Citation Nr: 1759730 Decision Date: 12/21/17 Archive Date: 12/28/17 DOCKET NO. 12-08 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from March 1972 to November 1974. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran was scheduled for a Travel Board hearing in September 2015 but did not appear for the hearing and has not offered good cause for his failure to appear or requested a new hearing. In a March 2016 Decision, the Board denied the Veteran's claims for entitlement to service connection for ischemic heart disease and diabetes mellitus, type II. The Veteran appealed this denial to the United States Court of Appeals for Veterans' Claims (Court). Pursuant to the Court's April 2017 Order, this matter has been returned to the Board. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam and was not exposed to tactical herbicide agents, including Agent Orange in Thailand. 2. The Veteran's ischemic heart disease did not have onset in service or within one year of service and is not etiologically related to service. 3. The Veteran's diabetes mellitus did not have onset in service or within one year of service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking entitlement to service connection for ischemic heart disease and diabetes mellitus, type II, to include as due to Agent Orange exposure. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The existence of a current disability is not at issue. Post-service VA medical treatment records show that the Veteran has been diagnosed with diabetes mellitus and coronary artery disease. At issue is whether these current disabilities are related to service. There is no evidence in this case that the Veteran's ischemic heart disease or diabetes mellitus had onset during the Veteran's period of active service. Accordingly, service connection for these disabilities cannot be granted on a direct basis based on in-service incurrence. However, the Veteran has contended that he was exposed to Agent Orange during his active service and therefore, that service connection for diabetes mellitus and ischemic heart disease should be granted on a presumptive basis. VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e) (2017). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 39 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Although the Veteran had active service from March 1972 to November 1974, his service records do not indicate, and he has not claimed, any service in Vietnam. Rather, the Veteran has reported, and his records show, service in Thailand, specifically at Udorn Royal Thai Air Force Base (Udorn Air Base) from February 1974 to November 1974. The Board notes that in August 2011, a Memorandum was completed as to a formal finding on lack of information required to verify Agent Orange exposure. A VA Memorandum for Record regarding herbicide use in Thailand during the Vietnam Era was placed in the Veteran's claims folder. This memorandum shows that the Department of Defense' list of facilities indicated that only limited testing of tactical herbicides was conducted in Thailand from April 2 to September 8, 1964 at the Pranburi Military Association associated with the Replacement Training Center of the Royal Thai Army near Pranburi, Thailand. The location was noted to be "not near any U.S. military installation or Royal Thai Air Force Base." The memorandum notes that VA received a letter from the Department of the Air Force which indicates that there were no records of tactical herbicide storage or use in Thailand. The memorandum also stated that there was documented use of non-tactical (commercial) herbicides within fenced perimeters, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. Personnel records show the Veteran's military occupational specialty was air frame specialist, which included the inspection and repair of aircraft. At his July 2012 DRO hearing the Veteran testified that he did sheet metal work when stationed in Thailand, including on planes, which he speculated could have included aircraft that sprayed Agent Orange in Vietnam. However, the Board notes that the VA Memorandum of Record discussed above explains that: [T]here 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. Accordingly, the Board finds that there is no basis to presume that the Veteran was exposed to tactical herbicides such as Agent Orange based on his work as an airframe specialist. However, the Veteran has also claimed that he had contact with herbicides based on contact with the perimeter of the base. As noted above, VA's Compensation & Pension Service (C&P) has determined that there was significant use of herbicide agents on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. The May 2010 bulletin identifies several bases in Thailand, including Udorn Air Base, where the Veteran's service records indicate he was stationed. C&P has indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. M21-1, Part IV, Subpart ii, 1.H.5.b. In his January 2012 notice of disagreement the Veteran stated that he spent time with the security police checking the perimeter of the base and checking the bomb dump. However, at his July 2012 DRO hearing the Veteran testified that he would occasionally drive a jeep out to the bomb dump where there was no vegetation around the perimeter, but he did not otherwise testify to performing any security detail around the perimeter. He also claimed that the vegetation near where he lived off-base was sprayed with defoliant and that he crossed the perimeter of the base to enter and leave the base daily. In a November 2013 statement the Veteran's representative reported that the Veteran's lived in the barracks and walked or rode a vehicle from the barracks to the maintenance area multiple times per day along the perimeter road. It is unclear whether the representative was referring to the Veteran's off-base housing when referencing "barracks". Based on the available evidence, the Board finds that the Veteran did not work as a security policeman, a security patrol dog handler, or a member of a security police squadron while stationed in Thailand. Although on one occasion the Veteran claimed that he spent time with the security police checking the perimeter of the base, he did not testify at his personal hearing about performing any security details around the base perimeter and there is nothing in his available personnel records to suggest that he was ever assigned to temporary duty as a security officer during his deployment in Thailand. Furthermore, the Board notes that patrolling the perimeter of the base would not be consistent with the Veteran's stated assignment as an airframe specialist, which according to personnel records involved inspecting and repairing aircraft, as well as manufacturing parts. Accordingly, the Board concludes that a preponderance of the evidence supports a finding that the Veteran's military duties did not involve frequent or prolonged contact with the perimeter of the air base. Additionally, the Board has considered the Veteran's argument that his passing in and out of the base on a daily basis to go to and from his off-base housing to his duty station should entitle him to a presumption of herbicide exposure. However, the guidance concerning presumptive exposure is clear. The Board is not suggesting that there are not other circumstances which might be comparable to the type of exposure experienced by these security personnel, the Board does find that merely passing through the base perimeter on a daily basis is not reasonably analogous and does not entitle the Veteran to the presumption of herbicide exposure. Finally, the Board has considered whether there is any evidence to support a grant entitlement to service connection on a direct basis due to exposure to commercial herbicides or pesticides. However, the Veteran has not presented any medical evidence to support such a connection. Even if the Veteran sincerely believes that exposure to commercial herbicides/defoliants during service caused his current diabetes and coronary artery disease, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has diabetes mellitus and ischemic heart disease due to his alleged chemical exposure in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for ischemic heart disease and diabetes mellitus, type II must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for diabetes mellitus, type II is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs