Citation Nr: 18149744 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 12-17 754 DATE: November 13, 2018 ORDER Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for neuropathy of the feet, to include as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for a left eye disorder, to include as secondary to DM II, is denied. REMANDED Entitlement to service connection for hypertension (HTN) is remanded. FINDINGS OF FACT 1. The Veteran’s service in the Republic of Vietnam during the Vietnam era is not confirmed. 2. It was determined that herbicide agents were not shipped to or through, or unloaded, used, or buried in Okinawa, Japan. 3. The evidence does not demonstrate that he was stationed at an Air Force or Army base in Thailand where his duties were performed at the perimeters of the base. 4. Based on the above, exposure to herbicide agents during the Veteran’s military service cannot be presumed. 5. The evidence does not show that the Veteran’s DM II was incurred in or resulted from active duty service, to include as secondary to claimed in-service herbicide agent exposure; nor did it manifest within one year from separation of service. 6. The evidence does not show that the Veteran’s neuropathy was incurred in or resulted from active duty service, to include as secondary to claimed in-service herbicide agent exposure. 7. The evidence does not show that the Veteran’s left eye disorder was incurred in or resulted from active duty service, to include as secondary to claimed in-service herbicide agent exposure or DM II. CONCLUSIONS OF LAW 1. The criteria to establish service connection for DM II are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for neuropathy of both feet are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for a left eye disorder are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1964. The Board notes that the Veteran initially contended that his claimed disorders were all a result of exposure to herbicide agents or, in the alternative, to asbestos. However, at his March 2013 hearing, he stated that he no longer desired to proceed with the claims on the basis of asbestos exposure. Therefore, this contention will not be addressed herein. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent here, DM II and organic diseases of the nervous systems (such as neuropathy) are considered “chronic diseases” under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic disease” in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as DM II and neuropathy, becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Additionally, VA has established a presumption of herbicide exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, 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. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. 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 base security purposes as evidenced in a declassified Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Therefore, VA has established specific procedures for verifying exposure to herbicides for veterans who served in Thailand during the Vietnam Era. Special consideration of herbicide agent exposure on a facts-found or direct basis are extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases, which allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFBs) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. 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 his MOS, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure and applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Certain diseases, such as DM II and early-onset peripheral neuropathy, are deemed associated with herbicide agent exposure under VA law and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Board notes that during the course of the claim, there was a change in the law concerning what type of peripheral neuropathy is presumptively service-connected based on in-service Agent Orange exposure. Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised by replacing the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy. VA also removed Note 2 to § 3.309(e), which had required that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy still must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). However, the peripheral neuropathy no longer needs to be transient. See 78 Fed. Reg. 54763 (September 6, 2013). These amendments apply to claims received by VA on or after September 6, 2013, and to claims pending before VA on that date. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Issues 1-3: Entitlement to service connection for DM II, neuropathy of the feet, and a left eye disorder, to include as secondary to exposure to herbicide agents The Veteran contends that he was exposed to herbicide agents during service. Specifically, in his May 2012 VA Form 9, the Veteran reported that he served in Okinawa and Subic Bay, Philippines, both of which were used to store and transport herbicide agents during a time when “the build-up for Vietnam was in full swing and supplies, to include Agent Orange, were being funneled through both facilities.” Additionally, in his August 2012 VA Form 646, the Veteran stated that he spent a small amount of time in Vietnam and served in Okinawa during the Vietnam conflict, where his primary duty location was Naha Port, a principal port for material being transported to Vietnam. He worked in various supply areas, moving cargo. He also reported that herbicide agents were used on Okinawa to control vegetation on and around military facilities. He contended that it was reasonable to expect that as a supplies person he came in contact with, or was exposed to, herbicide agents in the course of his duties. Furthermore, at his March 2013 Board hearing, the Veteran reported that he served in Okinawa, Thailand, Philippines, and “areas in between” by traveling by ship. He was a supply sergeant for six months or more at a supply depot at Naha Port in Okinawa, where supplies from bedding to barrels came in mostly by plane and ship. He did not know what was in the barrels, which came in regularly and had warning signs on them. He reported that he did not recall ever setting foot in Vietnam, although it was a possibility as he was in Thailand and had war games, but he did not recall where he was stationed in Thailand. However, he said that he was in Thailand for no more than three weeks as part of the Second Battalion First Marine division, where he would go into and out of the jungles throughout the day. The Veteran was informed of his DM II when he was being treated for his retinal detachment five or six years ago. He believed his DM II resulted from handling equipment and barrels in Okinawa as there was no family history of DM II. In March 2017, the Veteran reported that he was stationed in Thailand, where herbicide agents were used. He stated that they “pulled” guard duty on the perimeter as his MOS was a fire team leader. Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran’s service connection claims for DM II, neuropathy of both feet, and a left eye disorder. Service treatment records (STRs) include a June 1964 separation examination report reflecting that the Veteran had no albumin or sugar in his urine; normal clinical evaluation of the lower extremities, eyes, ophthalmoscopically, pupils, and ocular motility; and vision of 20/20 in his left eye. Private treatment records reflect that the Veteran was able to see better outside in the sunlight in November 2005, could start seeing shadows in January 2006, and was unable to see out of his left eye in April 2006. It also reflects that the Veteran had some pain, tingling, and numbness in his toes in June 2007, and was assessed with DM II with neuropathy in August 2007. In December 2008 and June 2009, he was assessed with DM II with early peripheral neuropathy. VA treatment records from March 2008 reflect an assessment of controlled DM II, and that the Veteran had a retinal detachment, for which he had multiple surgeries. Unfortunately, he did not regain sight, and was told there was nothing else that could be done. He was assessed with being legally blind in the left eye due to retinal detachment. In September 2009, the Regional Office (RO) determined that there was not enough evidence of record to concede service in the Republic of Vietnam. Specifically, the National Personnel Record Center (NPRC) responded that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. Additionally, the Veteran’s military personnel file and STRs show no assignments or treatment in the Republic of Vietnam, nor does his DD Form 214 reflect such. According to September 2009 Agent Orange examination report, the Veteran reported that he served in Vietnam with the 3rd Battalion 5th Marines from August 1961 to November 1961. He served aboard a carrier, but could not state definitively where he was inland, but stated that he worked in a warehouse and may have handled herbicides. He recalled being in Laos. He was diagnosed with DM II, which he attributed to in-service herbicide agent exposure. He stated that he was unsure if he handled or sprayed Agent Orange, was in a sprayed area, was exposed to other herbicide agents other than Agent Orange, or handled empty 55-gallon drums. He reported that he definitely was not directly sprayed with herbicide agents. He contended that he definitely ate food or drink that could have been sprayed with herbicide agents as he ate Vietnamese food; and waded, bathed, and swam in rivers and streams. An April 2012 letter from Manpower Management Support Branch of the Marine Corps reflects that the Veteran was at Naha Port, White Beach, and Kin Blue Beach in Okinawa, Japan; and at Numuzu Beach in Fuji McNair, Japan, during different periods from March 1962 to October 1962. In December 1962, he went to Subic Bay, Philippines, but embarked that same day on the USS Pickaway. In February 1963, he sailed for White Beach, Okinawa, Japan. In March 1963, he was transferred to the closest Marine Corps activity in the continental United States. In January 2013, the Veteran submitted articles addressing the alleged use of Agent Orange in Okinawa. However, a January 2013 report, “Investigations into Allegations of Herbicide Orange on Okinawa, Japan,” concluded that “after an extensive search of all known and available records, there were no documents found that validated the allegations that Herbicide Orange was involved in any of these events, nor were there records to validate that Herbicide Orange was shipped to or through, unloaded, used, or buried on Okinawa.” This report was generated for the Under Secretary of Defense, the Office of the Deputy. A January 2017 VA memorandum reflects that NPRC records demonstrated that the Veteran was stationed in Japan from March 1962 to September 1962, before arriving in Subic Bay, Philippines, in December 1962, and immediately departing on a ship. He did not return until February 1963. He returned to Okinawa, Japan, in February 1963; and left for San Diego in April 1963. Based on such, the RO concluded that it could not concede exposure to herbicide agents in Vietnam as the Veteran’s DD Form 214 did not show service in Vietnam, and the NPRC responded in August 2009 that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. Additionally, the RO concluded that exposure to herbicide agents in Okinawa could not be conceded. In September 2017, the National Archives provided a copy of a report on the Jungle Drum II exercise in January 1963, which was a bilateral, coordinated Thailand and U.S. exercise in the planning and execution of amphibious and jungle warfare operations. The U.S. landing force was the first Battalion, 9th Marines, reinforced by units of the 3rd Marine Division and First Marine Aircraft Wing. In a September 2017 VA memorandum, the RO concluded that it could not concede exposure to herbicide agents while the Veteran was in Thailand for three weeks to participate in Exercise Jungle Drum II in January 1963. There was no evidence that he was stationed at any Air Force Base or Army Base for that short time span, or that he performed guard duty at any base. As an initial matter, the Board finds that the Veteran has current diagnoses of DM II; peripheral neuropathy of the feet; and a left eye disorder, specifically loss of vision in the left eye, status-post retinal detachments. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, DM II and early-onset peripheral neuropathy are listed as diseases presumptively associated with exposure to herbicide agents. However, the Board considered the Veteran’s contentions that he was exposed to herbicide agents while serving in Vietnam, Okinawa, and Thailand. Unfortunately, despite extensive searches, there is no other corroborating evidence to support these lay contentions. The NPRC found that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. Additionally, despite the Veteran’s contentions of exposure to herbicide agents in Okinawa while loading and unloading supplies, a January 2013 independent report concluded that there was no evidence that herbicide agents were shipped to or through; or unloaded, used, or buried on Okinawa. Furthermore, although the Veteran may have been involved in war exercises in Thailand for a period of three weeks, there is no competent and probative evidence that he was stationed at any Air Force or Army base, or that he performed duties on or near the perimeters of Thailand military bases to include as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise near the perimeter of the base. The Board finds that the overall evidence provided from official sources, to include the STRs, service personnel records, and information provided by the NPRC and other departments and agencies outweigh the lay statements provided by the Veteran. Accordingly, the Board finds that the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) do not apply in this case. Furthermore, there is no credible evidence that the Veteran was actually exposed to herbicide agents during service. The Board acknowledges the Veteran’s contention that he was exposed to herbicide agents because he ate Vietnamese food and waded, bathed, and swam in rivers and streams. However, it is speculative to assume that eating Vietnamese food and bathing and swimming in rivers and streams exposed him to herbicide agents. Additionally, while the Veteran contended that he was exposed to herbicide agents while stationed in Okinawa, he stated at his March 2013 hearing that he did not know what was contained in the barrels; as such, it is mere speculation that the barrels he unloaded contained herbicide agents. Regardless, his contentions of exposure in Okinawa were directly refuted, as discussed above, by the January 2013 report. Moreover, the war exercises in Thailand involved amphibious and jungle warfare operations; the evidence does not suggest that it involved duty along the perimeters of military bases. The Board finds not credible the Veteran’s assertions that he was directly exposed to herbicide agents during service given the speculative nature of his statements. He has offered no probative evidence to support his lay assertion. The Veteran’s statements of such exposure are not sufficient evidence alone to establish that the event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran’s lay statements must be weighed against other evidence of record, including the lack of documentary evidence of the incident. Therefore, the Board finds that there is no competent evidence of record showing that the Veteran was in fact exposed to herbicide agents. Additionally, STRs do not reflect any complaint, treatment, or diagnosis of DM II, neuropathy, or a left eye disorder during service, and the Veteran does not assert otherwise. In fact, the Veteran had no albumin or sugar in his urine, and the clinical evaluations of the lower extremities and involving the left eye at the time of separation were all normal. Because the Veteran is not presumed to have been exposed to herbicide agents during service and there is no credible evidence of actual exposure to herbicide agents or in-service treatment or diagnosis, the Board finds that the element of an in-service event or injury has not been established for any of the claims. Furthermore, the Veteran reports that he was first diagnosed with DM II and neuropathy in 2005, which is approximately 41 years after service. As such, the evidence does not indicate that they manifested within one year from separation of service or resulted in chronic or continuous symptomatology. Additionally, he reported that he was first diagnosed with a left eye disorder in 2004, which is 40 years after service. Although a left eye disorder is not a chronic disease, the absence of medical complaints for four decades is one factor against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Regarding the claim for a left eye disorder, the Veteran also contends that it is secondary to his DM II, which has not been service-connected. Accordingly, service connection on a secondary basis is not warranted as well. The Board does not doubt the sincerity of the Veteran’s contentions; however, based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claims for DM II, neuropathy of both feet, and a left eye disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra.   REASONS FOR REMAND 1. Entitlement to service connection for HTN is remanded. The claim for service connection for HTN is being remanded for a VA examination. Despite the Board’s finding above that presumption of herbicide agent exposure is not demonstrated by the evidence, the Veteran’s STRs reflect that the Veteran had a blood pressure reading of 130/70 at his June 1964 separation examination, which is considered to be hypertensive. As such, a VA examination is required in order to determine whether the Veteran’s current diagnosis of HTN had an onset during service. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the nature and etiology of his claimed HTN. All tests and studies deemed necessary shall be performed. The examiner should be provided with the Veteran’s claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *STRs including the June 1964 separation examination report reflecting a blood pressure reading of 130/70. *A March 2008 VA treatment record reflecting an assessment of HTN that needed improvement. *The Veteran’s July 2009 claims application, in which he stated that his HTN began in 2004. After reviewing the claims file in its entirety, the examiner is asked to provide an opinion addressing the following: Whether the Veteran’s claimed HTN at least as likely as not (50 percent probability or greater) had its onset during active duty service or is otherwise related to it. *The examiner should address the Veteran’s blood pressure reading at separation in June 1964.* A complete rationale should be provided for any opinion provided. 2. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee