Citation Nr: 1731113 Decision Date: 08/03/17 Archive Date: 08/11/17 DOCKET NO. 12-04 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides. 2. Entitlement to service connection for a heart condition, to include as due to exposure to herbicides. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 4. Entitlement to service connection for cancer of the kidneys, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The RO denied the Veteran's claims for service-connected compensation for diabetes mellitus, type II, a heart condition, hypertension, and cancer of the kidneys, all claimed as due to herbicide exposure. The Veteran initiated a timely appeal of all four rulings. In April 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Each of the pending claims had previously been denied in a June 2006 RO decision. In a decision and remand, issued in November 2014, the Board decided that new and material evidence had been received and granted the Veteran's request to reopen the four service connection claims. To that extent only, the claims were granted. Whether the Veteran was eligible for the claimed benefits was remanded for further development. In July 2017, the Veteran's attorney submitted evidence and information which had not previously been considered by the RO. In a letter explaining that information, the attorney waived the Veteran's right to have the RO review this evidence prior to the Board's ruling. Based on this waiver, the Board can decide these issues now without first remanding this appeal to the RO. FINDINGS OF FACT 1. Diabetes mellitus, type II, was not incurred in service or until many years after discharge from service, and was not caused or aggravated by a disease or injury in active service, including herbicide exposure. 2. A heart condition was not incurred in service or until many years after discharge from service, and was not caused or aggravated by a disease or injury in active service, including herbicide exposure. 3. Hypertension was not incurred in service or until many years after discharge from service, and was not caused or aggravated by a disease or injury in active service, including herbicide exposure. 4. Cancer of the kidneys was not incurred in service or until many years after discharge from service, and was not caused or aggravated by a disease or injury in active service, including herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.303(a), 3.307, 3.309 (2016). 2. The criteria for entitlement to service connection for a heart condition, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.303(a), 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.303(a), 3.307, 3.309. 4. The criteria for entitlement to service connection for cancer of the kidneys, to include as due to herbicide exposure have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107(b); 38 C.F.R. §§ 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans' Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Duty to Notify The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection. These are: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of disability. Id. at 486. The claimant in this case has substantiated his status as a veteran. In a letter dated April 2011, the RO notified him that the four pending claims had previously been denied and that they would be reopened and reconsidered if the RO received new and material evidence. After examining the Veteran's application, and noting his statements indicating that his claimed disabilities were the result of exposure to herbicides in service, the RO sent him a second letter in May 2011, which asked him to send evidence and information concerning the circumstances of his claimed exposure to herbicides. Unfortunately, neither letter presented the requirements listed in Dingess/Hartman in a single, easy-to-read, list and neither letter specifically identified them as the basic requirements of a claim for service-connected disability compensation. In general, the notice required by the VCAA should be provided to the claimant before the initial unfavorable decision on the claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). Nevertheless, any defect in the content of the notice to the appellant was harmless and has not prejudiced the Veteran. Before the denial of his initial applications for the claimed disabilities, the Veteran received a VCAA-compliant notice in August 2005, describing all the required elements. The April 2011 letter identified the specific reasons the earlier claims had been denied, including the failure to submit evidence showing that the claimed disabilities were diagnosed or treated in service. The letter further explained that the prior claims were unsuccessful, in part because there was no evidence that hypertension, which is listed as a chronic disease under 38 C.F.R. § 3.309(a), developed within one year of the Veteran's separation from service. According to the April 2011 letter, the Veteran's claims had been denied because the evidence failed to demonstrate that the Veteran served in Vietnam or was exposed to herbicides through some other military experience. These explanations effectively communicated to the Veteran the essential idea that the success of his service connection claims depended on proof that a current disability had its onset in service or was otherwise related to service, either because it resulted from some disease or injury in service or due to the application of a statutory or regulatory presumption. In deciding that the Veteran was not prejudiced by the deficiency in the pre-adjudication VCAA notice letters, it is also significant that the statement of the case (SOC), dated January 2012, included copies of several regulations, including 38 C.F.R. § 3.303, indicating that a successful service connection claim depends on the need to prove that a particular injury or disease resulting in disability was incurred in or aggravated by service. The SOC also informed the Veteran about the relevant provisions of 38 C.F.R. §§ 3.307 and 3.309 concerning the list of diseases for which presumptive service connection is available for Veterans exposed to herbicide agents. Taken together, these notices satisfied VA's duty to notify, especially in light of the Veteran's participation in the April 2013 Travel Board hearing and the remand of this appeal for further development in November 2014. Both events took place after the Veteran received the April and May 2011 notice letters and the January 2012 SOC. As a result of the remand, the Veteran was given an opportunity to submit further evidence, and he took advantage of this opportunity, submitting, through his attorney, a detailed brief and a considerable collection of documents concerning the use of herbicides in Thailand. As a result of these proceedings, the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, and there was an adjudication of the claim, by the RO, in a supplemental statement of the case (SSOC), dated May 2016, which was issued after the January 2012 SOC provided him with a substantially complete notice. Under these circumstances, remanding for additional notice would serve no useful purpose. Duty to Assist VA has similarly fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, service personnel records, post-service medical records, and lay statements have been associated with the claims file. During the April 2013 Travel Board hearing, the Veteran indicated that he did not believe that VA had received all of the records of his post-service treatment from medical providers in private practice. Accordingly, the Board remanded the case with instructions to the RO to contact the Veteran and ask him to identify all private physicians who treated him for his claimed disabilities and to authorize any identified private physicians to release those records. The RO mailed the letter to the Veteran in December 2014, attaching appropriate forms for the release of confidential medical information. But the Veteran did not respond to the letter. Without the Veteran's cooperation, the duty to assist does not require more than this with respect to post-service medical records. See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) ("[the] duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). In many cases, the duty to assist requires VA to arrange a medical examination or to obtain an expert medical opinion concerning the probability of a relationship between military service and the claimant's current disabilities. 38 C.F.R. § 3.159(c)(4) (2016). In this case, VA did not obtain a medical opinion on the probability of a relationship between service and any of the claimed disabilities. But under the circumstances of this case, no examinations or opinions were needed because the evidence does not satisfy the test described in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board will explain why the evidence fails to satisfy the McLendon test in the analysis section of this decision. The duty to assist also requires that the Board enforce compliance with its prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its November 2014 remand, the Board instructed the RO to make reasonable efforts to obtain outstanding private medical records. As the Board has explained already, the RO satisfied this requirement by mailing its December 2014 letter to the Veteran. The remand also required the RO to make additional efforts to obtain evidence to verify the Veteran's claimed exposure to herbicides in Vietnam. His military personnel records, which are part of the current claims file, indicate service in Thailand and in the United States. But they do not mention service in Vietnam. Because the Veteran claimed that, during service with his unit in Thailand, he periodically flew to Vietnam, the Board asked the RO to make an appropriate request to the U.S. Army and Joint Services Records Research Center (JSRRC) to research relevant unit records concerning Company A of the Army's 7th Radio Research Field Station (RRFS). The purpose of the requested development was to determine whether, even if no individual records could be found indicating that the Veteran personally travelled to Vietnam, the unit records might include more general information about whether soldiers assigned to the 7th RRFA would have travelled to Vietnam at the relevant time. The RO made an appropriate request to JSRRC for unit records. In response, the JSRRC indicated that they had no access to unit records for Radio Relay units, like the 7th RRFS. The JSRRC advised the RO that the appropriate records repository was the office of the Commander of the Army's Intelligence and Security Command (INSCOM). The RO appropriately followed up on the request by writing two letters to INSCOM, asking for information as to whether members of the Veteran's unit visited Vietnam between August 1972 and August 1973. After sending the second request, the RO received the following response from INSCOM: "We have reviewed such materials as we maintain here relevant to this inquiry, including the annual historical reports of the 7th Radio Research Field Station. We have been unable to find specific reference to soldiers traveling to Vietnam from the 7th RRFS. It should be noted that the nature of the materials in our custody is to exclude a great deal of operational detail. The omission of a specific details [sic] should not necessarily be construed as contradicting [the Veteran's] claims." Neither the response from INSCOM nor any other information available to the RO indicates that documentary evidence verifying the Veteran's exposure to herbicides or verifying his claimed visits to Vietnam might be available from some other source. For these reasons, the Board finds that the RO complied with its November 2014 remand instructions. II. Service Connection Claims Relevant Legal Provisions Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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 - or "nexus" - between the present disability and the disease or injury incurred or aggravated during service. See Holton, 557 F.3d at 1366 (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Depending on the facts of the individual case, service connection may be proven directly "by affirmatively showing inception or aggravation during service or through the application of statutory presumptions . . ." 38 C.F.R. § 3.303(a), or on a "secondary" basis if the claimed disability is proximately due to, the result of, or aggravated by, a disease or injury which is service-connected. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995). For certain chronic diseases, including the claimed disabilities of hypertension and diabetes mellitus, see 38 C.F.R. § 3.309 (a), the law presumes that the disease was incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of separation from service. 38 C.F.R. § 3.307(a)(3). Diabetes mellitus, type II, is associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). The law presumes that any Veteran who served in Vietnam between January 9, 1962 and May 7, 1975 was exposed to these herbicides. 38 U.S.C.A. § 1116(f). For the purposes of this presumption, "service in the Republic of Vietnam" includes "duty or visitation in the Republic of Vietnam," 38 C.F.R. § 3.307(a)(6)(iii), which means that a claimant has "been present within the land borders of Vietnam at some point in the course of his duty," Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008); see also Gray v. McDonald, 27 Vet.App. 313, 320 (2015) (Haas held that "§ 3.307(a)(6)(iii) reasonably interpreted the statute to 'require some presence in Vietnam, even if the veteran's service largely occurred elsewhere.'") (quoting Haas, 525 F.3d at 1186). Hypertension is not currently considered a presumptive disease. However, VA has acknowledged in the Federal Register that there is "limited or suggestive evidence" of an association between hypertension and herbicide exposure. See 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014). VA also presumes that U.S. Air Force veterans who served at certain Royal Thai Air Force Bases during the Vietnam Era were exposed to herbicides if they worked as security police officers, security patrol dog handlers, members of the security police squadron, or were otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. IV, subpt. ii, ch. 1, § H.5.b. While none of the statutory and regulatory presumptions of service-connection applies to the Veteran's kidney cancer or heart arrhythmia, he is not precluded from establishing service connection directly. See 38 U.S.C.A. § 1113(b) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection."). The Veteran's Contentions The electronic claims file include medical records indicating that the Veteran has been diagnosed with diabetes mellitus, type II, hypertension, kidney cancer, and heart arrhythmia. This evidence satisfies the current disability requirement with respect to each of his service connection claims. See Holton, 557 F.3d at 1366. In his statements and hearing testimony, the Veteran has attributed all four of the relevant disabilities to exposure to herbicides during his active duty service. He claims to have been exposed to herbicides both in Vietnam and in Thailand. To help decide this case, the AOJ obtained copies of service personnel records, which indicate that he was stationed in Thailand with Company A of the 7th RRFS from August 1972 to August 1973. The Veteran's service personnel records do not indicate service in Vietnam. In statements dated May 2006, September 2011 and December 2011, the Veteran wrote that, during his deployment to Southeast Asia, he traveled from Thailand to Vietnam more than once. The Veteran has also claimed he was exposed to Agent Orange in Thailand. In his substantive appeal (VA Form 9), the Veteran explained that, during his service in Thailand, he was usually stationed at the Radio Research Field Station in Ramasun. According to the statement, Ramasun station was approximately 12 miles south of the Royal Thai Air Force Base at Udorn. Udorn is one of the Thai Air Force Bases where, according to M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b., herbicides were used near the base perimeter. In his Form 9, the Veteran said that, at Ramasun station, he was part of a "Quick Response Team" which he says was a group of volunteers who provided additional base security and were deployed to the perimeter of the base. The Veteran wrote that herbicides were used to clear foliage around the fenced-in perimeter of the base. At the Travel Board hearing, the Veteran testified that his military occupation specialty was French Interpreter. According to the Veteran, his duties at Ramasun station were to monitor radio transmissions from Cambodia. When asked to identify which Thai Air Force Base was closest to Ramasun, the transcript indicates that the Veteran identified " Eudapal [sic] Thailand, Air Force Base." Given the difficulty associated with accurately transcribing the spelling of foreign or unfamiliar place names, and because the M21-1 Manual does not mention an Air Force Base called "Eudapal", the Board finds that the Veteran was likely referring to the Royal Thai Air Force Base at U-Tapao, which is one of the bases listed in M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b. The hearing transcript indicates that the Veteran's then-representative informed the undersigned that "Eudapal [sic] is known to have used Agent Orange specifically for herbicides to - on that perimeter to keep the vegetation down as a security measure." This statement supports the Board's conclusion that, in his hearing testimony, the Veteran was referring to the Air Force Base at U-Tapao. At the hearing, the Veteran testified that he made multiple monthly visits to U-Tapao. He said that every time he visited the base he landed on the tarmac or landing strip. When exiting the tarmac he passed through the perimeter fence. The hearing transcript repeats some of the information about the Veteran's participation in the "Quick Response Team" described in his earlier written statements. At the hearing, the Veteran said that his duties as part of the Quick Response Team involved security duties and responding to real or perceived threats on the perimeter of the base. The Veteran testified that, as part of his duties for the Quick Response Team, he was called to the base perimeter "three to seven times a month." The hearing transcript includes the following exchange on the issue of whether the Veteran performed base security duties at one or more bases in Thailand: Q: The Quick Response Team was that only on Ramasun or did you do that at Eudapal [sic] as well? A: Just at Ramasun station. The Veteran was asked whether he recalled seeing anyone applying herbicides at any of the bases where he was stationed, and he answered, "No." The Veteran did, however, explain that he believed the vegetation had been killed by "some type of herbicide and it was a good herbicide" because the vegetation appeared to be brown and black but did not look as if it had been cut. When asked where he was going when he would visit the Air Base, the Veteran said that his superior officer "was a pilot . . . and he would take me with him because he needed somebody else and we would go to different places in Thailand like Chiang Mai. We would fly south into Bangkok, things like that." The Veteran testified that he would drive, rather than fly, between Ramasun and U-Tapao because the two locations were only about 10 kilometers apart. The Veteran testified that he first became aware he had diabetes at about the same time he was diagnosed with his heart condition and with kidney cancer. He said he was first diagnosed with hypertension in approximately 1990. The Veteran said he was not aware of any high blood pressure readings during his active duty service. Together with other evidence and argument, the Veteran, through his attorney, submitted an affidavit, dated March 2017, with additional information concerning his service in Thailand. Like his hearing testimony, the affidavit indicates that, when he was in Thailand, the Veteran was usually at Ramasun station. Unlike his hearing testimony, the affidavit indicates that he made weekly trips from Ramasun to the Udorn Royal Thai Air Force Base, which he wrote was "approximately 12 miles . . . from Ramasun Station." According to the affidavit, "One of my superior officers and I made the regular trip to Udorn together. At Udorn, we sometimes would take connecting flights to other locations, as needed." The affidavit indicates that, when he would pass through the base perimeter at Udorn, "there was absolutely no vegetation along the perimeter, or really anywhere on the Udorn base, there was simply dirt." In his affidavit, the Veteran wrote that he had "a small hut that I lived in that was very close to the flight line." The language of paragraph five of the March 2017 affidavit appears to indicate that the Veteran participated in base security duties at Udorn: "During my down time, myself and many other men would walk alongside the perimeter fence at Udorn to pass the time. We also did our regular physical training ('P.T.') along the perimeter fences so that we had space to maneuver. If I ever wanted to go into town or any other nearby areas, we always had to ride along the perimeter and would pass through the main gate regularly, through the environment surrounding the base. I also volunteered to help the Thai soldiers that were in charge of the base with participating in guard duty, as we formed what was known as a 'Quick-Strike-Force' in the event we suffered a sudden enemy attack." With respect to his post-service medical conditions, the Veteran's affidavit indicates that he was diagnosed with kidney cancer in approximately 2002. "I was also diagnosed with diabetes mellitus, type II, as well as a heart arrhythmia. My family has never had a history of medical issues, especially anything involving cardiovascular diseases or diabetic issues. As time has progressed, I firmly believe that I was exposed to herbicides during my time at Udorn Royal Thai Air Force Base." Other Evidence and Argument from the Veteran's Attorney Along with the affidavit, the Veteran's attorney submitted several pieces of evidence in July 2017. These included a map and a flight simulator "screen shot" which purport to depict the Udorn Air Force Base as it appeared between 1966 and 1969 and excerpts from a February 1973 document from the Department of the Air Force called Project CHECO Southeast Asia Report: Base Defense in Thailand. According to page 58 of this document, "herbicides were employed to assist in the difficult task of vegetation control. Use of these agents was limited by [rules of engagement] and supply problems." Page 66 describes the extent of herbicide use as the Nakhon Phanom Royal Thai Air Force Base. According to page 67, the U.S. Embassy's rules of engagement approved soil sterilization and herbicide use in 1969, but notes that herbicides "could only be used on areas within the perimeter and under no circumstances could the vegetation control agents be used to clear areas of observation to fire off-base." According to page 73, at the Royal Thai Air Force Base at Ubon, rules of engagement prohibited herbicide use outside the perimeter. With respect to Udorn Air Force Base, the information from Project CHECO submitted by the Veteran's attorney indicates that the base perimeter was very close to the aircraft at certain points and that, because the base was closely adjacent to Udorn City, it could be difficult to detect potential threats. The Veteran's attorney also submitted a series of documents from an "Air Force Historical Research Agency" indicating that aircraft carrying Agent Orange from the 12th Special Operations Squadron operated out of Udorn Air Force Base between in December 1968 and January 1969, before spraying herbicides in Laos. Other documents from this publication indicate that "28,000 gallons of defoliant" was shipped from Vietnam to Udorn. The Veteran's attorney submitted an appendix to an Air Force publication on Operation Ranch Hand about the use of herbicides in Southeast Asia. The material submitted includes one table identifying the military color codes and corresponding chemical compositions of various herbicide agents, three tables of statistics concerning the use of herbicides in South Vietnam and one table concerning herbicide operations in Laos. None of the tables indicate the type or amount of herbicides used in Thailand. The tables also do not provide information about herbicide operations after February 1971. The Veteran's attorney submitted an Army Field Manual concerning the tactical use of herbicides. This manual describes the chemical properties of Agents Orange, Blue and White. It describes aerial and ground delivery systems for the spraying of herbicides and contains guidelines concerning storage, handling and disposal of herbicides. The Veteran's attorney provided an Army Supply Bulletin, dated September 1968. This document identifies 25 kinds of herbicides. According to the Veteran's attorney, this document is significant for at least two reasons. First, the attorney argues that the document shows that whether a particular herbicide agent is designated one of the "rainbow herbicides" - e.g., Agent Orange, Agent White - can depend on the size of the container in which the chemical was stored. In other words, herbicides with the same chemical properties might be used under other labels. Second, the attorney suggests that, based on an analysis of the chemicals listed in the supply bulletin to identify the various herbicides, "at least half of the available herbicides that units and bases could have obtained commercially through this supply chain, were actually herbicides that qualify for the presumption under 38 C.F.R. § 3.307." (emphasis added). This analysis, the argument continues, undermines the concept of a meaningful distinction between "commercial" and "tactical" herbicides and discredits an earlier document issued by the Veterans Benefit Administration (VBA) labelled "Memorandum of Record" which had suggested that herbicides subject to the presumption were not used in Thailand. Another item of evidence submitted by the Veteran's attorney is a February 2014 memorandum from the Armed Forces Pest Management Board (AFPMB). The memorandum indicates that, because the AFPMB does not maintain records of use or exposure to herbicides and insecticides, it cannot determine whether an individual Veteran who was stationed at a Thai Air Force Base "was specifically exposed to pesticides, insecticides, and non-tactical herbicides . . . ." Nevertheless, the memorandum refers to the September 1968 Army Supply Bulletin and its list of twenty-five commercial herbicides which were then "available in the Federal Supply System for military usage during the time period in question." The Veteran's attorney also submitted a June 2005 letter from the Programs and Legislation Division of the Air Force to a member of the House of Representatives Committee on Veterans' Affairs which attempts to answer several of the Congressman's questions concerning herbicide use. In response to the Congressman's request for information concerning the spraying of vegetation with herbicides at several Thai Air Force Bases, including Udorn, the letter states: "Because commanders were at liberty to use herbicides for defoliation around their activities using either handheld or vehicle mounted units, with no accountability required, we do not have any more specific information." The attorney submitted electronic mail correspondence between the attorney's office and employees of the AFPMB. The response indicates that the AFPMB does not have records showing which units ordered herbicides and in what quantities during the Vietnam War. The message indicates that consultation with relevant personnel at the Defense Logistics Agency and service-specific pest management consultants, suggested that herbicide purchase records are normally retained for two years only. Finally, the Veteran's attorney submitted an undated letter from herbicide expert Alvin L. Young concerning the use of herbicides in Southeast Asia. The Veteran's attorney indicates that the letter is contemporaneous with the Vietnam War. According to the letter, "two herbicides - known as 2,4-D and 2,4,5-T - are used extensively in most countries of both the free world and the communist bloc for selective control of undesirable vegetation. These chemicals are better for vegetation control than other compounds of a similar nature because they are not harmful to people, animals, soil or water." 2,4-D and 2,4,5-T are two of the chemicals identified in the definition of "herbicide agent" in the current version of 38 C.F.R. § 3.307(a)(6). The Veteran's attorney emphasizes the following part of the letter: "The two chemicals, 2,4-D and 2,4,5-T, are now in regular use, particularly for weed control in rice paddies, other field and horticultural crops, and rangeland, in Asian countries such as Burma, Thailand, Philippines, Republic of China, Japan, India, Indonesia, Australia and New Zealand." Analysis: Diabetes Mellitus, Type II, and Hypertension The evidence does not indicate, and the Veteran does not assert, that he has a heart condition listed under 38 C.F.R. § 3.309(e), to include ischemic heart disease. Heart arrhythmia is not a listed condition under 38 C.F.R. § 3.309(e). Thus, he is not eligible for presumptive service connection for his heart arrhythmia due to herbicide exposure. Likewise, kidney cancer is not a disease presumptively associated with herbicide exposure under the regulation. Accordingly, the Board will address the Veteran's claims for compensation for these conditions only after completing its analysis of the herbicide exposure issues. Although diabetes mellitus, type II, is the only one of the claimed disabilities presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e), the Board will address that issue together with the hypertension claim in light of information from the Institute of Medicine, which has placed hypertension in the category of "limited or suggestive" evidence of an association to herbicide exposure. See 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014). The phrase used to describe the probability of a causal relationship between herbicide exposure and hypertension ("limited or suggestive evidence of an association") is similar to the language used to determine whether a medical examination or opinion is required to decide a service connection claim - that a current disability "may be associated with the claimant's . . . service". 38 U.S.C.A. § 5103A(d)(2)(B) (West 2014); see also McLendon, 20 Vet. App. at 83. Thus, even though hypertension is not on the list of diseases presumptively connected to herbicide exposure, see 38 C.F.R. § 3.309(e), if the Board were to accept the Veteran's claimed exposure to herbicides, or find that such exposure could be presumed, then VA's duty to assist would require a medical examination or opinion on the probability of a relationship between hypertension and herbicide exposure. Having reviewed the evidence, the Board finds that such an examination is unnecessary because it is less likely than not that the Veteran was exposed to herbicides in service and herbicide exposure cannot be presumed based on the facts of this case. Consistent with this finding, it follows that, without any evidence of direct service connection, the claims for service connection for diabetes mellitus, type II, and hypertension must be denied. The Board makes this finding in part because it rejects the Veteran's statements that he visited Vietnam from Thailand during his deployment to Southeast Asia in 1972 and 1973. The Veteran's Certificate of Discharge from Active Duty (Form DD214) and his personnel records only indicate service in Thailand. The RO was unable to verify service in Vietnam through requests to JSRRC and INSCOM, which keeps unit records concerning Radio Research Field Stations. As the letter from INSCOM to the RO indicates, it is not particularly significant that INSCOM would not keep records concerning unit members' travel between Vietnam and Thailand because "the nature of the materials in our custody is to exclude a great deal of operational detail." "When assessing the credibility of lay evidence, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record." Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). The Board finds that inconsistent statements concerning facts relevant to the application of the herbicide presumptions have undermined the Veteran's credibility. It is clear from his written statements and hearing testimony that, during his deployment to Southeast Asia, the Veteran was usually at Ramasun station in Thailand. He has stated that he also had regular duties at a Thai Air Force Base close to Ramasun. In his written statements, in his Form 9, and in his March 2017 affidavit, he identified the base as Udorn. But in his hearing testimony, he said it was U-Tapao. When he was asked whether he performed base security duties at Ramasun or at U-Tapao, the Veteran replied that he performed these duties only at Ramasun Station. But paragraph five of his March 2017 affidavit appears calculated to give the impression that he performed these duties at Udorn, one of the bases, according to Manual provision M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b., where herbicides were used at the base perimeter. The first sentence of paragraph five refers to the Veteran's practice of "walking alongside the perimeter fence at Udorn to pass the time." (emphasis added). The Veteran then proceeds to indicate that he "volunteered to help Thai soldiers that were in charge of the base with participating in guard duty . . ." (emphasis added). The sentence clearly intends to convey the impression that "the base" where he performed guard duties was Udorn, which is inconsistent with his hearing testimony, in which he stated that he performed these duties at Ramasun station only. It is significant that the Veteran's statements claiming that he travelled from Thailand to Vietnam are vague. In September 2011, the Veteran wrote, "I did travel to and from Vietnam many times during my service." After the RO sent him a letter in May 2011, asking him to provide information about how his military duties exposed him to herbicides, the Veteran provided no information about the circumstances of his alleged trips to Vietnam. He did not indicate the purpose of his travel or how long he stayed in Vietnam or what the locations in Vietnam that he traveled to. Nor did explain why his duties as a French translator monitoring Cambodian radio transmissions from a listening station in Thailand would require his presence in Vietnam. The vagueness of the Veteran's written statements is notable in light of his testimony when the subject of travel outside of Ramasun station came up at the Travel Board hearing. When the Veteran was asked where was going when he would travel to a Thai Air Base from Ramasun, he said that his "officer in charge was a pilot . . . and he would take me with him because he needed somebody else and we would go to different places in Thailand like Chiang Mai. We would fly south into Bangkok, things like that." He did not testify at the time to travel within the Republic of Vietnam. Under the circumstances of this case, the omission of Vietnam from his answer is significant. For these reasons, the Board finds that the Veteran did not visit Vietnam during his military service. Even if the Veteran never set foot in Vietnam, he could still be eligible for service connection for diabetes mellitus if he was exposed to herbicides in Thailand. Discussing Manual M21-1, pt. IV, subpt. ii, ch. 1, § H.5., the Veteran's attorney acknowledges that these provisions may establish herbicide exposure for persons who performed duties such as security policeman and security patrol dog handler near the perimeter of certain Thai Air Force bases. Although the Veteran did not have one of the listed military occupation specialties, his attorney suggests that exposure to herbicides must also be conceded because the Veteran was "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence[.]" Id. The Board finds that the Veteran's duties did not place him "near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence" as that phrase is used in M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b. The fact that, during most of his deployment to Thailand, the Veteran was stationed at Ramasun station, and not at any of the Royal Thai Air Force Bases mentioned in the Manual supports this conclusion. The Board accepts the Veteran's testimony that volunteered as part of "Quick Response Team" which did involve duty near a base perimeter. Accepting the Veteran's hearing testimony on this issue as credible, the Board finds that the Veteran only engaged in duties of this kind at Ramasun station, and not Udorn Air Force Base, as he unconvincingly suggested in his March 2017 affidavit. The Board likewise accepts the Veteran's statement that vegetation had been destroyed around the perimeters of bases where he served. But it is unclear whether, at Ramusan station, this was the result of a "herbicide agent" having the chemical properties defined in 38 C.F.R. § 3.307(a)(6). "Step 2" of part b of the relevant manual provision, suggests that herbicide exposure should be conceded for persons who served at U.S. Army Bases in Thailand if the claimant was a member of a military police (MP) unit or had a military police occupation specialty. The military occupation specialties listed on the Veteran's DD-214 Form are translator and athlete/coach, not military police. Since the Veteran does not meet the criteria for conceding herbicide exposure under steps 1 or 2 of subsection (b) of the relevant manual provision, the manual indicates that the next step is to collect information from the Veteran about the approximate dates, location and nature of the alleged exposure to herbicides for the purpose of preparing a JSRRC request for verifying the alleged exposure. In this case the RO appropriately followed these instructions by making a JSRRC request, which failed to verify the Veteran's claimed exposure to herbicides. The Board accepts the Veteran's statement that he passed through the base perimeter of at least one Thai Air Force Base where herbicides were used - possibly U-Tapao, but more likely Udorn. In Frederico v. Shulkin, No. 16-0507, 2017 U.S. App. Vet. Claims LEXIS 744 (May 23, 2017), the United States Court of Appeals for Veterans Claims affirmed a Board decision which denied service connection for ischemic heart disease based on the appellant's claimed exposure to herbicides at one of the Royal Thai Air Force Bases listed in the M-21 Manual. Id. at*21. Unlike the Veteran, the appellant actually was regularly assigned to a Royal Thai Air Force Base listed in the M-21 Manual for more than a year. Id. at *1. The Court explained that, although ischemic heart disease, like the Veteran's diabetes, is on the list of diseases presumptively associated with herbicide exposure, the appellant was "not, however entitled to the presumption of herbicide exposure afforded to particular veterans by regulation." Id. at *16. The Court characterized the relevant Manual language as providing "that veterans who served in certain locations in Thailand, including Hakon Phanom [Royal Thai Air Force Base], and who served in certain capacities - namely as a security policeman, security patrol dog handler, or member of the security police squadron - or who were 'otherwise near the air base perimeter as shown by evidence of work duties, performance evaluation reports, or other credible evidence,' will be presumed to have been exposed to herbicides." Id. at *16-17 (quoting M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b.) Like the Veteran in this case, the appellant in Frederico argued that herbicide exposure should be conceded because, as part of the appellant's duties, he crossed the base perimeter while traveling into and out of the base. "As for the Veteran's contention that crossing the perimeter or traveling on the road near the perimeter would constitute herbicide exposure, the Board notes that everyone within the base would have done the same at one time or the other in order to enter or leave the camp, and so this clearly cannot be the intent of the provisions regarding nearness to the perimeter found in the provisions of M21-1, pt. IV, subpt. ii, ch. 1, § H.5.b." Id. at *18-19 (quoting Board decision). On further appeal, the Court approved the Board's interpretation of the Manual provisions: "Similarly, the Board's conclusion that Mr. Frederico regularly traveled the perimeter road is not sufficient to establish exposure to herbicides is adequately supported. The Board explained that such a finding would, in essence, negate the requirements of the Manual provisions, because 'everyone within the base' would have traveled that road.'" Id. at *20. According to the Veteran's attorney, to deny his claim would fail to give meaning to the terms "otherwise near the base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence . . ." in the Manual provisions concerning herbicide exposure in Thailand. In his brief, the attorney suggests that VA's "customary practice of limiting application of this policy to only dog handlers and security patrols even eliminates from receiving benefits under this section service members who actually sprayed the herbicides." The Veteran, however, did not spray herbicides at any Thai Air Force Base. Indeed, according to his hearing testimony, he never recalled seeing anyone applying herbicides at any base where he was stationed. In the Board's view, the example suggested in the brief - i.e., a veteran whose military occupation specialty was not dog handler or security policeman, but whose duties in Thailand involved spraying herbicide agents on the perimeter of the base - demonstrates that VA's policy on herbicide exposure in Thailand is not, as the Veteran suggests, limited to security police and dog handlers. A claimant who presented credible evidence that spraying herbicides near the perimeter of a Thai Air Force Base would be a strong candidate for a finding of herbicide exposure in Thailand based on "other credible evidence." The Veteran's attorney further argues that denying the Veteran's claim would be inconsistent with the Board's duty to adopt a broad and liberal interpretation of the applicable Manual provisions. See 38 C.F.R. § 3.103 (2016). To deny the Veteran's claim, the argument continues, would conflict with VA's policy of conceding herbicide exposure in the case of sailors whose ships docked at a port in Vietnam "even if momentarily and even if done only once." The Board disagrees with this argument because it ignores the role of Congress in creating a presumption of exposure to herbicides, which clearly applies to those who served on the land mass of the Republic of Vietnam, and clearly does not apply to all Veterans who served in Thailand. In Haas, 525 F.3d 1168, the United States Court of Appeals for the Federal Circuit explained that the perception of unfairness, of which the Veteran complains, is an inevitable consequence of legislative line-drawing: "The asserted arbitrariness of the line-drawing done by the agency in this case is in part the result of Congress's decision to extend the presumption of service connection to all persons who served for any period and in any area within the Republic of Vietnam. Because that blanket rule provides a presumption of service connection to some persons who were unlikely to be exposed, it makes virtually any line-drawing effort appear unreasonable as applied to those who were outside of Vietnam but near enough to have had some chance of exposure." Id. at 193. The Court's opinion in Haas also explains why the Board cannot accept the Veteran's suggestion that exposure to herbicides should be conceded because of his receipt of the Vietnam Service Medal. "Indeed, to treat receipt of the Vietnam Service Medal as a "test" of eligibility for the statutory presumption would be clearly contrary to the Agent Orange Act, because it is undisputed that some servicemembers who received the Vietnam Service Medal were never either in Vietnam or in its territorial waters; accordingly, those servicemembers could not properly be regarded as having served 'in the Republic of Vietnam' under any definition of that phrase." Id. at 196. Much of the Veteran's attorney's brief is devoted to criticism of the now-discredited VBA "Memorandum for the Record" which stated that "Tactical Herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand." This document was rescinded by the VBA in May 2013. A subsequent May 2010 Compensation and Pension Bulletin, which the Veteran's attorney also submitted in support of his claim, acknowledged the errors in this statement, noting that "there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides." The May 2010 Bulletin was itself later rescinded and replaced with the current provisions of the Adjudication Manual M21-1, pt. IV, subpt. ii, ch. 1, § H.5. In denying the Veteran's claims, the Board places no reliance on the rescinded VBA memorandum and the findings in that memorandum are not necessary to today's decision. The Veteran's analysis of the September 1968 Army Supply Bulletin, the June 2005 letter indicating that base commanders had substantial discretion to order the use of herbicides, and the letter from Alvin L. Young indicating widespread use of herbicides in Thailand, essentially amounts to an invitation to the Board to rewrite the presumption of herbicide exposure in 38 C.F.R. § 3.307(a)(6) by extending that presumption to all veterans who visited an Air Force Base in Thailand. To do so is, of course, beyond the scope of the Board's authority. Moreover, although the analysis of the Veteran's attorney might lead a reasonable person to suspect that the use of herbicides in Thailand was more widespread than previously supposed, the information submitted does not indicate what kind of herbicides, if any, were used at Ramasun station, where the Veteran was deployed, between August 1972 and August 1973. Without the benefit of the presumption of herbicide exposure contained in 38 C.F.R. § 3.307(a)(6), the evidence must show that he was personally exposed to an "herbicide agent" as that term is defined in the regulation. None of the information submitted by the Veteran's attorney is sufficient to show actual exposure to an herbicide agent during his active service. Direct Service Connection: All Claims As the Board noted previously, even if service connection is not available through the presumptions concerning herbicide exposure, the Veteran is not precluded from establishing service connection directly. See 38 U.S.C.A. § 1113(b); Polovick, 23 Vet. App. at 52-53. This applies to all of the Veteran's claimed disabilities. The RO denied all four of the Veteran's claims without arranging for the Veteran to be examined by medical professionals. VA has an obligation to do so when the record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of a disorder, and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. See McLendon, 20 Vet. App. at 83. While the threshold for requiring a medical opinion is low, no examinations are necessary in this case because there is no competent evidence the Veteran's hypertension, heart arrhythmia, diabetes mellitus, type II, or kidney cancer were incurred in service or are otherwise related to any disease, injury or event in service. There is nothing in the service treatment records to suggest that the Veteran had any of his present disabilities when he was on active duty. Medical examinations reports dated March 1971, November 1973, and May 1974, indicate that his physical condition was entirely normal. In a report of medical history, dated May 1974, the Veteran denied having experienced heart trouble, high or low blood pressure. The Veteran is competent to report symptoms which would be observable to an ordinary person ,but he has made no statements indicating that any symptoms associated with hypertension, diabetes, heart arrhythmia or kidney cancer were present in service or manifested within the first year after he was discharged from active duty. In his initial application for service connection, dated August 2005, the Veteran identified 2005 as the initial date of onset for diabetes and 2003 as the initial date of onset for his hypertension and heart problem. In his hearing testimony, he said he was first diagnosed with hypertension in 1990. He has submitted no evidence from any medical professional suggesting that any of the claimed conditions are related to service. Accordingly, the evidence suggests that the Veteran did not incur his claimed disabilities in service and that they did not develop until many years after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). The Veteran claimed that his heart condition was the secondary result of his diabetes mellitus, type II. Because the Board is denying service connection for diabetes mellitus, type II, it follows that the heart condition claim cannot be granted on a secondary basis. See 38 C.F.R. § 3.310. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Although the evidence demonstrates the presence of current disabilities - specifically diabetes, a heart arrhythmia, kidney cancer, and hypertension - the preponderance of the evidence weighs against a finding that a causal connection exists between service and any of these conditions. Thus, the benefit of the doubt doctrine does not apply, see 38 U.S.C.A. § 5107(b), and the claims must be denied. ORDER Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for cancer of the kidneys is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs