Citation Nr: 1801886 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 06-31 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for visual impairment, claimed as glaucoma, diabetic retinopathy, and vision problems, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Heath A. Hixson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had active service from July 1966 to May 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and an April 2006 rating decision by the VA RO in Roanoke, Virginia. This case is currently under the jurisdiction of the Roanoke, Virginia VA RO. The Board remanded these matters in November 2008, November 2010, November 2012, March 2014, and June 2016. In August 2008, the Veteran testified during a hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. In September 2012, the Board offered the Veteran the opportunity to have another Board hearing. In October 2012, the Veteran indicated that he wanted to testify at another hearing before a VLJ at his local VA RO. See 38 C.F.R. § 20.717. That hearing was held in December 2013 before the undersigned VLJ. Transcripts of both the August 2008 and December 2013 Board hearings are of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The most probative evidence does not establish that the Veteran was exposed to Agent Orange or other herbicides during his active duty service, including in Thailand. 2. The most probative evidence does not establish that it is at least as likely as not that, type II diabetes mellitus, peripheral neuropathy of the upper and lower extremities, or vision impairment, was incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus are not met. 38 U.S.C.A. § 1110, 5100, 5103, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for peripheral neuropathy of the upper and lower extremities are not met. 38 U.S.C.A. § 1110, 5100, 5103, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). 3. The criteria for service connection for visual impairment, claimed as glaucoma, diabetic retinopathy, and vision problems are not met. 38 U.S.C.A. § 1110, 5100, 5103, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria In order to establish service connection on a direct basis, generally there must be probative 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116 (a) (1); 38 C.F.R. § 3.307 (a) (6). Such diseases include early onset peripheral neuropathy and diabetes mellitus. In addition, VA's Compensation & Pension Service has issued information concerning the use of herbicides in the Kingdom of Thailand (Thailand) during the Vietnam War. In a May 2010 bulletin, Compensation & Pension Service indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), 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. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, if a Veteran served 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 military occupational specialty, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases were the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. M21-1MR. Stated another way, Compensation & Pension Service has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, Compensation & Pension Service stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." Analysis The medical record supports the Veteran's claims that he currently has diabetes, peripheral neuropathy, and vision problems. As such, the current disability status for each disability at issue has been established. As to an in-service injury, disease or event, the evidence does not reflect, and the Veteran does not contend, that his current disabilities had their onset during his active service. Instead, the Veteran contends that each of his claimed disabilities developed after service and is related to in-service herbicide agent exposure. Indeed, the Veteran has not asserted, and the record does not show, manifestations of the disabilities at issue during service, or evidence of any in-service occurrence or event, to include herbicide exposure. As such, the preponderance of the evidence is against service connection on a nonpresumptive direct-incurrence basis. As to entitlement to service connection on a presumptive direct-incurrence basis, the Veteran specifically contends that Agent Orange was stored and used at his base in Thailand, and that he saw barrels with orange rings stored at the end of a runway. He states that he was sometimes tasked with driving a General around the base and picking up visitors at the airfield. He also indicated that he had to walk through the jungle to get to work, and that he was exposed at that time. The Veteran further contends that he travelled to the Republic of Vietnam in the course of his duties to deliver messages. The Veteran indicated that this involved driving to a location or delivering to a location on the ground. The record shows that the Veteran's MOS was an administrative assistant. The Veteran's service personnel records confirm that the Veteran served at Nakhon Phanom RTAFB from May 1969 to May 1970. Service personnel records do not show the Veteran setting foot in Vietnam. Responses to inquiries from VA to the JSRRC indicated that records do not show the Veteran or other unit personnel delivered messages to the Republic of Vietnam as part of their assignments. While the JSRCC also reported that no herbicides were used or stored at the base, the Board has considered whether herbicide exposure should be acknowledged on a facts found or direct basis. The record does not reflect that the Veteran served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter. While the Board acknowledges the Veteran's contentions that he drove to the perimeter and saw Agent Orange at the runway, a review of the Veteran's military records did not show duties that would take the Veteran away from his desk. The Board acknowledges that the record contains lay witness statements in support of the Veteran's contentions regarding service in the Republic of Vietnam. However, the lay statements are only accounts of what the Veteran told the lay witness, and not a first-hand corroborating account of the Veteran's duties. In light of the foregoing, the Board finds that the service records are more probative and persuasive than the Veteran's subjective assertions as to his duties in Thailand during the Vietnam Era and his presence in the Republic of Vietnam. Thus, the preponderance of evidence is against granting service connection on a presumptive theory of exposure to an herbicide agent such as Agent Orange during service. The Board is cognizant of the holding in Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Court in Bardwell held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. In this case, the record is negative for any evidence that the Veteran was exposed to herbicides other than his own assertions. As such, the evidence does not support the contention that the Veteran was exposed to herbicides during service While a March 2005 letter from the Veteran's doctor associates the Veteran's neuropathy with diabetes, and medical records support that the Veteran was diagnosed in December 1999, many years after service, service connection has not been established for any disability, to include diabetes mellitus. Additionally, as the record does not reflect that the RO has considered entitlement to service connection for any disability at issue as secondary to a service-connected disability, such has not been developed for appellate consideration, and the Board will not address entitlement to service connection on the basis of secondarily due to a service-connected disability. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for visual impairment, claimed as glaucoma, diabetic retinopathy, and vision problems, to include as due to exposure to herbicide agents, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs