Citation Nr: 18159266 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-58 467 DATE: December 19, 2018 ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, is denied. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran was exposed to herbicide agents during his active duty service. 2. The Veteran’s ischemic heart disease was not manifested in service, and the preponderance of the evidence is against a finding that his disability is otherwise etiologically related to his active duty service, to include exposure to herbicide agents. 3. The Veteran’s diabetes mellitus was not manifested in service, or within one year of separation, and the preponderance of the evidence is against a finding that his disability is otherwise etiologically related to his active duty service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to December 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that if a Veteran was exposed to herbicides during service, and meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A presumption of exposure to herbicide agents exists for all veterans 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 (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran contends that service connection is warranted for his diabetes mellitus and ischemic heart disease, as they were both incurred due to herbicide agent exposure during his active duty service in Korea. Specifically, the Veteran contends that he was exposed to Agent Orange while stationed at Camp Casey, where he made multiple trips to the DMZ to perform personnel audits. 1. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure. Service treatment records (STRs) are silent for any complaints, symptoms, treatments or diagnosis of heart disease; and the Veteran has not provided any statements regarding any treatments, symptoms, or diagnosis of his current heart condition. However, in a November 2012 private treatment record, it was noted that the Veteran underwent aortic valve replacement surgery in 2011. Therefore, based on the noted surgery, the Board finds that the Veteran has a current heart disability. Ischemic heart disease is a disease presumptively associated with exposure to certain herbicide agents, pursuant to 38 C.F.R. § 3.309(e). Therefore, if the evidence establishes that the Veteran served with a unit recognized by the DOD as operating in or near the Korean DMZ where herbicides are known to have been applied, service connection is warranted for the Veteran’s ischemic heart disease on a presumptive basis. After review of the evidence of record, the Board finds that the evidence does not establish that the Veteran was exposed to herbicide agents during active duty service. VA’s Adjudication Procedures Manuel (M-21-1) verifies that some units of the 3rd Brigade of the 7th Infantry Division are recognized by the DOD as operating in the Korean DMZ during the qualified period. See M21-1, Part IV, Subchapter ii, Chapter 1, Section H, Paragraph 4(b). However, the Veteran’s military personnel records reflect that he served in the 7th Administration Company, 7th Infantry Division in 1968, which is not one of the listed units recognized by the DOD. Additionally, while the Veteran contends that he regularly visited the DMZ to conduct personnel audits, service department records do not indicate that the Veteran was ever present in or near the DMZ. However, to support his claim, the Veteran submitted a lay statement from a fellow servicemember, A.L. A.L. stated that he distinctly remembers the Veteran and an officer making trips to the DMZ to compile a secret weapons report; and he remembers that Camp Casey was being sprayed with some chemical in the Spring/Summer of 1968 that resembled the gas chamber in basic training. See Buddy/Lay Statement, October 2015. In light of the Veteran’s and A.L.’s contentions, the Veteran’s claim was developed by the VA in accordance with the procedures of the M21-1, applying to claims involving herbicide exposure in or near the Korean DMZ. A request was sent to the Joint Service Records Research Center (JSRRC) to determine whether the Veteran was exposed to herbicide agents during his period of service in Korea; however, in September 2013, the JSRRC submitted a formal finding of a lack of information required to verify exposure to herbicide agents, such as Agent Orange during service. The JSRRC specifically noted that they reviewed the Veteran’s contentions, personnel files, and service treatment records, and all were silent for any activities that would expose him to herbicides. Subsequently, in June 2016, another request was sent to JSRRC. In the interim, the Defense Personnel Records Information Retrieval System (DPRIS) issued a response stating that “[w]e coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. However, they were unable to locate 1967 unit records submitted by the 7th Administration Company. We reviewed the 1968 unit history submitted by the 7th Administration Company and the Headquarters, Headquarters Company and Band Support Command, 7th Infantry Division, the higher headquarters of the 7th Administration Company. The history documents that the 7th Administration Company was located at Camp Casey, Tongduchon-ni, South Korea. We also reviewed the 1967 Eighth US Army Chronology. However, the records do not document the use, storage, spraying, or transportation of herbicides to include Agent Orange. In addition, the records do not mention or document any specific duties performed by the unit members along the Demilitarized Zone.” See DPRIS Response, July 2016. Consequently, a formal finding of lack of verification was requested to be issued in August 2016. The Board has considered the Veteran’s statements and the lay statements of A.L. that the Veteran was present inside the Korean DMZ and was exposed to herbicide agents, but also notes that these recollections are from more than 40 years after the events in question; thus, the Board finds that these statements are outweighed by the objective evidence establishing that the Veteran was not present in or near the Korean DMZ, including information and records received from the service department, JSRRC, and DPRIS. As the evidence weighs against a finding of actual exposure to an herbicide agent, service connection for any disability due to herbicide exposure is not possible. The Board has considered whether there is any other evidence of a link between the Veteran’s heart disease and his active duty service. However, the record reflects that the Veteran has not alleged any other in-service events, injuries or diseases to account for his disability, and his service records are silent for any findings or symptoms. There is also no lay or medical evidence of the claimed disability until decades after the Veteran’s separation. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection, presumptively or otherwise. Accordingly, the Veteran’s claim for service connection for ischemic heart disease is denied. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. Service treatment records (STRs) are silent for any complaints, symptoms, treatments or diagnosis of diabetes mellitus; however, the Veteran’s private treatment records reflect treatment and diagnosis of diabetes mellitus, Type II, uncontrolled, which was noted to have been first diagnosed in 1998. Type 2 diabetes (diabetes mellitus) is a disease presumptively associated with exposure to certain herbicide agents, pursuant to 38 C.F.R. § 3.309(e). Therefore, if the evidence establishes that the Veteran served with a unit recognized by the DOD as operating in or near the Korean DMZ where herbicides are known to have been applied, service connection is warranted for the Veteran’s diabetes mellitus on a presumptive basis. After review of the evidence of record, the Board finds that the evidence does not establish that the Veteran was exposed to herbicide agents during active duty service. VA’s Adjudication Procedures Manuel (M-21-1) verifies that some units of the 3rd Brigade of the 7th Infantry Division are recognized by the DOD as operating in the Korean DMZ during the qualified period. See M21-1, Part IV, Subchapter ii, Chapter 1, Section H, Paragraph 4(b). However, the Veteran’s military personnel records reflect that he served in the 7th Administration Company, 7th Infantry Division in 1968, which is not one of the listed units recognized by the DOD. Additionally, while the Veteran contends that he regularly visited the DMZ to conduct personnel audits, service department records do not indicate that the Veteran was ever present in or near the DMZ. However, to support his claim, the Veteran submitted a lay statement from a fellow servicemember, A.L. A.L. stated that he distinctly remembers the Veteran and an officer making trips to the DMZ to compile a secret weapons report; and he remembers that Camp Casey was being sprayed with some chemical in the Spring/Summer of 1968 that resembled the gas chamber in basic training. See Buddy/Lay Statement, October 2015. In light of the Veteran’s and A.L.’s contentions, the Veteran’s claim was developed by the VA in accordance with the procedures of the M21-1, applying to claims involving herbicide exposure in or near the Korean DMZ. A request was sent to the Joint Service Records Research Center (JSRRC) to determine whether the Veteran was exposed to herbicide agents during his period of service in Korea; however, in September 2013, the JSRRC submitted a formal finding of a lack of information required to verify exposure to herbicide agents, such as Agent Orange during service. The JSRRC specifically noted that they reviewed the Veteran’s contentions, personnel files, and service treatment records, and all were silent for any activities that would expose him to herbicides. Subsequently, in June 2016, another request was sent to JSRRC. In the interim, the Defense Personnel Records Information Retrieval System (DPRIS) issued a response stating that “[w]e coordinated our research with the National Archives and Records Administration (NARA) in College Park, Maryland. However, they were unable to locate 1967 unit records submitted by the 7th Administration Company. We reviewed the 1968 unit history submitted by the 7th Administration Company and the Headquarters, Headquarters Company and Band Support Command, 7th Infantry Division, the higher headquarters of the 7th Administration Company. The history documents that the 7th Administration Company was located at Camp Casey, Tongduchon-ni, South Korea. We also reviewed the 1967 Eighth US Army Chronology. However, the records do not document the use, storage, spraying, or transportation of herbicides to include Agent Orange. In addition, the records do not mention or document any specific duties performed by the unit members along the Demilitarized Zone.” See DPRIS Response, July 2016. Consequently, another formal finding for lack of verification was requested to be issued in August 2016. The Board has considered the Veteran’s statements and the lay statements of A.L. that the Veteran was present inside the Korean DMZ and was exposed to herbicide agents, but also notes that these recollections are from more than 40 years after the events in question; thus, the Board finds that these statements are outweighed by the objective evidence establishing that the Veteran was not present in or near the Korean DMZ, including information and records received from the service department, JSRRC, and DPRIS. As the evidence weighs against a finding of actual exposure to an herbicide agent, service connection for any disability due to herbicide exposure is not possible. However, service connection is still possible for the Veteran’s diabetes mellitus as a chronic disease, pursuant to 38 C.F.R. § 3.307(a). As discussed above, certain chronic diseases, such as diabetes mellitus, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The medical evidence of record establishes the treatment of diabetes mellitus; however, the record shows that this condition was first diagnosed in 1998, which is 30 years after the Veteran’s separation from active duty service. Therefore, since the Veteran’s diabetes mellitus did not incur until decades after service, presumptive service connection for this disability as a chronic disease is not warranted. The Board has considered whether there is any other evidence of a link between the Veteran’s diabetes mellitus and his active duty service. However, the record reflects that the Veteran has not alleged any other in-service events, injuries or diseases to account for his disability, and his service records are silent for any findings or symptoms. There is also no lay or medical evidence of the claimed disability until decades after the Veteran’s separation. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection, presumptively or otherwise. Accordingly, the Veteran’s claim for service connection for diabetes mellitus is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel