Citation Nr: 1753674 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-21 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for diabetes mellitus, due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure, and/or as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The appellant served on active duty from December 1966 to December 1970. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The issue of entitlement to service connection for diabetes mellitus was denied in a February 2015 Board decision that also remanded the issue of entitlement to service connection for peripheral neuropathy. The Veteran appealed the decision on the former issue to the United States Court of Appeals for Veterans Claims (Court). The appellant's attorney and a representative of VA's Office of the General Counsel filed a Joint Motion for Partial Remand in August 2015. In an August 2015 order, the Court granted the motion, vacated that part of the Board's February 2015 decision that denied entitlement to service connection for diabetes mellitus, and remanded the matter for readjudication. The Board remanded that issue in December 2015 and June 2017 for further development. Both matters have returned to the Board for appellate consideration. FINDINGS OF FACT 1. The most probative evidence of record does not show that it is at least as likely as not that the Veteran's diabetes mellitus is etiologically related to service, to include as due to herbicide exposure. 2. The most probative evidence of record does not show that it is at least as likely as not that the Veteran's peripheral neuropathy is etiologically related to service, to include as due to herbicide exposure, or as secondary to a service-connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that the Veteran's representative requested an extension of time to submit additional information until October 28, 2017. No additional information was received. Legal Criteria Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a)(6)(ii). Diabetes mellitus and peripheral neuropathy are included in the list of enumerated diseases. The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board notes that effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and removing the note stating that the term "acute and subacute peripheral neuropathy" meant 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. See 78 Fed. Reg. 54,763 (Sept. 6, 2013). It was further noted that the amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it was noted it does not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after a veteran's last in-service exposure in order to qualify for the presumption of service connection. If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, then other 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 disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once other exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H ("M21-1"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1, Part IV.ii.1.H.5.a. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. A veteran may submit the dates, location and nature of the alleged exposure, which will be referred to the Joint Services Records Research Center (JSRRC) for a formal finding concerning herbicide exposure. See M21-1, Part IV.ii.1.H.5.b. Service connection for certain chronic diseases, to include diabetes mellitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required. 38 C.F.R. § 3.303 (b). Continuity of symptoms may establish service connection only for those diseases listed in 38 C.F.R. § 3.309 (a). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis The Board concedes that the Veteran has current disabilities of diabetes mellitus and peripheral neuropathy. Thus, the Veteran has satisfied the first element of service connection. The second element of service connection requires demonstration of an event, injury or disease in service. The Veteran contends that he flew from the United States to Thailand during his active military service, and had a four-hour layover in Saigon, Vietnam. The Veteran stated that he had to get off the plane during this layover. The Veteran contends that this was the only time he set foot in Vietnam, and he does not argue that he was on the inland waterways of Vietnam. The Veteran also asserts that he was exposed to herbicides during his active military service in Thailand while working on airplane and jet engines that had been to Vietnam. The Veteran further indicated that he would take smoking breaks in Thailand around the perimeters of the base, and that his duties sometimes took him to the perimeter for maintenance purposes. The Veteran's DD Form 214 indicates that the Veteran is a recipient of the Vietnam Service Medal (VSM). However, it is well-established that the VSM was awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace thereover, and for those who served in Thailand, Laos or Cambodia while serving in direct support of operations in Vietnam. See Manual of Military Decorations and Awards, 6.6 (U.S. Department of Defense Manual 1348.33-M, September 1996). Further, the Federal Circuit in Haas v. Peake, 525 F. 3d 1168 (Fed. Cir. 2008) held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a VSM. Haas, 525 F.3d at 1193-95. The Veteran's STRs and personnel records are absent for any findings relating to duty or visitation on the actual landmass of Vietnam. In support of his belief that he had a layover in Vietnam during his active military service, the Veteran submitted a lay witness statement dated in November 2010. In the statement, D.S.P. stated that he served with the Veteran at Nellis Air Force Base in North Las Vegas, Nevada, from May 1967 to December 1967. He indicated that they were both then transferred to Takhli Royal Air Force Base in Thailand from December 1967 to December 1968. D.S.P. stated that, while traveling to South East Asia, they left Travis Air Force Base in Hawaii, deplaned in the Philippines and then had a layover for about eight hours. They then left for the Philippines and then onto to Saigon, Vietnam, where they deplaned due to airline mechanical problems for several hours. D.S.P. reported that they then boarded the plane again and went onto Bangkok, Thailand. In a June 2012 Report of Contact, the Veteran indicated that the World Airways commercial plane had been contracted out and all of the passengers were U.S. military. The Veteran stated that they flew to Vietnam and had to exit the plane while it was being serviced and refueled. They then resumed their flight about four hours later and continued to Bangkok, Thailand, where they caught their flight to the Takhli Air Force Base. In June 2012, the Joint Services Records Research Center (JSRRC) found that they could not concede that the Veteran had Vietnam in-country service during his active military service. The JSRRC acknowledged that the Veteran's personnel records document that he served in Thailand at the Takhli Air Force Base from 1967 to 1968. However, the JSRRC determined that there was no evidence to show that D.S.P. served with the Veteran, was stationed in Thailand, and/or was in-country in Vietnam. The JSRRC added that the only reference to Vietnam concerning D.S.P. was a comment made in his VAMC record, where the examiner stated that D.S.P.'s medical disability was more likely due to his "many years" of cigarette smoking than due to Agent Orange. The JSRRC further noted that the Veteran's personnel file included a copy of a travel voucher showing the Veteran's return travel to the United States from Thailand. The route goes from the Takhli Air Force Base in Thailand to Bangkok, Don Muang Air Base, and then to Yokota, Japan, and then to Travis Air Force Base in California. The JSRRC determined that this return travel voucher shows that it is possible to transit from Thailand to the United States without traveling through Vietnam. The Veteran's original travel voucher for his trip to Thailand is not of record, and his personnel records do not document any stops in Vietnam. Thus, given this evidence and lacking any further proof that the Veteran traveled through Vietnam, the JSRRC was unable to concede Vietnam in-country service. For the reasons outlined above, the Board finds that the Veteran did not set foot in or on the inland waterways of Vietnam. Thus, the Veteran is not presumed to have been exposed to herbicide agents and the presumptive provisions relating to herbicides and diabetes mellitus are inapplicable here. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313(a). Regarding in-service herbicide exposure from Thailand, the Veteran's service personnel records reflect that he served in Thailand from 1967 to 1968 during the Vietnam Era at the Takhli Air Force Base. Service personnel records do not contain confirming evidence showing that the Veteran served as a military policeman or near the air base perimeter while stationed at the Takhli Air Force Base in Thailand. Additionally, the Veteran's DD-214 documents that his MOS was a Jet Aircraft Mechanic, and does not establish that the Veteran worked as a security policeman, a security patrol dog handler, or a member of a security police squadron during his service in Thailand. An August 2010 response from the JSRRC shows that they were unable to concede in-service herbicide exposure for the Veteran from his active military service in Thailand. The JSRRC noted the Veteran's MOS and service in Thailand. The JSRRC found that the Veteran's unit was located near the flight line on the Takhli Air Force Base in Thailand, almost at the physical center of the base. The JSRRC included maps and photographs of the Veteran's location on the base. However, multiple lay witness statements submitted by the Veteran indicate that planes were routinely taken by mechanics to a "trim pad" near the perimeter of the base for testing. The Board finds these witness statements credible with regard to duties and their location. The VA requested more information from the JSRCC as to whether the Veteran's duties would have taken him near the "trim pad" by the perimeter. March 2017 and July 2017 responses from the archivist at the Air Force Historical Research Agency assert that no herbicides of any kind were used at Takhli Royal Thai Air Force Base until April 1969, after the Veteran left the base. The archivist noted that the May 2010 C&P Service Bulletin was broad in nature, and specific research into Takhli Base showed that apart from no tactical herbicides such as Agent Orange being used at the base, Taklhi did not use commercial grade herbicides until April through September 1969. While lay witness statements contend that they believe herbicides such as Agent Orange were used prior to that time period, the Board affords more probative weight to the findings of the archivist. The archivist submitted supporting documentation for his findings, to include a study entitled "Herbicide Use at Thailand's Base Perimeters: Base by Base Analysis." The study notes that Takhli was a semi-permanent base under defense controil of the Thai Air Force, thus not warranting vegetation control and herbicide use. The study also notes that a training course for use of herbicides was first offered for USAF staff at all Thai bases in March 1969. Photos also supported the use of machinery, and not herbicides, for vegetation control that occurred on the perimeter. Thus, whether the Veteran was near the perimeter of the base is not a dispositive issue in the Veteran's appeal. In short, since the requisite service in Vietnam or demonstration of exposure otherwise to an herbicide agent, is not shown, the presumption of exposure to herbicides does not attach. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Furthermore, while the Veteran is deemed credible in his assertion that he sometimes operated near the perimeter of the Takhli base, the Veteran's assertion regarding any actual exposure to herbicides while stationed in Thailand during his active military service is not supported by the evidence that herbicides were first introduced to Takhli base after the Veteran's departure. As such, the Board finds the evidence is insufficient to demonstrate exposure to herbicides during the Veteran's military service. The Veteran is, therefore, not entitled to service connection on a presumptive basis for any disease identified under 38 C.F.R. § 3.309(e), including diabetes mellitus and peripheral neuropathy. Nonetheless, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual in-service exposure to Agent Orange, which led the Veteran to develop the claimed disorder after his military service. Combee, 34 F.3d at 1044. However, as aptly noted by the record, the evidence fails to establish proof of any actual or presumed exposure to herbicides during the Veteran's military service. Regarding the theory of direct service connection, the first post-service relevant complaint for diabetes mellitus was in a June 2010 VAMC treatment record, which documented that the Veteran had a history of and currently had diabetes mellitus. The Veteran's first complaint of peripheral neuropathy came at an October 2010 visit. The record does not reflect that the Veteran contends that his diabetes mellitus or peripheral neuropathy had been present since, in the years shortly following, his active military service. Again, the Veteran's active duty ended in 1970. This lengthy period without treatment for the disorder weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (holding that service incurrence may be rebutted by the absence of medical treatment of the claimed disorder for many years after the military discharge). The Veteran has only contended that his conditions were caused by exposure to herbicides. Here, the Veteran's STRs are silent for documentation of either claimed disorder or associated symptoms. The records reveal no complaints or treatment related to the Veteran's diabetes mellitus or peripheral neuropathy until 2010, where the conditions are noted on medical history. As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. There is no positive medical nexus evidence in the claims file. The Board realizes that, to date, VA has not provided the Veteran an examination or sought a medical opinion in response to his claim. In consideration of the above, the Board finds that an examination and opinion are not needed to fairly decide the claim because there is no suggestion the Veteran had diabetes mellitus or peripheral neuropathy while in the military or due to service, other than the Veteran's contentions. There also is no medical nexus evidence otherwise suggesting that this disorder is related to his military service, including by way of herbicide exposure. Thus, the Board finds that an examination and opinion are not needed to adjudicate the Veteran's claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The treatment records do not provide any supporting evidence. For all of these reasons, service connection on a direct basis is not warranted. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for diabetes mellitus, a chronic disorder. As stated above, the earliest post-service medical treatment records are dated from June 2010, and the Veteran was separated from the active duty in 1970. No diagnosis of diabetes mellitus was made within one year of the Veteran's military discharge, and there is no continuity of symptomatology found in the evidence of record. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a), 3.309(a). In reaching this decision, the Board has considered the lay statements and testimony from the Veteran, and lay witnesses, in addition to the internet articles and photographs submitted in support of the Veteran's claim. The Board acknowledges that the Veteran and his family and friends are competent, even as lay people, to attest to factual matters of which they have first-hand knowledge, e.g., symptoms witnessed or observed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, they are not considered competent to attribute the Veteran's disabilities to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board finds that the most probative evidence of record does not establish that it is at least as likely as not that the Veteran's current diabetes mellitus and peripheral neuropathy are etiologically related to service. The Board finds that the preponderance of evidence is against the Veteran's claim, and the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for diabetes mellitus and peripheral neuropathy, to include as due to in-service herbicide exposure, is denied. ORDER Entitlement to service connection for diabetes mellitus, to include as due to in-service herbicide exposure, is denied. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure, and/or as secondary to diabetes mellitus, type II, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs