Citation Nr: 1801466 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-33 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, claimed as due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as secondary to diabetes mellitus, type 2. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as secondary to diabetes mellitus, type 2. 4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus, type 2. 5. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, type 2. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. In June 2016, the Board remanded the appeal for additional development and it now returns for further appellate review. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam, in one of the units designated by the Department of Defense as having served in or near the Korean demilitarized zone (DMZ), or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, and, thus, he is not presumed to have been exposed to herbicide agents. 2. The evidence of record does not competently and credibly establish that the Veteran was exposed to herbicides as defined by VA regulations while stationed in Thailand. 3. Diabetes mellitus, type 2, is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 4. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by a service-connected disability. 5. Peripheral neuropathy of the bilateral upper extremities is not shown to be casually or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by a service-connected disability. 6. Peripheral neuropathy of the bilateral lower extremities is not shown to be casually or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by a service-connected disability. 7. Erectile dysfunction is not shown to be causally or etiologically related to any disease, injury, or incident in service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran argued that VA failed in its duty to assist by not providing him VA examinations, which will be discussed herein, neither he nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus and cardiovascular-renal disease, to include hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. Diabetes mellitus, type 2, and early onset peripheral neuropathy are among those diseases for which presumptive service connection is available and must manifest to a degree of 10 percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); but see also 38 C.F.R. § 3.309(e), Note 2. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Moreover, VA's Adjudication Procedures Manual, M21-1, notes that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, i.e., February 28, 1961, to May 7, 1975, to include U-Tapao Air Base. See M21-1 at IV.ii.1.H.5. Such notes that the majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served in the Air Force on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. If the evidence does not indicate that a veteran served on a specified RTAFB in such a capacity, he should be requested to furnish the approximate dates, location, and nature of alleged exposure and, if he does, a request should be sent to Joint Services Records and Research Center (JSRRC) for verification of exposure to herbicides. Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may not be established on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the Veteran does not allege, nor does the record reflect, that he first manifested diabetes, hypertension, peripheral neuropathy of the bilateral upper and lower extremities, or erectile dysfunction during service or within one year of his discharge from service, or that such are otherwise related to his active duty service on a direct basis. Rather, the Veteran has claimed that his diabetes is related to his alleged exposure to herbicide agents during service and that his remaining disorders are secondary to his diabetes. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). The record reflects that the Veteran is diagnosed with his claimed disorders. See March 3, 2009; November 20, 2014; and February 14, 2017 VA treatment records. With regard to the Veteran's alleged exposure to herbicide agents during service, as noted in the June 2016 remand, he originally alleged herbicide exposure while on temporary duty (TDY) to Vietnam with the Air Force in 1972 when he was at Tan Son Nhut near Saigon. In May 2008, the Veteran amended his statement to indicate that he was in Vietnam from January 1973 to March 1973. In support of his claim, he submitted a buddy statement from L.M., who reported seeing the Veteran in Vietnam, but did not provide further details as to date or location. He also submitted a drawing of a child, which he indicated was his daughter as drawn by a Vietnamese native. In June 2009, the Veteran reported that he traveled to Vietnam from January 1973 to March 1973 aboard a C-141, and was assigned to Aerial Port Squadron. He reported that he was assisting such outfit with packing and crating supplies for return to the United States at Tan Son Nhut Air Base near Saigon. The Veteran's service personnel records reflect service with the 438th Aerial Port Squadron out of McGuire Air Force Base (AFB) in New Jersey and the 635th Transportation Squadron out of U-Tapao RTAFB. Such further reflect assignment to Thailand from November 2, 1972, to March 2, 1973, with no other foreign service, to include in Vietnam, noted. His DD 214 shows service in Thailand for 136 days. Similarly, the Veteran's STRs reflect treatment at McGuire and U-Tapao. In January 2008, the National Personnel Records Center (NPRC) indicated that it was unable to confirm the Veteran's service in Vietnam and, in October 2010, pay records from the Defense Finance and Accounting Service (DFAS) were received; however, such did not confirm service in Vietnam. In September 2011, JSRRC reported that the available January to March 1973 historical reports submitted by the 635th Combat Support Group (635th CSG), the higher headquarters of the 635th Transportation Squadron (635th TS), were reviewed. The histories document that, during the February 5-9, 1973 timeframe, the personnel from the 635th CSG Accounting and Finance Office (A&FO) traveled to Tan Son Nhut Air Base to meet with the A&FO personnel representatives from the 13th Air Force, Da Nang Air Base and Tan Son Nhut Air Base. The group planned the respective accounts transfers from South Vietnam to U-Tapao, Thailand. A tentative memorandum of understanding was drawn up to include support for military travel pay. On February 19 through March 10, one A&FO personnel returned to Tan Son Nhut with treasury checks for the military personnel that were departing South Vietnam. The history did not specifically state that the 635th TS provided the transportation for the TDY trips. Based on the foregoing, the AOJ determined in a March 2012 Memorandum that the evidence did not show that the Veteran served in Vietnam. Furthermore, the Veteran does not contend, and the evidence does not show, that he served in or near the Korean DMZ, or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft. Therefore, he is not presumed to have been exposed to herbicide agents. However, at the April 2016 Board hearing, the Veteran testified that, while stationed at U-Tapao, he performed duties of packing and crating supplies, and would travel to the perimeter to leave supplies. He also indicated that he would travel to Udorn and Korat to deliver supplies. In this regard, the Board notes that his military occupational specialty during service, as shown on his DD Form 214, was 60154, Packing Specialist. Thus, pursuant to the June 2016 remand, the AOJ was instructed to attempt to confirm herbicide exposure coincident with such service in accordance with the M21-1. In this regard, in an April 2017 correspondence, it was determined that U-Tapao did not use any commercial grade herbicides after September 1972, so anyone at U-Tapao from November 1972 through March 1973 would not have been exposed. It was also found that Udorn never used herbicides at any time and, while Korat did use herbicides during April to December 1972, the official unit histories of the 635th Transportation Squadron made no mention of sending any of their packing specialists to any other base during the time periods indicated in the request. Thus, in August 2017, a formal finding was made that the evidence did not show that the Veteran was exposed to herbicides during his service in Thailand. In light of the foregoing, the Board concludes that there is no credible evidence that the Veteran was exposed to herbicides during his service or that he served in the Republic of Vietnam. The Board recognizes the Veteran's genuine belief that he was exposed to herbicides during his military service; however, he is not competent to identify the particular chemicals to which he was exposed. Further, the Veteran has submitted no evidence beyond lay statements and a drawing demonstrating that he was exposed to herbicides as contemplated by the governing regulation during his active service or that he served in the Republic of Vietnam. In light of these facts, the Board concludes that there is no competent or credible evidence that the Veteran was exposed to herbicides while stationed in Thailand or that he served in the Republic of Vietnam. Thus, service connection for diabetes is not warranted as due to claimed exposure to herbicide agents during service. Additionally, in regard to the Veteran's contention that he has hypertension, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction that are secondary to his diabetes, VA regulations provide that a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service-connected. However, as discussed above, the Veteran is not service-connected for diabetes. As such, the Board finds that, under the law, he lacks legal grounds to establish entitlement to service connection for such disorders as secondary to his diabetes. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his hypertension, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction, service connection on a secondary basis is not applicable under the law. Thus, such claims are without legal merit. Id. With regard to the Veteran's argument that VA failed to provide him a VA examination and/or opinion for his claims on appeal, the Board finds such is not necessary in the instant case. Specifically, the Veteran's sole theory of entitlement with respect to his diabetes is that such disorder is related to his exposure to herbicides during service; however, as the evidence of record indicates he was not exposed to herbicides during his service, an opinion on the matter is not necessary. Additionally, as the Board herein as denied service connection for diabetes, service connection as secondary to such disorder is barred as a matter of law. Moreover, the Veteran's service treatment records are silent as to any complaints or symptoms associated with the claims on appeal. Furthermore, the record does not otherwise contain any competent evidence suggesting a causal relationship between such disorders and his military service. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For all of these reasons, the evidence does not indicate that the Veteran's diabetes, hypertension, peripheral neuropathy of the bilateral upper and lower extremities, or erectile dysfunction may be related to active service such as to require an examination, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, service connection is not warranted for diabetes, hypertension, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims. As such, that doctrine is not applicable in the instant appeal and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for diabetes mellitus, type 2, is denied. Service connection for peripheral neuropathy of the bilateral upper extremities is denied. Service connection for peripheral neuropathy of the bilateral lower extremities is denied. Service connection for hypertension is denied. Service connection for erectile dysfunction is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs