Citation Nr: 1803944 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-22 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1966 to October 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office. In November 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The probative, competent evidence is against a finding that the Veteran was exposed to herbicide agents during his military service. 2. The probative, competent evidence is against a finding that the Veteran's diabetes mellitus and ischemic heart disease had onset during service or within one year of separation from service or are otherwise related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any 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 a duty to assist argument). The Veteran asserts that while stationed in Puerto Rico he used a hand sprayer to dispense herbicide agents, and that this chemical exposure caused him to develop diabetes mellitus and ischemic heart disease. Specifically, in his September 2011 claim for benefits he reported spraying brush around an antenna and perimeter at the U.S. Navy radio station at Fort Allen, Puerto Rico. Service records confirm he served in Puerto Rico at Fort Allen from August 1967 to January 1969. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, VA has also established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus and cardiovascular-renal diseases, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The record reflects current diagnoses of coronary artery disease (an ischemic heart disease) and diabetes mellitus. The next question is whether these diseases are related to the Veteran's military service. Service treatment records show no complaints, treatment or diagnoses related to diabetes or heart disease. Relevant examinations at separation from service in October 1969 were normal. Diabetes was not diagnosed until 1993 and heart disease did not manifest until years after service. Given the above, the preponderance of the evidence is against a finding that diabetes mellitus or ischemic heart disease onset during service, or that diabetes mellitus or a cardiovascular-renal disease manifested to a compensable degree within the first year after discharge from service. Indeed, the Veteran has not alleged such; instead, he asserts that he developed these disorders as a result of exposure to herbicide agents during service. Board Hearing Tr. at 7. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, type II, and ischemic heart disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iv) are met. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). These diseases must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The relevant question in this case is now whether the Veteran, as he contends, was exposed in Puerto Rico to the types of herbicide agents that VA presumes cause diabetes mellitus and ischemic heart disease - specifically, 2,4-D, 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). The Board notes that the Veteran does not assert that he served in the Republic of Vietnam or any other location where VA would presume he was exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6). While no presumption of herbicide exposure has been satisfied, the Veteran is nevertheless entitled to show that he was actually exposed to herbicides while in service. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As an initial matter, the Board recognizes that in September 2011 a private physician stated that the Veteran's diabetes mellitus and coronary artery disease were "possibly related" to his reported history of exposure to 2-4-5-T and Agent Orange in the 1960's. In October 2016 a private physician made a similar statement about the Veteran's ischemic heart disease. The Board finds that these statements are speculative and do not assert actual opinions on the matter. Therefore they are of no probative value. In any event, as noted above, if exposure to herbicide agents is found, VA will presume that diabetes mellitus and ischemic heart disease were caused by such exposure and no medical opinion will be necessary. 38 C.F.R. § 3.309(e). This is not in dispute in this case. The record contains a report entitled Information from Department of Defense (DoD) on Herbicide Tests and Storage outside of Vietnam which indicates that herbicide agents were used several times in Puerto Rico in the 1960s. Upon review, however, the Board finds information in the report suggests that the Veteran would not have been exposed to these herbicides. The DoD report does not list Fort Allen as a location where herbicides were used. The DoD report indicates that in April 1966 and October 1966, as well as in the 1950s, field tests of defoliants were performed in Loquillo, Puerto Rico. The DoD report also indicates that at various times in 1967 herbicides were used near Rio Grande on the northeast coast of Puerto Rico. These herbicides were prepared as pellets and tested on varying types of vegetation. Also in 1967, testing of certain chemicals was conducted in Las Marias, Puerto Rico by personnel from Fort Detrick's Plant Science Lab. In May 1968 more pellet tests were performed in Las Mesas Cerros Mayaguez, Puerto Rico, many miles from Fort Allen. Upon review, the Board finds that the situations described in the DoD report do not reflect the type of spraying the Veteran asserts that he was involved in. In that regard, there is no indication that the Veteran was involved in testing the application of herbicides, as opposed to spraying plants around the antenna and perimeter at his radio station to maintain the area as he noted in his September 2011 claim for benefits and during his hearing. In addition, some of this testing occurred prior to the Veteran's arrival in Puerto Rico, and it all occurred in areas many miles from Fort Allen. Furthermore, much of the testing was noted to be of pellets, and the Veteran stated that he sprayed herbicide agents rather than using herbicide pellets. Finally, the record does not suggest and the Veteran has not alleged that he was part of the Fort Detrick Plant Science Lab. Given these findings, the Board finds that the DoD report weighs against a finding that the Veteran was exposed to herbicide agents while serving in Puerto Rico. In his September 2011 claim, and during his testimony before the undersigned, the Veteran stated that while serving in Puerto Rico he sprayed brush with DD 2,4,5,-T, as he remembered reading this on the barrel. However, in his September 2012 notice of disagreement he stated that he did not question anyone as to the chemical they used and all they knew for certain was that it killed foliage. The conflicting statements as to knowledge of what chemical was being used in Puerto Rico call into question the credibility of the statements. In support of the claim, the Veteran has also submitted a November 2011 statement from E.S. who indicates that radiomen in Puerto Rico around the time when the Veteran served were responsible for maintaining the perimeter and "sprayed something periodically." According to E.S., at least one barrel had an orange band and letters DD-245-T on it. The Board finds it unlikely that the Veteran and E.S. remember a series of letters and numbers they read on a barrel with such specificity 40 years later. In any event, the Board affords more probative weight to the DoD report, which is highly probative as it details when and where herbicides were used, and in some cases by whom, as opposed to recollections 40 years after the fact made by lay persons. In this regard, absent specialized training, a lay person is generally not competent to identify specific chemicals and compounds used for defoliation. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Given the above, the statements from the Veteran and E.S. do not in this case establish that the Veteran was personally exposed to herbicide agents as contemplated in section 3.307 and 3.309. The Board does not doubt that the Veteran sprayed something to control vegetation while he served in Puerto Rico. However, the evidence is against a finding that he sprayed an herbicide agent which would raise the presumption of service connection for conditions such as diabetes mellitus and ischemic heart disease. See 38 C.F.R. §§ 3.307, 3.309. In addition, these diseases were not present during service or for many years after service and there is no competent evidence linking the diseases to service, to include as a result of exposure to chemicals used to control vegetation in Puerto Rico. As such, the preponderance of the evidence is against the claims and they must be denied. ORDER Entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for diabetes mellitus is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs