Citation Nr: 1807046	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO. 11-22 503	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood.

2. Entitlement to service connection for a heart disability, to include as due to exposure to herbicides.

3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides.

4. Entitlement to service connection for a diabetes mellitus, type II, to include as due to exposure to herbicides.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1974 to March 1978.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In a June 2013 Travel Board hearing, the Veteran provided testimony before a Veterans Law Judge. The Veterans Law Judge who held the hearing is no longer employed at the Board. Thus, in April 2016, the Veteran was informed of this fact and given the opportunity to request a new hearing. In May 2016, the Veteran informed the Board that he did not wish to appear for another Board hearing and requested the Board consider the appeal based on the evidence of record. Thus, there is no hearing request pending at this time and the Board will continue with adjudication of the Veteran's appeal.

In April 2014 and most recently in May 2017, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the claims for entitlement to service connection for (1) an acquired psychiatric disorder; (2) hypertension; and (3) a heart disability on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999).

The issue of entitlement to service connection for a diabetes mellitus, type II, to include as due to exposure to herbicides is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have a current diagnosis of PTSD, under the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV or 5.

2. The Veteran has a diagnosed acquired psychiatric disorder under DSM-5 of an adjustment disorder with mixed anxiety and depressed mood.

3. The Veteran's acquired psychiatric disorder was not incurred in, caused by or otherwise related to active duty service.

4. The Veteran did not serve in Vietnam and is not presumed to have been exposed to herbicides while serving in Thailand.

5. The Veteran's heart disability was not incurred during active duty service or within one year of separation from service and is not otherwise related to active duty service, to include exposure to herbicides.

6. The Veteran's hypertension did not have its onset during active duty service or within one year of separation from service and is not otherwise related to active duty service, to include exposure to herbicides.


CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.9, 4.125 (2017).

2. The criteria for service connection for a heart disability, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

3. The criteria for service connection for hypertension, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) evidence of a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Cardiovascular-renal disease, including hypertension, are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 

If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). 

"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); see Haas v. Nicholson, 20 Vet. App. 257 (2006). In order to establish qualifying "service in the Republic of Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. 

Despite the above, the United Stated Court of Appeals for the Federal Circuit held that 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 a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed.Cir.1994). Therefore, the Board must not only determine whether a veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether his current disability is the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(d). This determination may include actual exposure to herbicides as opposed to presumed exposure.

In deciding an 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 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Acquired Psychiatric Disorder to Include PTSD

Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). 

The Veteran asserts that service connection for PTSD is warranted because it is caused by or otherwise related to his military service. During the June 2013 Travel Board hearing, the Veteran testified that while at Sawyer Air Force Base in Michigan, a B-52 went down and he was part of the recovery mission which included recovery of parts of the plane and human remains. The Veteran stated that the still thinks and has nightmares about it. He contended that he was treated for anxiety, depression, and "PTSD signs." The Veteran testified that he was declared with "total PTSD" and elaborated that there are four symptoms of PTSD and that he has two of them at the time of the hearing and was still in treatment. He also testified that he was diagnosed with depression and anxiety.

In a May 2010 statement, the Veteran described a stressful incident in U-Tapao, Thailand from 1976. The Veteran reported that he was sent on a temporary duty assignment to Thailand in a hostile environment which required him to carry weapons and be "on alert 24/7." He elaborated that one night a high alert was called informing that the enemy ghost had made entrance to the bomb dump; gunfire was heard; and that he was held up in a building until it was safe to resume duties. The Veteran stated that following the incident, he still had to load and unload 500 pound bombs that were brought from Vietnam with his bare hands. He stated that since returning to the States from his military duties, he has been suspicious of the Government and consumed with all that happened during the war.

In an February 2010 Formal Finding, the RO indicated that it had been determined that the information required to corroborate the stressful events described by the Veteran was insufficient to allow meaningful research of Marine Corps or National Archive and Records Administration (NARA) records. Therefore, the Board finds that the Veteran's claimed in service stressors are unverified.

The preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD, which conforms to DSM-5 (or even DSM-IV), as specifically required for service-connection for PTSD. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran was afforded a VA examination in June 2011. The examiner indicated that based on the signs, symptoms, occupational and social functioning described, the Veteran does not meet the DSM-IV criteria for PTSD. 

The Veteran was afforded another VA examination in June 2014. The examiner determined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria based on her evaluation. She noted that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria.

The Veteran reported the two stressors, the Thailand "bomb dump" incident and the B-52 accident at Sawyer Air Force Base, Michigan, to both the June 2011 and June 2014 VA examiners. Along with finding that the Veteran did not meet the DSM criteria for PTSD, the examiners administered the MMPI-2 and MMPI-2-RF tests, respectfully. These tests are empirical, validated measure of response set, and of a broad range of symptoms of mental disorder. Both tests revealed that the Veteran read and understood the items, and that he responded in a deliberate, consistent way. In June 2014, he was found to have over-reported symptoms of a broad range of psychological difficulties portraying himself as functioning far worse than an objective appraisal wound indicate. The Veteran was also found to have reported non-credible cognitive complaints, and over reported memory complaints. The examiners indicated that the results revealed that the Veteran was likely to be exaggerating his report of symptoms and problems in the context of the compensation and pension examinations. Therefore, the examiners found that the results were not a valid measure of his difficulties. Specifically, the June 2011 examiner noted that the Veteran produced an invalid profile with indication of exaggerated symptoms and that this style of responding was consistent with clinical impression gathered in the interview that the Veteran was trying to match his responses to those expected of veterans with a diagnosis of PTSD.

Nonetheless, the evidence shows that the Veteran has other acquired psychiatric disorders. The June 2011 examiner indicated that the Veteran's depressive symptoms were not severe enough to meet DSM-IV criteria for major depression, however, met criteria for adjustment disorder with depressed mood. The examiner stated that there did not appear to be multiple mental disorders. The June 2014 examiner found that the Veteran had mild symptoms of anxiety and depression and diagnosed the Veteran with other specified anxiety disorder and other specified depressive disorder. These diagnoses are supported by VA medical records including a January 2011 record reflecting diagnosis of adjustment disorder with depressed mood and April 2016 and July 2017 records that show a DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood.

The Board has also reviewed service treatment records and personnel records for any indication that an acquired psychiatric disorder was incurred in service or otherwise caused by service and finds the preponderance of the evidence is against such relationship. The Veteran's March 1978 service separation examination included a normal clinical evaluation for the Veteran's psychiatric state. Moreover, in the accompanying Report of Medical History, the Veteran denied "frequent trouble sleeping;" "depression or excessive worry;" "loss of memory or amnesia;" and "nervous trouble of any sort." The Veteran also answered "no" when asked if he had ever been treated for a mental condition. The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service. The Board finds that an acquired psychiatric disability did not have its onset in service.

Post service medical records attribute the Veteran's acquired psychiatric disorders to circumstances unrelated to service. For example, the June 2011 VA examiner indicated that the Veteran appeared to be in some distress which she believed to be mostly related to depressive symptoms which began in the years since the Veteran's heart attack and/or loss of his job. She noted that the Veteran described the problems he had been having since his 2004 heart attack, including concerns of having another one and worry about this health. The Veteran explained to the examiner that his older brother died of an aneurysm at age 37 and that both his parents died early of heart disease (mother at 52 and father at 60). The Veteran reported that after his heart attack, he started taking things easier at work and was laid off two years prior to the examination. He stated that for the previous five to six years, he had been depressed; did not want to do anything; stayed at home; avoided people, talked less with his wife and daughters and stated that this was in context of his job changes, new house and financial problems. The June 2011 VA examiner explained that there is no indication of mental health problems while the Veteran was in the military. The Veteran was first seen in mental health in January 2010 when he complained of depressive symptoms associated with financial problems due to his job loss, marital issues, and concerns about having another heart attack. The examiner stated that the Veteran's current depressive symptoms did not appear to be related to his military service and the mental health symptoms appear to have begun after he experienced a heart attack and few years later lost his job.

The June 2014 VA examiner stated that the Veteran's current mild symptoms of anxiety and depression are related to his health problems, early retirement, family stressors, and limited social interaction and activity.

VA medical records support the findings from the June 2011 and June 2014 VA examiners. An April 2015 VA mental health counseling note reveals that the Veteran was continuing to adjust to the death of his sister. The Veteran was mildly depressed over his spouse's lack of timely follow-up to the couple's house payment and the bank reportedly initiating foreclosure proceedings again. The Veteran was noted to adaptively cope with recurrent reminders about his sister when they arose during the day/week. In a March 2017 VA mental health note, the Veteran was noted to have stated "I'm tired of being over worked." It was explained that the Veteran's wife was diagnosed with lung cancer and had surgery. The Veteran was tired of the care giving and responsibilities and was also afraid that his wife's cancer may return. 

The Board finds that the preponderance of the evidence is against a finding that the Veteran's current acquired psychiatric disorder is caused by or otherwise related to service. VA examiners from June 2011 and June 2014 have attributed the Veteran's adjustment disorder with depressed mood to health problems, early retirement/financial concerns, and other family stressors as described above. 

Further, the June 2014 VA examiner indicated that the Veteran over-reported symptoms of a broad range of psychological difficulties, portraying himself as functioning far worse than an objective appraisal would indicate. The examiner explained that the Veteran reported non-credible cognitive complaints and over reported memory complaints. The examiner stated that these results indicate that the Veteran is likely exaggerating his report of symptoms and problems in the context of this compensation and pension examination. The examiner stated that the test results were indicative of malingering, the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives, in this case, obtaining financial compensation. The VA examination reports and findings provide competent and probative evidence that weigh against the Veteran's claim because the VA examiners reviewed the claims file, interviewed the Veteran, performed psychiatric examinations, and provided findings and conclusions supported by well-reasoned rationale.

The Veteran has asserted that his acquired psychiatric disorder is related to service; however the Veteran has not offered probative and competent evidence establishing a nexus between the Veteran's acquired psychiatric disorder and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). A diagnosis of an acquired psychiatric disorder requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his acquired psychiatric disorder, the Board finds that the Veteran's acquired psychiatric disorder was not incurred in-service and is not otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for an acquired psychiatric disorder, to include PTSD, is not warranted.

The preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, to include PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App.at 55.

Heart Disability and Hypertension

The Veteran contends that service connection for a heart disability and hypertension are warranted because they were caused by or otherwise related to service, to include exposure to herbicides in Thailand, specifically Agent Orange. 

The Veteran currently has a heart disability including residuals of coronary artery disease (CAD) as reflected in a September 2017 VA cardiology outpatient clinic note. The VA medical professional listed a past medical history of CAD status post 2004 STEMI (segment elevation myocardial infarction) with ventricular fibrillation arrest status post angiojet thrombectomy of proximal left anterior descending artery (LAD) blockage with percutaneous coronary intervention (PCI) to LAD; Thrombolysis in Myocardial Ischemia Trial III flow, status post PCI to left circumflex coronary artery (March 2004) with improvement in Left Ventricular Ejection Fraction (LVEF) to 50-55%, last coronary angiogram (September 2010) with patent LAD; and left circumflex coronary artery stents with mild right coronary artery disease.

The Veteran was diagnosed and is currently treated for hypertension as shown in September 2017 VA cardiology outpatient clinic note. It should be noted that Note (1) to 38 C.F.R. § 4.104, DC 7101 states hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of 38 C.F.R. § 4.104, the term hypertension means that the diastolic blood pressure is predominately 90mm. or greater and isolated systolic hypertension means that the systolic blood pressure is predominately 160mm. or greater with a diastolic blood pressure of less than 90mm.

The Veteran does not contend that he served in or visited Vietnam during service. In an October 2009 VA Veteran's Application for Compensation and/or Pension (VA Form 21-526); the Veteran checked "no" when asked if he served in Vietnam. While all veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the Veteran can also claim that he was entitled to the presumption of herbicide exposure because he was stationed in Thailand. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307.

VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1. The claims file contains a memorandum for the record regarding general herbicide exposure in Thailand during the Vietnam Era from the Veterans Benefits Administration (VBA) in Washington, D.C. VBA reviewed several reports, including the Project CHECO Southeast Asia Report: Base Defense in Thailand, in determining whether veterans who served in Thailand were exposed to herbicides. VBA noted that the Department of Defense (DoD) list of sites where tactical herbicides were used, tested, and stored revealed that limited testing of tactical herbicides were only conducted in Thailand from April 2, 1964 through September 8, 1964, near Pranburi, Thailand. The CHECO Report did not report the use of tactical herbicides on allied bases in Thailand, but it indicated sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Thus, the memorandum noted, if a veteran's MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. The memorandum also noted that there were no records to show that the same tactical herbicides used in Vietnam were used in Thailand. The memorandum further indicated that there is no presumption of "secondary exposure" to herbicide agents based on being near or working on aircraft that flew over Vietnam or handing of equipment that was once used in Vietnam. 

The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases between February 28, 1961 and May 7, 1975 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 exposure should be acknowledged on a facts-found or direct basis. VBA Manual M21-1, IV.ii.1.H.5.b.

The Veteran asserted that he was exposed to Agent Orange in Thailand in his October 2009 VA Form 21-526. The Veteran testified during the June 2013 Travel Board hearing that he was in Thailand in 1976 and actually saw containers that were marked "herbicides" and was around the foliage on the outer limits. He elaborated that he was in U-Tapao, Thailand; on the perimeter in the munitions area as a munitions maintenance specialist. During a June 2011 VA examination for PTSD, the Veteran indicated that he was stationed in Thailand for 3 months in 1976/1977. In a May 2013 VA medical record, the Veteran reported that he spent most of his tour in Thailand while on active duty and believed that he was exposed to Agent Orange. 

In a May 2017 statement, the Veteran reported that he was a munitions maintenance specialist and contended that the munitions at U-Tapao Air Force Base were stored at the base perimeter which was close to the location where Agent Orange was used to defoliate shrubbery. The Veteran asserted that prior decisions stated that Agent Orange was only used in 1964 and that he believed this was an inaccurate statement. The Veteran attached an article about herbicide exposure at U-Tapao in support of his contentions. The article, Matthew Hill, What Thailand Bases Does VA Admit Were Exposed to Agent Orange, Hill & Ponton (Sept. 22, 2014), https://www.hillandponton.corn/thai1and-bases-va-admit-exposed-agent-orange, stated that VA concedes U.S. Air Force Veterans who served at Royal Thai Air Force (RTAF) bases including U-Tapao, near the air base perimeter anytime between February 28, 1961 and May 7, 1975 may have been exposed to herbicides. The Board finds this statement from the article to accurate as it is similar to the previously cited VBA Manual M21-1, IV.ii.1.H.5.b. 

That fact notwithstanding, however, the Board finds that a presumption of exposure to herbicides based on service in Thailand is not applicable to the Veteran. The Veteran has not asserted that he served or visited Thailand between February 28, 1961 and May 7, 1975. The Veteran repeatedly indicated that he served in Thailand in 1976/1977 which is after the Vietnam Era and the applicable dates of service mentioned above. Further, military personnel records reflect that the Veteran was stationed at Holloman Air Force Base, New Mexico between March 1974 and July 1975; and Clark Air Force Base between July 1975 and March 1977. Military personnel records also indicate overseas history in Thailand with a date departed of April 2, 1976 for 6 days. Therefore, the Board finds that the preponderance of the evidence is against an indication that the Veteran served or visited Thailand between February 28, 1961 and May 7, 1975. Accordingly, the presumption of exposure to herbicides based on service in Thailand is not applicable. Id. Furthermore, hypertension is not a disability presumed from such herbicide exposure. 38 C.F.R. § 3.309(e).

The Board has reviewed the record, including service treatment records and post-service medical records, for any indication that either a heart disability or hypertension could have been caused by or was a result of active duty service and finds that the preponderance of the evidence is against such relationship. On the Veteran's October 2009 VA Form 21-526, he reported that his heart disability and hypertension began in 2000. During the June 2013 Board hearing, the Veteran and his wife testified that hypertension was first diagnosed in 2004 or 2001, respectfully. The medical evidence does not support a finding that either disability began earlier than reported by the Veteran. A February 2004 Private medical record indicates that the Veteran had a medical history of hypertension and was a heavy smoker but denied any prior myocardial infraction or heart disability. The Veteran was treated for severe mid substernal chest pain that radiated to both arms after chipping away ice on his driveway. The clinical impression was acute respiratory failure due to cardiac arrest and acute myocardial infraction, status post cardiac catheterization, angioplasty with stent placement.

The Veteran's service treatment records are silent for any diagnosis or treatment of a heart disability or hypertension or any symptoms of high blood pressure. The Veteran's March 1978 separation examination included a normal clinical evaluation for all bodily systems including "lungs and chest;" "heart;" and "vascular system." A chest x-ray examination was performed and the medical professional noted "no abnormalities of heart or lungs seen." Moreover, the medical professional indicated that the Veteran was examined and found physically qualified for separation. The Veteran's blood pressure was reported as 132/78, which is within normal range. In the Report of Medical History accompanying the examination, the Veteran denied "pain or pressure in chest;" "palpitation or pounding heart;" and "heart trouble." The Veteran did not provide an answer to "high or low blood pressure" but indicated that his health was "good" and "none" when asked if he used any medication at the time. The medical evidence proffered shows treatment of a heart disability and hypertension as early as February 2004 which is decades after the Veteran's March 1978 service separation. The medical evidence does not show that the Veteran's hypertension, manifested to a degree of 10 percent disabling or more within one year from his July 1981 separation from service and a presumption of service connection based on the chronicity of a heart disability or hypertension is not appropriate. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a).

There are numerous post-service medical records reflecting complaints and treatment for a heart disability and hypertension. However these records do not directly provide a positive nexus regarding the onset, etiology, or relationship of either disability to military service to include exposure to herbicides. The Veteran has asserted that his heart disability and hypertension are related to Agent Orange exposure. However, the Veteran has not offered probative and competent medical evidence establishing a nexus between either the heart disability or hypertension and service. A Personnel Information Exchange System (PIES) request was submitted in January 2010 for any documents showing exposure to herbicides and a negative response was received indicating that there were "no records of exposure to herbicides." The Veteran has not provided competent and probative evidence to support a finding of direct contact with herbicides in service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson, 581 F.3d 1313. Diagnoses of a heart disability and hypertension require specialized training for determinations as to diagnosis and causation, and are therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and either a heart disability or hypertension, the Board finds that the Veteran's disabilities were not incurred in-service and are not otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a); Skoczen, 564 F.3d at 1323-29; Fagan, 573 F.3d at 1286. Accordingly, service connection for either a heart disability or hypertension is not warranted on any basis.

The preponderance of the evidence is against the claim of entitlement to service connection for service connection for (1) a heart disability and (2) hypertension, to include as due to exposure to herbicides, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App.at 55.



ORDER

Service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with mixed anxiety and depressed mood, is denied.

Service connection for a heart disability, to include as due to exposure to herbicides, is denied.

Service connection for hypertension, to include as due to exposure to herbicides, is denied.


REMAND

A review of the record discloses further development is needed with respect to the Veteran's claim of entitlement to service connection for a diabetes mellitus, type II, to include as due to exposure to herbicides.

In May 2016, the Board remanded the claims to associate outstanding Social Security Administration (SSA) records with the claims file. The remand directives instructed the AOJ to readjudicate the Veteran's claims following necessary development and consideration of the evidence associated with the claims file since the issuance of the September 2014 Supplemental Statement of the Case (SSOC) and to issue an SSOC for any benefit sought but not granted. The AOJ issued an SSOC in November 2017, however, did not include the issue of entitlement to service connection for a diabetes mellitus, type II, to include as due to exposure to herbicides. 

Accordingly, the case is REMANDED for the following action:

The AOJ should readjudicate the claim of entitlement to service connection for a diabetes mellitus, type II, to include as due to exposure to herbicides, based on the entirety of the evidence, to include consideration of all evidence added to the record since the issuance of the September 2014 SSOC. If any benefit sought on appeal is denied, the AOJ must furnish an SSOC to the Veteran and his representative. An appropriate period of time should be allowed for response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs