Citation Nr: 1804023 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-25 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for a heart condition. 3. Entitlement to service connection for sleep apnea, to include as secondary to diabetes mellitus type II. 4. Entitlement to service connection for a memory loss disability, to include as secondary to diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force from March 1961 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for the claimed conditions. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in November 2017. A copy of the hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Diabetes mellitus type II is not etiologically related to service, to include alleged herbicide agent exposure in service. 2. Cardiomyopathy is not etiologically related to service, to include alleged herbicide agent exposure in service. 3. Sleep apnea is not etiologically related to service, and is not proximately due to or aggravated by a service-connected disability. 4. Memory loss is not etiologically related to service, and is not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for service connection for a memory loss condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). A. Agent Orange Exposure The Veteran has asserted that his diabetes mellitus type II and heart condition are associated with exposure to Agent Orange during military service. VA regulations provide that diabetes and ischemic heart disease are presumed to be associated with herbicide agent exposure in service, assuming such exposure has been demonstrated. 38 C.F.R. § 3.309(e). He reported being exposed to Agent Orange while serving in Thailand. The assignment listing in his service personnel records show that he was stationed in Japan from April 1963 through March 1965. These records also listed Japan as his only foreign service. However, a September 1964 record shows the Veteran was assigned to "TDY" (temporary duty) to "SEA" (Southeast Asia) for 45 days. He testified and submitted statements that this temporary assignment was to the Korat Air Force Base (AFB) in Thailand. Even if the Board accepts that the Veteran was in Thailand, his exposure to Agent Orange has not been established. There are no regulations which presume herbicide agent exposure for veterans who served in Thailand. However, VA has adopted a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual (VA Manual) M21-1, IV.ii.1.H.5.b. The first step is determining whether the Veteran served at one of the qualifying Royal Thai AFBs, and served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In this case, the Veteran was reportedly at Korat, a qualifying Royal Thai AFB, but not in any of the aforementioned positions. He served as an aircraft navigational systems repairman as documented by his testimony and in his service personnel records for the relevant period. These records, including performance evaluations generated during service, do not reflect that his duties involved work near the base perimeter. The second step is determining whether the Veteran served at a U.S. Army base in Thailand in a military police occupational specialty, or in a military police unit. The evidence is clear that he was not at an Army base and was not affiliated in any way with the military police. Therefore, the process moves to the third step. The third step requires VA to ask the Veteran for the approximate dates, location, and nature of his alleged herbicide agent exposure. The fourth step is to determine whether the Veteran provided the requested information within 30 days. The fifth and sixth steps require VA to review the information to determine if herbicide agent exposure can be established on a facts-found basis. The seventh step requires VA to forward the case to the Joint Services Records Research Center (JSRRC) for either verification of the alleged herbicide agent exposure, or a formal finding that sufficient information to verify herbicide agent exposure does not exist. In this case, a May 2013 Memorandum from the JSRRC stated that it could not corroborate the Veteran's exposure to herbicide agents in Thailand because his job description did not place him on the perimeter. In an August 2017 Memorandum, it stated that the Veteran had not provided a statement regarding the nature of his exposure other than serving in an area with acknowledged herbicide agent usage. During his November 2017 hearing, the Veteran testified that he was periodically asked to stand watch on the perimeter. He also stated that the aircraft he repaired had returned from Vietnam, sometimes with branches or foliage on them, and that he may have been exposed to Agent Orange as a result. Although these statements were not reviewed by the JSRRC, the Board finds that remand for such consideration is not warranted. First, while the Veteran reported being periodically on the perimeter, the verification procedure for herbicide agent exposure in Thailand only concedes exposure for those personnel whose duties placed them on or near the perimeter as discussed above, and the JSRRC already determined that the Veteran was not among those personnel. Having reviewed the Veteran's service records, the Board also finds that the Veteran's statements are not persuasive. Second, to the extent that the Veteran reported exposure to Agent Orange through the aircraft he repaired, the JSRRC has already determined that it cannot document or verify exposure to herbicide agents based on contact with aircraft that flew over Vietnam or equipment used in Vietnam. M21-1, IV.ii.1.H.2.m. For these reasons, the Board concludes that exposure to an herbicide agent, such as Agent Orange, has not been established. B. Direct Service Connection The Board has also considered whether any of the Veteran's claimed conditions were incurred during military service, regardless of herbicide agent exposure. With regard to his sleep apnea claim, he testified that he had the condition all his life, including during service, and would wake up periodically at night. With regard to his memory loss claim, he submitted a July 2012 statement in which he described an occasion in which one aircraft went into afterburner without warning while the Veteran was 100 feet away, resulting in an episode of confusion and a blackout of short-term memory. However, service treatment records are negative for any complaints, treatment, or diagnoses relating to any of the claimed conditions. The Veteran's February 1965 separation examination was normal, and he denied any history of memory loss or sleep trouble. The Board finds these treatment records to be more probative than the Veteran's recent statements regarding the presence or absence of symptoms in service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). In addition, during his February 1965 separation examination, he reported a history of leg cramps secondary to excessive walking. This indicates the Veteran was reporting active or prior problems at the time of his discharge. The absence of complaints regarding any of the claimed conditions suggests they were not present at the time. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Diabetes and a heart condition (cardiomyopathy) were not diagnosed until many years after service. The Veteran also testified during his hearing that he had experienced memory problems for only about 20 years, which corresponds to an onset date of many years after service. Therefore, the overall weight of the evidence is against a finding that any of the claimed conditions were incurred during service. C. Secondary Service Connection The Veteran has claimed that his sleep apnea and memory loss condition may be secondary to his diabetes. Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). However, as diabetes has not been service-connected, other medical conditions cannot be service-connected on a secondary basis to diabetes. D. Conclusion The Board is grateful for the Veteran's honorable military service. However, the preponderance of the evidence is against finding that the Veteran has diabetes, sleep apnea, memory loss, or a heart condition that are etiologically related to his active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for diabetes mellitus type II is denied. Service connection for a heart condition is denied. Service connection for sleep apnea is denied. Service connection for a memory loss condition is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs