Citation Nr: 1110030 Decision Date: 03/14/11 Archive Date: 03/24/11 DOCKET NO. 10-04 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus claimed as a result of herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as a result of herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as a result of herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as a result of herbicide exposure. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as a result of herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This appeal arises from a June 2009 rating action of the Department of Veterans' Affairs (VA) Regional Office (RO), located in Columbia, South Carolina, that denied service connection for diabetes mellitus and for peripheral neuropathy of the right and left upper extremities and the right and left lower extremities, claimed as a result of herbicide exposure. In May 2010, the Veteran presented testimony at a videoconference hearing with the undersigned Veterans' Law Judge. A transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. The VA has fully informed the Veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. Diabetes mellitus was not noted in service or within a year following service, and is not the result of claimed herbicide exposure during service. 3. Peripheral neuropathy of the right upper extremity was not noted in service and is not the result of claimed herbicide exposure during service. 4. Peripheral neuropathy of the left upper extremity was not noted in service and is not the result of claimed herbicide exposure during service. 5. Peripheral neuropathy of the right lower extremity was not noted in service and is not the result of claimed herbicide exposure during service. 6. Peripheral neuropathy of the left lower extremity was not noted in service and is not the result of claimed herbicide exposure during service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). 2. Peripheral neuropathy of the right upper extremity was not incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). 3. Peripheral neuropathy of the left upper extremity was not incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). 4. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). 5. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by service; nor may it be presumed to have been incurred therein; nor may it be presumed to have been due to herbicide exposure in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts have been fulfilled by information provided to the veteran by correspondence dated in October 2008. That letter notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board also notes that 38 C.F.R. § 3.159 was recently revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the October 2008 letter. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. In this regard, the Board acknowledges that the record indicates that the Veteran is in receipt of retirement benefits from the Social Security Administration (SSA). He has never applied for or received disability benefits from SSA. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations The law provides that service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and diabetes mellitus, although not otherwise established as incurred in or aggravated by service, is manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2010) For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including diabetes mellitus and acute and subacute peripheral neuropathy may be presumed to have been incurred during qualifying service if shown the Veteran was exposed to an herbicide agent during active military, naval, or air service. For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2009). Factual Background Service personnel records (SPRs) reflect that the Veteran had service in Southeast Asia, specifically at Don Muang RTAFB, Thailand, in 1968. His military occupational specialty was air freight (cargo handler), and he has attested to the correctness of these facts. According to the Airman Performance Report for the period from December 1967 to October 1968, when the Veteran was stationed in Thailand, his described duties were, "Receives, stores, and segregates according to content, boxes, cartons and sacks. Classifies freight by type, commodity, dimensional limitations, and priority of movement. Selects consignments of freight for shipments and groups according to destinations." SPRs indicate he actually served in Thailand from January 1968 to January 1969, and had no TDY to Vietnam. Service treatment records (STRs) include the June 1966 enlistment physical examination report indicating that urinalysis was negative for sugar. STRs are silent for any reference to signs or symptoms of diabetes mellitus or peripheral neuropathy. The Veteran's July 1970 separation physical examination report noted that the urinalysis was negative for sugar, and his upper and lower extremities were evaluated as normal. In the July 1970 report of medical history, the Veteran denied sugar in his urine or any neuritis. Beginning in February 2005, the Veteran was seen at the Greenville VA outpatient clinic. He denied a history of diabetes mellitus. February 2005 laboratory studies revealed a glucose level of over 1000. In May 2005, laboratory studies revealed an elevated glucose level of 169.00. Shortly thereafter, diabetes mellitus was diagnosed. A review of the record reflects that the Veteran has not been diagnosed with peripheral neuropathy of any of his extremities. VA outpatient treatment records document ongoing treatment for diabetes mellitus as well as other disorders unrelated to this claim. In May 2010, the Veteran provided testimony at a video conference hearing. He testified that while stationed in Thailand, he was a cargo handler. He described his job duties, indicating that the cargo he moved was often covered with heavy netting/webbing to hold the shipments in place. The cargo often came from Vietnam or went to Vietnam. He recalled that often the cargo would consist of large barrels/drums and the netting surrounding the netting would be damp, wet and slick. As part of the job, he would have to handle the netting. He stated that he could not be certain that the barrels/drums contained Agent Orange or that the netting was wet from Agent Orange. He stated that he had no TDYs to Vietnam. Analysis In a Memorandum for the Record associated with the Veteran's claims folder, it was stated that: VA Compensation and Pension Service has reviewed a listing of herbicide use and test sites outside Vietnam provided to our office by the Department of Defense (DoD). This list contains 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. Testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland. The list does not contain names of individuals. Additionally, it does not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board. The application of commercial herbicides on military installations was conducted by certified applicators. DoD has advised us that commercial herbicides were routinely purchased by the Base Civil Engineer under federal guidelines and that records of these procurements were generally kept no longer than two years. We have also reviewed a series of official DoD monographs describing in detail the use, testing, and storage of herbicides at various foreign and domestic locations. In addition, the Project CHECO Southeast Asia Report: Base Defense in Thailand, produced during the Vietnam era, has been reviewed. The DoD list indicates only that limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The Report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand (emphasis added). We received a letter from the Department of the Air Force stating that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14 -17 October 1966. The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes." These facts are not sufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand. While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non- tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. If the claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, be advised that there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. If the claim is based on general herbicide use within the base, such as small-scale brush or weed clearing activity along the flight line or around living quarters, there are no records of such activity involving tactical herbicides, only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer. Since 1957, the Armed Forces Pest Control Board (now the Armed Forces Pest Management Board) has routinely provided listings of all approved herbicides and other pesticides used on U.S. Military Installations worldwide. VA M21-1MR Manual, Part IV, section ii.2, Chapter 10 , paragraph q (2009) While the Veteran contends that as a cargo handler in Thailand he was exposed to herbicides on the netting and in shipments of barrel/drums, he has admitted that he is not certain what the barrels contained. The DoD has informed VA that "Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand." By his own admission, the Veteran had no service in Vietnam. In the absence of evidence confirming service in the Republic of Vietnam, 38 C.F.R. § 3.307(a)(6)(iii) is not applicable, and service connection for diabetes mellitus cannot be awarded based on claimed exposure to herbicides. The Veteran's claim will now be addressed on a direct service connection basis in this decision. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has reviewed the Veteran's service medical records and observes that they are entirely negative for complaints of, or treatment for, diabetes mellitus during service. The earliest evidence of record of diabetes mellitus is a May 2006 VA treatment record noting the diagnosis of diabetes mellitus. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint may be considered with other factors in the analysis of a service connection claim). Significantly, none of the subsequent medical evidence of record contains an opinion or similar evidence linking diabetes mellitus back to service. The Board is aware that the Veteran has not been afforded a VA examination, with an opinion as to the etiology of his claimed disorder. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, there is no evidence linking his claimed diabetes to service and no reasonable possibility that a VA examination would result in findings favorable to him. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board emphasizes at this point that this decision does not imply that the Veteran is not sincere. Although he may sincerely believe that his diabetes mellitus was the result of his exposure to herbicides in service while a cargo handler stationed in Thailand, as a lay person, he is not competent to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The law is clear the record must show that diabetes mellitus was incurred in or aggravated by service, or shown within the one-year presumptive period following service, for the award of service connection on a direct basis. In the absence of such evidence or satisfaction of applicable presumptive provisions, service connection is not warranted. With respect to the Veteran's claim for peripheral neuropathy of his extremities, STRs are silent for symptoms or findings consistent with peripheral neuropathy. Further, post-service treatment records do not confirm a diagnosis of peripheral neuropathy of any extremity at this time. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Inasmuch as the basic criteria for the award of service connection for peripheral neuropathy of any extremity have not been met, service connection cannot be awarded. Finally, because the Veteran has been denied service connection for diabetes mellitus, there is no basis to award service connection for peripheral neuropathy secondary to diabetes mellitus. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, this appeal is denied. ORDER Entitlement to service connection for diabetes mellitus claimed as a result of herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as a result of herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as a result of herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as a result of herbicide exposure is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as a result of herbicide exposure is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs