Citation Nr: 1819803 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 09-50 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus (DM), including as secondary to herbicide agent exposure. 2. Entitlement to service connection for hypertension (HTN), including as secondary to DM. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities (PN), including as secondary to DM. 4. Entitlement to service connection for an eye disorder, including as secondary to DM. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty in the Air Force from February 1965 to February 1969, with subsequent reserve service. This case comes before the Board of Veterans' Appeals (the Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran had a hearing before a Decision Review Officer (DRO) in September 2010 and before the undersigned Veterans Law Judge (VLJ) in November 2012. Transcripts of both proceedings have been associated with the record. This case was most recently before the Board in June 2017 when it was remanded for additional development. It has since been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. These records were reviewed in connection with the decision below to ensure thorough analysis of the evidence of record. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against a finding that the Veteran was exposed to designated herbicide agents as he did not perform duties as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise indicate service near the Udon Air Base perimeter nor did he visit the Republic of Vietnam. 2. The preponderance of competent and credible evidence weighs against a finding that DM, HTN, PN, or an eye disorder were demonstrated in service; that DM, HTN, or PN were compensably disabling within a year of separation from active duty; or that there is a nexus between a current diagnosis of DM, HTN, PN, or an eye disorder and service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, hypertension, peripheral neuropathy of the bilateral lower extremities and an eye disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence in the electronic claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a July 2008 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment and personnel records and post-service treatment records. Although a VA medical examination or opinion was not provided in connection with the claim, the Board finds that an opinion is not necessary to make a decision on the claim. There is no competent or credible evidence that the Veteran suffered an event, injury, or disease in service, and there is no evidence of an indication that the Veteran's claimed disabilities may be associated with an established event, injury, or disease in service. Absent these requirements, and as the record is developed enough for the Board to make an informed decision on the claim, no VA examination is necessary. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided a hearing before the undersigned in November 2012. As there is no allegation that the hearing provided to the appellant was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in June 2017 in order for the RO to attempt to determine whether the Veteran was exposed to herbicides during his period of service at Ubon RTAFB, Thailand, between October 1967 and November 1968. Subsequently, the RO received additional service personnel records and a response from the Defense Personnel Records Information Retrieval System (DPRIS) in October 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). DM, HTN, and PN are chronic diseases listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309 (e), shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a) (6) (iii). "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). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a Veteran must demonstrate actual duty or visitation in the Republic of Vietnam. In addition, if a Veteran served on one of the specific air bases noted below 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 military occupational specialty (MOS), evidence of daily work duties, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. See VA's Adjudication Procedure Manual, M21-1, Part IV, subpart ii, Chapter 1, section H, topic 5. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases are the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Id. As discussed below, the Board finds that these statutory provisions do not apply in this case. The Veteran contends that as part of his duties in the Air Force, he set foot on the ground in the Republic of Vietnam on supply missions, to include at Da Nang Air Base. The Veteran also asserts that while stationed at Ubon Royal Thai Air Force Base in Thailand from October 1967 to November 1968, he performed guard duties on several occasions. The RO attempted to verify the Veteran's reported flights to Vietnam, and received a response from the DPRIS in June 2011. The response indicated that historical reports from the 8th Tactical Fighter Wing, the higher headquarters of the 8th Supply Squadron to which the Veteran had been assigned, had been reviewed. Those histories did not indicate personnel from the 8th Supply Squadron retrieved aircraft parts from Da Nang. The response stated that a report for the period from October 1967 to December 1967 showed two personnel from the 8th Support Squadron were on temporary duty assignment, but that the identities of those individuals and the location(s) of their assignments were unknown. In response to the Board's remand, the RO received additional service personnel records and a response from the DPRIS in October 2017 in which the United States Joint Services Records Research Center (JSRRC) reviewed a copy of the Air Force Historical Research Agency memorandum for the VA dated August 11, 2015. The memorandum pertained to the Air Force installations operating in Thailand from 1963 through 1976. These installations were located on the following Royal Thai U.S. Air Force (USAF) bases: U-Tapao, Ubon, Nakhom Phanom, Udorn, Takhli, Korat, and Don Muang. The memorandum concluded "....no documentation or evidence has been found in the holdings of the Historical Research Agency showing that tactical herbicides such as Agent Orange, were ever used on any USAF installation in Thailand for vegetation control during the Vietnam era." To the extent the October 2017 DPRIS report indicates that an August 2015 memorandum by the Air Force Historical Research Agency has concluded that there was no evidence of use of tactical herbicide agents on any Thailand air base during the Vietnam-era, the Board finds it is inconsistent with other current VA guidance. As noted above, the current practice of VA's Compensation Service is to extend special consideration of herbicide exposure on a factual basis to those Veterans whose duties placed them on or near the perimeter of Thailand military bases during the Vietnam era. Here, the Veteran's DD Form 214 indicates that the Veteran did not have duties as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise an MOS indicating service near the air base perimeter, nor did he visit the Republic of Vietnam. His service personnel records contain no mention of perimeter duties of any kind and no mention of special flights to Vietnam as would have been appropriate if his skills, experience, and the needs of his unit warranted this special duty. The Board finds that the weight of the evidence demonstrates that the Veteran did not serve in Vietnam nor did his duties include work along the perimeter of the base at Udon. The Veteran's report of special flights to Vietnam is not credible as they are not consistent with the service records. There is no credible evidence otherwise establishing exposure to herbicides, the Board finds that exposure to herbicides is not conceded, and service connection cannot be granted on a presumptive basis for disability as a result of herbicide exposure. This claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation). As detailed above, in order to establish service connection for a claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between (1) and (2). See Hickson, 12 Vet. App. at 253. In this case, it is undisputed that the Veteran has diagnoses of DM, HTN, PN, and an eye disorder (to include cataracts and diabetic retinopathy). Hickson element (1) is therefore satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board notes that Veteran's service treatment records are negative for any finding, complaints, or treatment related to DM, HTN, PN, or an eye disability. The Board notes that the Veteran had myopia on enlistment to service; however, VA regulations provide that refractive error does not constitute a "disease" or injury" for in the meaning of applicable legislation for VA compensation purposes. See 38 C.F.R. § 3.303 (c), 4.9 (2017); Terry v. Principi, 340 F.3d 1378 (Fed.Cir.2003). Therefore, service connection may not be allowed for refractive error of the eyes. See VAOPGCPREC 82-90 (July 18, 1990). Dorland's Medical Dictionary (31st edition) defines myopia as "an error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus in front of the retina". Thus, myopia is by definition a type of refractive error. As noted herein above, the Board has found that there is no credible evidence that the Veteran was exposed to herbicide agents during his time in service. Therefore, Hickson element (2) is not met as to the claimed disabilities. Therefore, because Hickson element (2) is not met, Hickson element (3), evidence of a nexus between DM, HTN, PN or an eye disorder and service, cannot be satisfied either. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). With regards to presumptive service connection for DM, HTN, or PN, the weight of the evidence shows no chronic symptoms of these conditions during service, no continuous symptoms of either condition since service, and that the DM, HTN, or PN did not manifest to a compensable degree within one year of service. To this point, service treatment records are absent for any showing of chronic symptoms, testing, or diagnosis for DM, HTN, or PN, and the first mention of DM, HTN, or PN in the record is not until years after service. As such, presumptive service connection is not warranted. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for an eye disorder is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs