Citation Nr: 1806098 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-39 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II, to include as due to Agent Orange exposure. 2. Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure. 3. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, claimed as secondary to diabetes mellitus. 4. Entitlement to service connection for psoriasis, claimed as secondary to diabetes mellitus. ATTORNEY FOR THE BOARD R. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from January 1961 to April 1981. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. As set forth above, the claim is currently in the jurisdiction of the RO in Atlanta, Georgia. In the October 2014 rating decision, the RO, inter alia, denied service connection for diabetes mellitus type II, prostate cancer, bilateral peripheral neuropathy of the lower extremities, and psoriasis. The Veteran submitted a notice of disagreement with the RO's determination. In June 2016, the RO issued a Statement of the Case addressing the matters. The Veteran perfected a timely appeal via his submission of a VA Form 9 in August 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran was stationed at U-Tapao Airfield in Thailand from October 1975 to May 1976 as an air traffic control technician; his duties did not put him on the perimeter of the base and there is otherwise no probative evidence of exposure to an herbicide agent during service. 2. Diabetes mellitus was not present during the Veteran's active service, manifest to a compensable degree within one year of separation from service, and the record contains no indication that his current diabetes mellitus is causally related to his active service or any incident therein. 3. Prostate cancer was not present during the Veteran's active service, manifest to a compensable degree within one year of separation from service, and the record contains no indication that the post-service prostate cancer is causally related to his active service or any incident therein. 4. Peripheral neuropathy of the lower extremities was not present during the Veteran's active service, manifest to a compensable degree within one year of separation from service, and the record contains no indication that any post-service peripheral neuropathy is causally related to his active service or any incident therein or causally related to or aggravated by a service-connected disability. 5. The most probative evidence establishes that the Veteran does not currently have a psoriasis disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in active service, nor may such disability be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Prostate cancer was not incurred in active service, nor may such disability be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. Peripheral neuropathy of the lower extremities was not incurred in service, may not be presumed to have been incurred in service, and is not causally related to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. Psoriasis was not incurred in service, may not be presumed to have been incurred in service, and is not causally related to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veteran has not 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 a duty to assist argument). Background In pertinent part, the Veteran's service treatment records show that at his August 1960 enlistment medical examination, a birthmark on the left side of his back was noted. No other abnormalities were identified. In-service treatment records are negative for pertinent complaint or abnormalities. At the Veteran's December 1980 retirement medical examination, his endocrine system, neurological system, lower extremities, and skin were evaluated and determined to be normal. The Veteran's rectal and prostate examination was also noted as normal. Laboratory testing was negative, including for sugar in the urine. The Veteran's service personnel records show that he served at U-Tapao Airfield in Thailand as an air traffic control technician, during the period of October 1975 to May 1976. In June 2013, the Veteran submitted an original application for VA compensation benefits, seeking service connection for, inter alia, diabetes mellitus type II, prostate cancer, bilateral peripheral neuropathy of the lower extremities, and psoriasis. In support of his claim, the RO obtained VA and private medical records, dated from September 2005 to November 2013, showing treatment for diabetes mellitus and prostate cancer. In pertinent part, private medical records reflect a September 2005 diagnosis of prostate cancer, and a subsequent prostatectomy in February 2006. In a November 2005 private medical record, an examiner noted that the Veteran had a history of adult-onset diabetes mellitus. In December 2011, October 2012, August 2013, and September 2013 private medical records, the Veteran reported a family history of diabetes mellitus type II. In a March 2014 VA clinical record, other specified idiopathic peripheral neuropathy was noted in the Veteran's problem list. Post-service clinical records are negative for diagnosis or treatment of a psoriasis condition. In an April 2014 statement, the Veteran asserted that he suffered from diabetes type II for 15 years, and underwent a prostatectomy in 2006, as a direct result from his exposure to Agent Orange. He stated that his duties as an air traffic controller in Thailand, required visits to the Radar Approach Control facility, which was located next to the runway in an area exposed to Agent Orange. In a September 2014 Administrative Decision, the RO concluded that the Veteran's personnel records confirmed that he had been stationed in U-Tapao, Thailand. However, the Veteran's military occupational specialty code (MOS) did not put him on the perimeter of the base, and there was no evidence of tactical herbicide use for clearing small scale brush or weeds along the flight line/runway. On his August 2016 substantive appeal, the Veteran indicated that service connection for diabetes mellitus was warranted, as he had been exposed to Agent Orange during service and had no family history of diabetes mellitus. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases, including diabetes mellitus, malignant tumors, and an organic disease of the nervous system, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Although the Veteran did not serve in Vietnam, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although the Department of Defense indicated that the herbicide used was commercial in nature rather than tactical (such as Agent Orange), VA has determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength commercial variant, were used. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. Thus, VA has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a facts found or direct basis should be extended to those veterans. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that quality for this consideration. As such, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H(5). A veteran who was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). The enumerated diseases which are deemed to be associated with herbicide exposure include: chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; early onset peripheral neuropathy; and prostate cancer. Id. The Board notes that effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and remove a note stating that the term "acute and subacute peripheral neuropathy" meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 173, 54763 (Sept. 6, 2013). The amendment clarifies that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide agent exposure. However, the revised provisions did not change a prior requirement that peripheral neuropathy must have become manifest to a compensable degree within one year after a veteran's last in-service exposure in order to qualify for the presumption of service connection. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010). Despite the presumptive regulations, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Diabetes mellitus type II and prostate cancer The Veteran seeks service connection for diabetes mellitus and prostate cancer. He contends that these disabilities are due to his exposure to Agent Orange in Thailand. As set forth above, the Veteran was stationed at U-Tapao Airfield in Thailand from October 1975 to May 1976 as an air traffic control technician. The Veteran's MOS, however, is not one of those listed in the MR21-1 as having duties near the air base perimeter and he has not contended otherwise. The Board has considered the Veteran's statements to the effect his duties required visits to the runway in an area exposed to Agent Orange for the purpose of keeping it clear of vegetation. He also indicated that his barracks were presumably sprayed as well. The Board finds, however, that in light of the information provided by the service department, his statements are not sufficient to establish exposure to Agent Orange on a facts found basis. In that regard, the record contains a Memorandum from the Compensation and Pension Service noting that the Department of Defense (DoD) had provided a listing of herbicide use and test sites outside of Vietnam. The DoD report indicated that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964. Specifically, this was done at the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army near Pranburi, Thailand. This location was not near any U.S. military installation or Royal Thai Air Force Base. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam and not Thailand. In addition, the Department of the Air Force provided information to the effect that other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. There were also no records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, and all such use required approval of the Armed Forces Pest Control Board and the Base Civil Engineer. Further, there are no records of small-scale brush or weed clearing activity along the flight line or around living quarters involving tactical herbicides, only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer. Since 1957, the Armed Forces Pest Control Board (now the Armed Forces Pest Management Board) has routinely provided listings of all approved herbicides and other pesticides used on U.S. Military Installations worldwide. Thus, while the Board has considered the Veteran's assertion of Agent Orange exposure in Thailand, the Board assigns greater probative weight to the information provided by the service department, particularly given that the Veteran's statements do not provide a level of detail sufficient to conclude that he was exposed to Agent Orange. Although the Veteran is competent to report that which is capable of his lay observation, there is no indication that he has the scientific training or expertise to identify herbicides he believes were sprayed nor has he reported any specific basis to identify the herbicides he believes were sprayed. In view of the foregoing, the Board finds that there is no probative evidence that the Veteran was exposed to an herbicide agent during service. Thus, the presumptive provisions do not avail the Veteran. Although service connection for diabetes mellitus and prostate cancer cannot be established on a presumptive basis, the Board has considered the claims on a direct basis. After doing so, however, the Board finds that the preponderance of the evidence is against the claims. In that regard, the record on appeal establishes that diabetes mellitus and prostate cancer were not present during the Veteran's active duty or manifest to a compensable degree within in the first post-service year. As set forth in detail above, the Veteran's service treatment records are silent for mention of any of these conditions and his December 1980 retirement medical examination was normal in all pertinent respects. The post-service record on appeal is similarly negative for complaints or findings of any of these conditions within the first post-service year or, indeed, for many years thereafter. Based on the foregoing, the Board finds that the most probative evidence establishes that diabetes mellitus type II and prostate cancer were not present during the Veteran's active duty or manifest to a compensable degree within the first post-service year. The Board notes that the Veteran has not contended otherwise. In addition, the record contains no indication that the Veteran's current diabetes melliltus or prostate cancer is otherwise causally related to his active service or any incident therein. The Board has considered the Veteran's statements to the effect that service connection is warranted as he has no family history of diabetes mellitus. As set forth above, however, the private clinical records note that the Veteran does have a family history of diabetes mellitus. Regardless, the record otherwise contains no indication of a link between the Veteran's diabetes mellitus and his active service or any established incident therein. For example, no medical professional has related the Veteran's diabetes mellitus or prostate cancer to his active service or any established incident therein. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for diabetes mellitus and prostate cancer. The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Peripheral neuropathy of the lower extremities The Veteran seeks service connection for peripheral neuropathy of the lower extremities. He contends that such condition is secondary to diabetes mellitus. In light of the Board's decision above, service connection for peripheral neuropathy secondary to diabetes mellitus is not warranted. The Board has also considered whether service connection on a direct basis is warranted, but concludes that the preponderance of the evidence is against the claim. As set forth above, the Veteran's service treatment records are entirely negative for complaints or findings of peripheral neuropathy. At his December 1980 retirement medical examination, his neurological system and lower extremities were examined and determined to be normal. Likewise, there is no indication of peripheral neuropathy within the Veteran's first post-service year or for many years thereafter. In fact, the first post-service clinical evidence of a peripheral neuropathy condition is in a March 2014 VA clinical record, approximately 33 years after service separation. Finally, the record contains no indication, nor has the Veteran contended, that any current peripheral neuropathy is causally related to his active service or any established incident therein. The Board has considered the Veteran's entitlement to service connection for peripheral neuropathy secondary to Agent Orange exposure but, as noted, above, the record fails to establish exposure to Agent Orange. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral peripheral neuropathy of the lower extremities. The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Psoriasis The Veteran seeks service connection for a psoriasis disability. He contends that such condition is secondary to diabetes mellitus. As set forth above, the Veteran's service treatment records are entirely negative for complaints or findings of a psoriasis condition. At his December 1980 retirement medical examination, his skin was evaluated and determined to be normal. The Board further notes that the post-service record is similarly negative for clinical evidence of a current psoriasis disability. As set forth above, the clinical evidence of record is entirely silent for any reference to a psoriasis disability. In fact, records from the Veteran's private treating physician, spanning the period from 2005 to 2013 show that his skin was examined on multiple occasions during this period and was consistently noted to be normal. The examiner noted that the Veteran's skin was normal in temperature, moisture, and color and pigmentation. He further indicated that the Veteran's skin exhibited no rash, lesions, pallor, cyanosis, or ulcers. Additionally, there was no hair loss on the lower legs. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In this case, for the reasons discussed above, the most probative evidence reflects that the Veteran does not currently have a psoriasis disability. To the extent that the Veteran is competent to state that he has psoriasis, the Board notes that absent probative evidence of psoriasis in service or a link between any current psoriasis and his active service or any established incident therein, service connection is not warranted. Finally, because the Board has denied service connection for diabetes mellitus, service connection for psoriasis secondary to diabetes mellitus is not warranted. In view of the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for a psoriasis disability. The benefit of the doubt doctrine is not for application where the clear weight of the evidence is against the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is denied. Entitlement to service connection for psoriasis is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs