide in accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran asserted in November 2014 and December 2014 that the examination was inadequate, but as discussed more fully below, the examination was adequate and satisfied VA's duty to provide a medical examination. The Board finds that there is sufficient evidence to decide this claim, and that further medical opinion is not necessary to decide the claim for service connection for diabetes mellitus II. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). The Veteran did not request a hearing before a Veteran's Law Judge. Additionally he submitted a waiver in December 2014, to waive his right to have any additional evidence considered by the RO. All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Accordingly, the Board will proceed to a decision as to the issue on appeal. Legal Criteria In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to toxic herbicides. See 38 U.S.C.A. § 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Diabetes mellitus is one such disease. 38 C.F.R. § 3.309(e) (2015). Presumptive service connection for diabetes mellitus as a result of toxic herbicide exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) (2015) are met, which include a presumption of exposure to herbicides for Veterans with service in Vietnam during specific time periods, or service in specific areas of Korea during specific time periods. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309(e) (2015). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) (2015) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record and verified through the appropriate service department or other sources, the presumption of service connection found in 38 C.F.R. § 3.309(e) (2015) for herbicide-related diseases is applicable. Alternatively, diabetes mellitus is a chronic disease subject to presumptive service connection if it manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Notwithstanding the foregoing discussion regarding presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which developed years later. Actual causation carries a difficult burden of proof. See Combee, 34 F.3d at 1042. Analysis As a preliminary matter, the Board notes the Veteran has met the first Hickson element of a current disability. The Veteran was diagnosed with diabetes mellitus in August 2007 at the Big Spring VAMC. He has continued to carry the diagnosis and it was confirmed by the VA examiner in August 2014. The majority of the Veteran's contentions revolve around the second Hickson element, an in-service incurrence or aggravation of a disease or injury. In this case, that would entail exposure to asbestos, exposure to toxic herbicides, an in-service manifestation of diabetes mellitus, or a manifestation of diabetes mellitus to the ten percent level within one year of leaving service. The Veteran's STRs do not indicate an in-service manifestation of diabetes mellitus. Further, the Veteran was not diagnosed with diabetes mellitus until August 2007, which was decades after his end of service date in January 1971. Therefore, the evidence does not establish the second Hickson element though an in-service manifestation or manifestation to ten-percent within one year. The Veteran has alleged service connection for diabetes mellitus based on exposure to asbestos from handling allegedly contaminated clothing and equipment as clerk in his October 2007 claim. The Veteran's military personnel records do not indicate the Veteran ever served as a clerk in service. There is a reference to employment prior to service as a clerk, however, his in-service military occupational service specialty (MOS) was as a light weapons infantryman. There is no evidence of a secondary MOS. Further, the Veteran's primary duties at Fort Ord and HLMR included assistant gunner, grenadier, and personnel carrier driver; his service records make no mention of the Veteran working as a clerk or in any other capacity where he would have encountered clothing and equipment from troops returning from Vietnam. In connection with the Veteran's statement that he was a clerk, he stated in December 2014 that he attended supply school at Fort Lewis in January and April 1970. The Veteran's record does not indicate he was ever at Fort Lewis for training, or that he received any supply training elsewhere. The contradiction between the Veteran's statement and his military personnel records goes to his credibility regarding what occurred during service. Regardless, there is no presumption of "secondary exposure" to asbestos based on handling equipment or clothing once used in Vietnam or elsewhere. The Veteran is not competent to determine what substances may have been on the clothing and equipment returning from Vietnam or elsewhere. Therefore, the Board finds the Veteran's statements regarding secondary exposure to asbestos are not credible; thus, the evidence does not establish secondary exposure to asbestos. The Veteran has also alleged service connection for diabetes mellitus based on exposure to toxic herbicides in his October 2007 claim. Specifically, he alleged that he had been exposed at Fort Ord by coming into contact with clothing and equipment returning from Vietnam that had been contaminated. His December 2007 statement in support of his claim adds that he was a member of Combat Developments Command Experimentation Command (CDCEC) and was sprayed with Agent Orange during testing at Fort Ord and HLMR. The Veteran has never alleged any qualifying service in Vietnam or Korea. The Veteran's service personnel records, including his DD Form 214, indicate that he did not have any overseas service, which would preclude service in Vietnam. Thus, the Veteran's service does not fit the conditions required to presume he was exposed to toxic herbicides in service. 38 U.S.C.A. § 1116 (West 2014). Since the Veteran is not entitled to the presumption exposure to toxic herbicides, actual exposure to herbicides must be verified through the appropriate service department or other sources. There is no credible evidence that the Veteran was directly exposed to toxic herbicides during the course of duty. As noted above, the Veteran has stated that he was subject to experiments at Fort Ord and HLMR that exposed him to toxic herbicides. These contentions were reiterated in his November 2008 notice of disagreement (NOD) and December 2008 NOD, as well as in subsequent correspondence from December 2008, August 2009, October 2012, November 2014, December 2014, January 2015, and March 2015. In his November 2014 Form 781, the Veteran elaborated on the alleged secret experiments at Fort Ord and HLMR He stated that he was he was sprayed with at least one compound that was mixed with 2,3,7,8-tetrachlorodibenzondioxin (TCDD). He also asserted that he was part of an experiment on the effects of the use of Agent Orange. He made similar statements in his November 2014 NOD. While the Veteran is competent to describe the events that he observed and the experiences he had, the Veteran is not competent to identify the chemical makeup of the substances he was exposed to because such a finding requires special training and expertise that he does not have. 38 C.F.R. § 3.159(a) (2015). The Veteran partially conceded this lack of expertise when, in the same statement, he said he did not fully know the exact nature of the substance. Further, he did not provide an explanation as to how he knew what these substances were. The Board does not find the Veteran's statement probative on the subject of primary exposure to toxic herbicides and assigns it no weight. In November 2014, the Veteran also submitted a list of eleven references that he said supported his assertion that Agent Orange was used at Fort Ord and HLMR. These references were also referred to in a December 2014 correspondence from the Veteran. These are addressed individually below. Reference numbers one, two, four, five, and six are excerpts from BVA decisions where other veterans have alleged exposure to toxic herbicides at Fort Ord or HLMR. In none of these excerpts is there a statement or evidence that indicates the veteran making the allegation is competent to state any substance they were exposed to was a toxic herbicide or Agent Orange. References one and six allege exposure during a time the Veteran in this case was not stationed at Fort Ord or HLMR. The other references make no notation as to the time exposure was alleged. These allegations lack probative value because they do not provide evidence as to whether the Veteran in this case was exposed to toxic herbicides during his period of service. References five and six also contain references to a memo from the Department of the Army indicating the use of herbicides that included 2-4-5 T and 2-4 D at Fort Ord. The records referenced only dated back to January 1973. The Veteran has not submitted this memo to the Board as part of his claims file, so it cannot be evaluated. However, the Board notes that since the memo only provided information on the use of herbicides from January 1973 forward, it would not be probative to Veteran's claim because Veteran's last service date was in January 1971. Additionally, a Wikipedia article was referenced that indicated that 2-4-5T was a form of Agent Orange. While the article provides some context to the substance of the memo, it does not address the issue of the Veteran's exposure to toxic herbicides. Therefore, this evidence is not probative to the case at hand. Reference number three is an excerpt from an article posted on Facebook that suggests that drums of Agent Orange were buried at Fort Ord and HLMR. This suggestion is based on drums being unearthed at an entirely different location. No reasoning was supplied to support the assertion. Further, the Veteran is not alleging exposure based on the storage of a toxic herbicide. Therefore, this evidence is not probative to the Veteran's claim. Reference number seven appears to be a post from an online diabetes forum. In the post, a veteran stated that while stationed at Fort Ord in 1968 he noticed a distinctive smell that he was informed was Agent Orange. It also references an Environmental Protection Agency (EPA) cleanup of Fort Ord. Similar to the above references, this one does not deal with the period of time the Veteran in this case was stationed at Fort Ord. Further, there is no indication that the veteran who posted the message or the person who told him the smell was Agent Orange was competent to do so. Specifics of the EPA cleanup are not provided, and the statement does not speak to whether toxic herbicides were used while the Veteran was stationed at Fort Ord. This evidence is not probative. Reference number eight is from an unknown source that describes chemicals of concern at the Fort Ord superfund cleanup site. There is an assertion that some of the chemicals of concern are components of Agent Orange and there is chemical description of Agent Orange from a Wikipedia page. The chemicals identified in the superfund cleanup do not match the chemicals identified in the Wikipedia page as making up Agent Orange. Even if the chemicals matched, there is no indication that the information from Wikipedia is accurate. Further, even if the chemicals did match and the Wikipedia page was accurate, neither speak to when the alleged contamination occurred and are not probative to whether the Veteran was exposed to toxic herbicides while he was at Fort Ord or HLMR. Reference number nine is an excerpt from an article from International Business Times that stated there were "multiple reports" that indicate Agent Orange was stored used and buried at Fort Ord. These reports were not identified, nor are the sources of these reports provided. Further, there were no dates associated with the reports or the period of time during which the reports allege Agent Orange was stored. Finally, the Veteran did not allege exposure from the storage of Agent Orange. This evidence is not probative the Veteran's claim. Reference number ten is an excerpt from a BVA opinion posted on a blog that indicates that proper development procedures were not followed in the case a veteran alleged that he was exposed to herbicides at Fort Ord. In the present case, the development procedures in the M21-1 were followed. The veteran's allegations in the excerpt do not specify a time or how he was competent to state the substance he was exposed to was a toxic herbicide. This evidence is not probative to the Veteran's claim. Reference number eleven is a Facebook post that indicates that Agent Orange was documented at Fort Ord. The excerpt does not provide any facts to support the assertion. It does contain a reference to a BVA opinion, which happens to be the same opinion in reference number 5. As explained above, that opinion was not probative to the claim at hand because it relates to a period of time the Veteran was not stationed at Fort Ord. The Facebook post does not add any probative information to this claim. The Board also notes the Veteran included excerpts from an EPA cleanup report at Fort Ord in his correspondence in January 2015. This correspondence did not provide a source for the information. The report is not part of the record. The Veteran stated this report showed he was exposed to Agent Orange while at Fort Ord. Without the report to evaluate, this statement has little probative value. The Board also notes that even if the report did show Agent Orange was being cleaned up at Fort Ord, it would not speak as to when and how the Agent Orange was used. It, therefore, would not be probative to the issue of whether the Veteran was exposed to toxic herbicides during his service at Fort Ord or HLMR. Cumulatively, the evidence presented by the Veteran provided some suggestion that Agent Orange might have been used at Fort Ord or HLMR at some point in time. However, none of the evidence noted above included a positive identification of a toxic herbicide or Agent Orange by a competent source, nor does any of the evidence suggest these substances were used or stored at Fort Ord or HLMR at the time the Veteran was stationed there. It provides little probative value and is given little weight. However, the reports from the JSRRC are highly probative. The JSRRC reports directly correspond to the time the Veteran identified as when he was exposed. These reports indicate that there is no documentation to support that toxic herbicides were sprayed, tested, transported, stored, or used at Fort Ord or HLMR. Further, the reports indicated the DOD listing of herbicide spray areas and test sites outside the Republic of Vietnam did not include Fort Ord or HLMR during the times the Veteran identified. This evidence is significantly more probative than the evidence submitted by the Veteran as it both related to the time the Veteran was at Fort ORD and HLMR and that it comes from a source that is competent to report on the nature and substance of toxic herbicides. The Board gives this evidence great weight. Based on the above facts, the Board concludes that the evidence does not establish the Veteran had direct exposure to toxic herbicides while in service. The Veteran's alternative theory of exposure to toxic herbicides is that as a clerk he handled uniforms and equipment that was allegedly contaminated. This allegation was made in the original October 2007 claim and was reiterated in his November 2008 notice of disagreement (NOD) and December 2008 NOD, as well as in subsequent correspondence from December 2008, August 2009, October 2012, November 2014, December 2014, January 2015, and March 2015. As noted above, the Veteran's military personnel records do not indicate the Veteran ever served as a clerk in service and there is evidence that directly contradicts the allegations. See above discussion regarding the Veteran's service personnel records and listed duties. The Board finds the Veteran's statements regarding secondary exposure to toxic herbicides are not credible; thus the evidence does not establish secondary exposure to toxic herbicide. Even if the Veteran had served as a clerk and handled clothing and equipment returning from Vietnam, there is no presumption of "secondary exposure" to toxic herbicide based on handling equipment once used in Vietnam. The Veteran is not competent to identify the substances that were on the clothing and equipment because such a finding requires special training and expertise that he does not have. 38 C.F.R. § 3.159(a) (2015). Moreover, the Court has held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, the evidence does not establish the second Hickson element, and the claim fails on this basis. Nevertheless, for the completeness, the Board will address the third Hickson element, a medical nexus. In July 2014, the Board remanded the Veteran's case to the RO to obtain a medical nexus opinion on whether the Veteran's alleged toxic herbicide exposure was related to his current diabetes mellitus II. The Veteran was provided this examination in August 2014. The examiner concluded it was less likely than not that the Veteran's diabetes mellitus was incurred in or caused by an in-service event, injury, or illness. The examiner reviewed the Veteran's claims file and conducted an in person examination. She stated that the Veteran was not exposed to any known Agent Orange "hot spots" in the United States and then addressed the Veteran's claim of secondary exposure through contaminated uniforms. She noted there were no expert opinions or reports regarding Agent Orange exposure from uniforms. She also stated there are many varying factors that were left to speculation with such a claim of exposure from contaminated uniforms, such as: where the uniforms were kept; whether the uniforms from returning soldiers actually had Agent Orange on them; whether the soldiers were wearing the uniforms; and whether the soldiers had a lot of sun exposure, which could break down dioxin. The examiner stated she did not believe the Veteran's possible exposure significant enough based on current information from the Department of Public Health. She then provided two possible alternative causes of the Veteran's diabetes mellitus II: high BMI and poor control of his diabetes based on his food intake and exercise routine, and a family history of diabetes. The Veteran asserted the August 2014 examination was cursory and not accurate in November and December 2014 correspondence. He states that the examiner did not know the purpose of the examination. The examiner, however, directly addressed the questions posed in the examination request. Further, she did not indicate that she was unsure of what the examination was for in the report. Therefore, the Veteran's assertion that she did not understand the purpose of examination is not persuasive. The Veteran also asserts that the examiner's statements about his BMI and family history as being possible alternative causes of his diabetes mellitus were irrelevant and inaccurate. Specifically, he stated that he had gained 100 pounds since starting insulin and that he has no family history of diabetes, noting neither his parents nor siblings have had diabetes. While most of the records do indicate the Veteran denied a family history of diabetes, December 2007 treatment records from Big Spring VAMC show the Veteran indicated his maternal aunt had diabetes. These contradictory statements can be resolved by viewing his November 2014 statement about having no family history in the context of him believing family history referred to his immediate family, as he indicated. The Veteran is not competent to testify as to the medical implications of an immediate family history of diabetes versus an extended family history of diabetes. The examiner, however, is competent to discuss these implications and their relationship to the Veteran's diabetes, as she is a medical expert. Similarly, the Veteran was not competent to assert that the examiner's statements about his BMI were irrelevant to his diabetes. Although, the Veteran asserts the high BMI was associated with starting insulin, the medical evidence indicates in August 2007, when he was diagnosed with DMII, he had a BMI of 48.5. At the August 2014 examination he had a BMI of 51, suggesting his BMI did not undergo a significant increase since he began insulin. Further, the Veteran is not competent to testify as to the effect of his BMI on his diabetes. The examiner was competent to testify to its possible effects. The Board therefore finds the opinion adequate and probative. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Finally, in a December 2014 correspondence, the Veteran also made reference to a C&P examination conducted in September 22, 2008. He states that a Dr. C. C. examined him and told him that his symptoms and health issues could only be explained by Agent Orange exposure. The Veteran asserts the examination is in the record and that it also indicates that there was no family history of diabetes mellitus in that examination report. The examination in question was an Agent Orange Registry Examination from September 2008 performed at the Big Spring VAMC. The examination report does not contain any statements that the Veteran's symptoms or health conditions were caused by Agent Orange, nor did it conclude that the Veteran was exposed to Agent Orange. It contains the Veteran's reported exposure history, medical history, and the results of a physical examination. The examination report does not provide a nexus opinion, nor does it confirm exposure to toxic herbicides. In short, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit-of-the-doubt rule does not apply. The claim for service connection for diabetes mellitus must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus II, to include as secondary to toxic herbicide exposure and as secondary to asbestos exposure, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs