Citation Nr: 18157176 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-19 262 DATE: December 12, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for ischemic heart disease (IHD), to include as due to herbicide agent exposure, is denied. Entitlement to service connection for lung cancer, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for PTSD, recharacterized as acquired psychological disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s diabetes mellitus, type II manifested to a compensable degree within the applicable presumptive period; that continuity of symptomatology is established; or that it is otherwise related to an in-service injury, event, or disease. 2. The weight of the evidence is against a finding that the Veteran’s IHD manifested to a compensable degree within the applicable presumptive period; that continuity of symptomatology is established; or that it is otherwise related to an in-service injury, event, or disease. 3. The weight of the evidence is against a finding that the Veteran’s lung cancer manifested to a compensable degree within the applicable presumptive period; that continuity of symptomatology is established; or that it is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 2. The criteria for service connection for IHD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 3. The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to October 1971, which was honorable for VA purposes, and from June 1973 to June 1974 which was not honorable for VA purposes. These matters were previously before the Board of Veterans’ Appeals (Board) from separate rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2015 rating decision, the RO denied entitlement to service connection for diabetes mellitus, IHD, and PTSD. In an April 2016 rating decision, the RO denied entitlement to service connection for lung cancer, and confirmed and continued the denial of service connection for PTSD. In February 2016, a Decision Review Officer Informal Conference was held at the RO with regard to the diabetes mellitus and IHD issues. In February 2018, the Veteran and spouse testified at a Board hearing before the undersigned Judge. In May 2018, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. After accomplishing the requested actions, the AOJ continued the denial of the claim as reflected in the September 2018 supplemental statement of the case. The matter is again before the Board for further appellate consideration. The AOJ has substantially complied with the remand orders pertaining to obtaining records from Salem Vet Center. Those records were found to be nonexistent or unavailable (9/6/2018 VA 21-0820 Report of General Information). Pursuant to the remand order, treatment records from July 22, 2016 were associated with the electronic record and JSRCC was queried regarding herbicide agent use in conjunction with the Veteran’s unit. A psychiatric examination was obtained, and is discussed in the remand section. The Board notes in November 2018, the VA sent the Veteran a notice scheduling a hearing for January 2019 (11/29/2018 Notification Letter). This notice was provided since the hearing held in February 2018, which addressed all issues included in the April 2016 Form 9 and August 2016 Form 9. Since the remand order and issuance of a supplemental statement of the case, correspondence from the Veteran’s representative has been received (9/24/2018 VA 21-4138 Statement in support of Claim and 9/24/2018 Correspondence). That correspondence does not request a hearing. Review of the record does not reveal any other request for a second hearing from either the Veteran or his representative. Accordingly, the Board has determined that the November 2018 notice was sent in error and will proceed with a decision, particularly in light of this matter being advanced on the docket due to the Veteran’s current health condition. Service Connection The Veteran asserts that his claims of service connection of diabetes mellitus, IHD, and lung cancer, result from his exposure to Agent Orange while serving in Korea, in proximity to the Korean Demilitarized Zone (DMZ) between 1970-1971 (07/14/2014 VA 21-4138 Statement in Support of Claim). If a Veteran was exposed to an herbicide agent during active service, specific diseases provided at 38 C.F.R. § 3.309 (e) shall be service-connected 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 term "herbicide agent" means a chemical in an herbicide, used in support of the United States and allied military operations during the Vietnam era 38 C.F.R. 3.307(a)(6). In certain circumstances, a Veteran may have been exposed to herbicides while serving in Korea. Specifically, a Veteran who, during active military, naval, or air service, served 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 demilitarized zone (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 serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924 - 47,928 (Aug. 10, 2012). The diseases listed at 38 C.F.R. 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. In this case, the Veteran has been diagnosed with diseases considered at 38 C.F.R. § 3.309 (e), specifically, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) (the Veteran reported having been diagnosed in 1984, 5/11/2015 CAPRI, p. 96); respiratory cancers (cancer of the lung, bronchus, larynx or trachea) (the Veteran was diagnosed with lung cancer in April 2015, 5/11/2015 CAPRI, p. 6); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) (the Veteran was diagnosed with IHD in May 2004, 8/3/2014 Medical Treatment Record Non-Government Facility, p. 12). The Veteran’s DD Form 214 reflects that he had active service in the United States Army which included 1 year, 1 month, and 19 days of foreign service in USARPAC, from March 1970 through October 1971. His military occupational specialty (MOS) was “powerman.” His unit was HNB 2nd Bn (HAWK) 71st Arty, Eighth Army. In an October 2013 submission, the Veteran asserted that from August 1970 to December 1970 he was stationed in Uijeongbu, Korea (Camp Ross), and from October 1970 to October 1971 he was stationed in Uijeongbu, Dongducheon, Seoul, Korea (10/07/2013 VA 21-0781 Statement in Support of Claim for PTSD). In another submission, the Veteran asserted that he was stationed at Camp Rossi, Yongjugol, Korea from September 12, 1970 to October 22, 1971 (06/09/2015 VA 21-0781, Statement in Support of Claim for PTSD). During his February 2018 hearing, the Veteran testified that when he first arrived in Korea, he was stationed in Uijeongbu, an aviation unit, and then ended up in Camp Red Cloud (2/09/2018 Hearing Testimony, p. 4). The Veteran testified that he “did sabotage” accessing tunnels at the DMZ (2/09/2018 Hearing Testimony, p. 4). The Veteran’s testimony is not supported by the findings of the Joint Services Records Research Center (JSRRC). In April 2016, JSRRC stated they were unable to obtain a 1970 unit history submitted by the 2nd Battalion, 71st Artillery. However, the 1971 and 1972 unit history submitted by the 2nd Battalion, 71st Artillery, and the 1970-1971 8th United States Army Chronologies were located. The records document the unit was located at Camp Irwin, South Korea. The records do not document the use, storage, spraying or transportation of tactical herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by unit members along the DMZ to include members being sent to the DMZ to identify Korean positions (4/19/2016 DPRIS Response, p. 1). The August 2018 response from JSRRC elaborates, “The history documents Company B (Co B), 2ndAvn Bn was located at Stanton Army Airfield, South Korea. The 2ndAvn Bn was tasked in 1970 to provide the division with aircraft to be used in command and control, air mobility training, reconnaissance and administrative flights. The types of missions varied from short haul flights in the Division Area, to longer flights to such places as Taegu and P’yong Taek, to very demanding and difficult flights into the vicinity of the DMZ. However, the records do not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange” (8/27/2018 Email Correspondence, p. 2). Before the amendment of 38 C.F.R. 3.307(a)(6)(iv), which became effective February 24, 2011, the VA conceded exposure to herbicides on a direct basis for Veterans who served between April 1968 and July 1969 in one of the groups listed under M21-1, Part IV, Subpart ii, 1.H.4.b. The revision effective February 24, 2011 extended the timeframe for presumed exposure to August 31, 1971, but again only for specified units. The Veteran’s unit is not found in that listing, indicating that he did not serve in an area in which herbicides are known to have been applied. At his hearing, the Veteran’s representative presented a May 2017 submission from a retired service member, P.M.S., who asserted that he served in the U.S. Army in South Korea from February 1969 to May 1972. P.M.S. recalled that Camp Irwin was the administrative area for batteries Bravo and Charlie, 2nd Bn (HAWK) 71st ADA, 38th Brigade (AD). He indicated that those assigned to any battalion in the 38th Brigade (AD) would have the bulk of their service at firing battery locations in the most elevated terrain available for the deployment of their weapon systems: the HAWK and Hercules air defense missiles. P.M.S. stated that often soldiers from various batteries in the northern sector were temporarily assigned to Camp Red Cloud where the battalion headquarters was co-located with HQ I Corps (GP). P.M.S. stated that Battery A of 2nd Bn (HAWK) 71st AD was physically closest to the DMZ but others throughout the northern sector were close as well. P.M.S. asserted that a defoliant compound was used to keep the grass low and fields clear and open. P.M.S. asserted that soldiers on those tactical sites were widely exposed to the spraying (2/9/2018 Buddy/Lay Statement, p. 1-2). The Veteran has also provided internet pages regarding Camp Irwin supporting that from 1955 through 1970, Camp Irwin served as home to the 24th Medical BN 24th Inf Div, 15th Medical BN 1st Cav Div and the 2nd Medical BN 2nd Inf Div. From 1970 until it closed, Camp Irwin served as the ADMIN area for elements of the 2nd BN 71st ADA Brigade who manned air defense site 36 east of Pobwon-ni (2/9/2018 Correspondence, p. 2). The Board finds the above information to be of little probative weight, as it is generic in nature and not specific to the Veteran’s service. For example, P.M.S. did not serve directly with the Veteran and did not attest to his actual presence in the DMZ. Moreover, his letter did not sufficiently explain the basis for his belief that the Veteran’s specific unit would have been present at the DMZ. In further support of his claim, the Veteran presented a September 2015 letter from R.J.M., MD, (10/7/2015 Medical Treatment Record – Government Facility, p. 1-3) providing in reference to the Veteran’s diagnosis: “this diagnosis has a substantively direct association with Agent Orange (AO) exposure and there is literature to support the link of dioxins similar to the contaminants associated with AO in respiratory cancers.” The letter includes journal references in further support. While the Board acknowledges that the type of diseases, including lung cancer, that have inflicted the Veteran are those also often corresponding to herbicide agent exposure, the Board finds that the weight of the probative evidence of record is against finding that the Veteran served in an area where herbicide agents were known to have been applied. As such, the Veteran is not presumed to have been exposed to herbicides during service, and, to the extent that he has diagnoses of any of the presumptive disorders, he is not entitled to presumptive service connection based on herbicide exposure. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). 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 current disability and an in-service precipitating disease, injury or event. 38 U.S.C. §§ 1110, 1131; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing service connection for certain chronic disabilities listed in 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). In this case, the record is silent for in-service diagnoses of or treatment for diabetes mellitus, type II, IHD, or lung cancer. The record indicates the Veteran was diagnosed with diabetes mellitus, type II potentially as early as 1984 (5/11/2015 CAPRI, p. 96), a significant number of years post-service. The Veteran was diagnosed with lung cancer in April 2015 (5/11/2015 CAPRI, p. 6) and IHD in May 2004 (8/3/2014 Medical Treatment Record Non-Government Facility, p. 12). The dates of initial diagnosis are too far removed from the Veteran’s dates of service to establish continuity of symptomatology, and the Veteran has not otherwise contended any such continuity of symptomatology. Moreover, the weight of the evidence is against a factual finding of in-service herbicide exposure on a nonpresumptive basis and no medical evidence links the current diagnoses to any other aspect of service. Accordingly, in the absence of any in-service findings of diabetes mellitus, IHD, or lung cancer, and in the absence of a link between the Veteran’s current diagnoses of these diseases to his service, the Board finds that a preponderance of the evidence weighs against the claim. Accordingly, the claims of service connection for diabetes mellitus, IHD, and lung cancer are denied. REASONS FOR REMAND The Veteran was diagnosed with PTSD in 2013 (5/1/2015 CAPRI, p. 249). He has asserted that his current diagnosis of PTSD is a result of traumatic military experiences (5/1/2015 CAPRI, p. 70), specifically having had to shoot and kill intruders when he served as a guard at a secure compound in Korea. He was also exposed to a live grenade that was thrown into his Commanding Officer’s office. He also indicated that he participated in sabotage, such as pouring chemicals into gas tanks (9/6/2018 CAPRI, p. 2-4). The Board’s May 2018 remand ordered a psychiatric examination to identify all current psychiatric diagnoses, provide an opinion with rationale as to whether the Veteran currently suffers from PTSD related to his fear of hostile military or terrorist activity while on active duty, and considering all medical records and history. The September 2018 examiner opined that the Veteran’s PTSD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale for his opinion was that the Veteran’s in-service stressors “are not consistent with this psychologist's knowledge of the circumstances in South Korea at the time.” The examiner did not address the Veteran’s June 1970 in-service medical history of anxiety, nervousness and sleep disturbances as noted in his service treatment record (3/26/2014 STR-Medical, p. 14) or lay statements, to include that from the Veteran’s spouse (4/3/2014 Buddy/Lay Statement). As such, the medical opinion is inadequate. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from the September 2018 examiner, or a comparably qualified clinician, that validates or confirms the Veteran’s June 1970 in-service history of anxiety, nervousness and sleep disturbances. The examiner should address whether any of the current diagnoses are at least as likely as not a continuation of the symptoms experienced at the time of service. Alternatively, if the in-service symptoms are deemed to be solely a manifestation of preexisting condition, did active service cause such condition to be subjected to superimposed injury or disease now diagnosed as an acquired psychiatric disorder? The examiner should consider all relevant evidence, including lay statements of behavioral changes during service and continuous problems after service, and provide a comprehensive rationale for any opinion offered. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. The examiner is reminded that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel