Citation Nr: 18141302 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-46 751 DATE: October 10, 2018 ORDER Entitlement to diabetes mellitus (DM) to include as a result of exposure to herbicides, is denied. Entitlement to an acute kidney condition to include as a result of exposure to herbicides, or as secondary to DM, is denied. Entitlement to service connection for coronary artery disease (CAD) to include as a result of exposure to herbicides, is denied. Entitlement to service connection for hypertension to include as a result of exposure to herbicides, or as secondary to an acute kidney condition, is denied. Entitlement to peripheral artery disease (PAD) to include as a result of exposure to herbicides, or as secondary to DM, is denied. FINDINGS OF FACT 1. The Veteran served in Thailand, but exposure to herbicides is not verified and thus is not demonstrated by the record evidence. 2. The Veteran’s DM did not begin in service and was not otherwise caused by his military service. 3. The Veteran’s acute kidney condition did not begin in service and was not otherwise caused by his military service. 4. The Veteran’s CAD did not begin in service and was not otherwise caused by his military service. 5. The Veteran’s hypertension did not begin in service and was not otherwise caused by his military service. 6. The Veteran’s PAD did not begin in service and was not otherwise caused by his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for DM are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for an acute kidney condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for PAD are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1971 to October 1974, including service in Thailand. He died in August 2016. This matter comes before the Board of Veteran’s Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A timely notice of disagreement was received in October 2013, a statement of the case was issued in November 2015, and a VA Form 9 was received in December 2015. The Veteran elected not to appear before the Board for an optional hearing. For claimants who died on or after October 10, 2008, 38 U.S.C. § 5121A permits an eligible person to file a request to be substituted as the Appellant for purposes of processing a claim to completion. The Appellant, who is the Veteran’s widow, has been substituted for the Veteran pursuant to 38 U.S.C. § 5121A. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110; 38 C.F.R. 3.303 (a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§3.310 (a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. §3.310 (a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. §3.310 (b)). In order to establish service connection for a disability on a secondary basis, there must be (1) medical evidence a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection, or link between, the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. Herbicide Exposure The governing law provides that a “veteran 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, 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 that service.” 38 U.S.C. § 1116 (f). Moreover, a “veteran who, during active military, naval, or air service, served in between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 that service.” 38 C.F.R. § 3.307 (a)(6)(iv). This statutory and regulatory presumption, however, is not for application in this case as the Veteran does not have requisite service in-country in the Republic of Vietnam during the Vietnam Era, or in a unit that operated in or near the Korean DMZ. That notwithstanding, VA has 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 bases security purposes as evidence in the “Project CHECO Southeast Asia Report: Base Defense in Thailand.” The Compensation and Pension Service has determined that a special consideration on herbicide exposure on a factual basis should be extended to those Veterans whose duties placed then on or near the perimeters of Thailand military Bases. This special consideration only applies during the Vietnam Era from February 28, 1961, to May 7, 1975, and it provides that herbicide exposure may be established on a direct, facts-found basis if the Veteran served in with the United States Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and served as an Air Force security policeman, security control dog handler, member of the security police squadron, or otherwise served near the air base perimeters as shown by evidence of military occupational specialty (MOS), daily work duties, performance evaluation reports, or other credible evidence. See, e.g., VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (5). The Appellant claims that the Veteran was exposed to herbicide agents, including Agent Orange, while stationed at Ko Kha Air Station, Thailand. She contends that the Veteran was stationed on a base that was cleansed with pesticides inside and outside the perimeter. She also contends that the Veteran made trips up and down a trail that was treated with Agent Orange. The Board acknowledges that the Veteran served in Thailand from July 1973 to July 1974. However, there is nothing in the Veteran’s record that indicates that he served in the capacity of a guard around the perimeter of Ko Kha Air Station. The Board recognizes that the occupational specialties listed for consideration of exposure on a direct, fact-found basis in Thailand were those service members whose service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. The Appellant has not provided any evidence to support the contention that the Veteran was assigned to guard duty on the perimeter of the air base. Additionally, VA made a formal finding of a lack of information to concede exposure to herbicide agents in June 2013. VA determined that there was insufficient information of record to request a research of unit records from JSRRC for Agent Orange verification. Accordingly, the record before the Board does not establish exposure to herbicides on a direct, fact found basis on account of the Veteran’s duty in Ko Kha Air Station, Thailand. Factual Background The Veteran’s service treatment records are negative for any complaints of or diagnoses for DM, an acute kidney condition, CAD, hypertension, or PAD. Specifically, the Veteran’s February 1971 enlistment examination and October 1974 separation examination all show “normal” results for “endocrine system,” “abdomen and viscera,” “heart,” “vascular system,” “upper extremities,” and “lower extremities.” Additionally, blood pressure readings at both examinations were within normal limits. The Veteran’s post-service treatment records include private treatment records from September 1998 showing that he had a recent diagnosis of DM. The private examiner noted that the Veteran’s DM has possibly caused some neuropathy. VA treatment records from October 1998 show a history of hypertension. VA treatment records from November 2000 show a diagnosis for CAD, status post non-q-wave myocardial infarction on November 2000. VA treatment records from December 2011 indicate that the Veteran needed to follow up with vascular surgery regarding his peripheral vein disease. In March 2012, VA treatment records show that the Veteran was initially thought to have prerenal azotemia but given his marked increase in CR with ACEI, renal artery stenosis was suspected. Analysis The Veteran’s claims of service connection for DM, an acute kidney condition, CAD, hypertension, and PAD are denied on a direct basis. First, there is no evidence of any blood sugar, endocrine system, kidney condition, heart, or vascular system condition while in service. As noted above, the Veteran’s February 1971 enlistment examination and October 1974 separation examinations both show “normal” results for “endocrine system,” “abdomen and viscera,” “heart,” “vascular system,” “upper extremities,” and “lower extremities.” Additionally, there is no medical evidence in the record that otherwise links the Veteran’s DM, kidney, CAD, hypertension, or PAD conditions to his active military service, or that establishes that any of the conditions were manifested within the first post-service year. Based on the evidence of record, the Board concludes that entitlement to service connection for DM, an acute kidney condition, CAD, hypertension, and PAD cannot be awarded. There is no competent persuasive evidence of record to show that the Veteran was exposed to herbicide agents during service and those disabilities have not otherwise been related to any event or injury in service. The claimed disabilities have not been related directly to service, nor were they present to a compensable degree within one year of separation. As entitlement to service connection for DM and an acute kidney condition has not been established, a discussion regarding entitlement to service connection for an acute kidney condition and PAD as secondary to DM and entitlement to service connection for hypertension as secondary to an acute kidney condition is not necessary. This is so because the underlying disorders are not service-connected, and as such, the Appellant’s claims for secondary service connection are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (Continued on next page) There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has carefully considered the benefit of the doubt rule, but as the preponderance of the evidence is against the claims, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel