Citation Nr: 1808802 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-34 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide exposure. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction, secondary to type II diabetes mellitus. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In his December 2013 substantive appeal and a November 2015 hearing request, that was received in December 2015, the Veteran requested a Board hearing. Thereafter, he withdrew the hearing request, through his representative, in a motion to stay proceedings and waiver of hearing request, submitted in November 2017. The Board also notes that the referenced motion requested that the Board stay proceedings until a Privacy Act/FOIA request for a copy of the Veteran's claims file was completed; the representative indicated that a brief in support of the appeal would subsequently be submitted. A notification later, dated December 20, 2017, indicates that the request for a copy of the claims file had been fulfilled. Consequently, the condition set by the representative in requesting that the Board stay proceedings, namely that he receive a copy of the claims file, has been met, and the Board will now proceed with adjudication of the appeal. The Board notes in this regard that the representative, in indicating that he would submit a brief after reviewing the claims file, did not specify how long he would need to submit the brief, or even ask for time in which to submit the brief. The Board has afforded the representative more than a month in which to submit his brief, which is a reasonable amount of time given that the representative has not actually requested that the Board delay action on the appeal until the brief is submitted. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam, and he was not otherwise exposed to herbicides during service, including in Thailand. 2. The Veteran's CAD was not manifest in service or to a degree of 10 percent within 1 year of separation and is not shown to be related to an injury, disease, or event in service. 3. The Veteran's type II diabetes mellitus was not manifest in service or to a degree of 10 percent within 1 year of separation and is not shown to be related to an injury, disease, or event in service. 4. The Veteran's claimed erectile dysfunction is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in January 2011 and June 2011. The Board acknowledges that the Veteran has not been provided a VA examination for his CAD, type II diabetes mellitus, or erectile dysfunction. Such an examination, however, is not necessary for any of those claimed disorders. The evidence does not establish an event, injury or disease in service associated with any of the referenced disorders. In particular, the Veteran was not exposed to herbicides, which is the theory on which he bases his claims regarding CAD and diabetes. As for the erectile dysfunction, the Veteran's contention is that the disorder originates from the nonservice-connected diabetes mellitus; he does not contend and the evidence does not suggest that his only service-connected disorder, namely left ear hearing loss, caused or aggravated his erectile dysfunction. Consequently, and for the above reasons, a VA examination or opinion is not necessary as to the matters on appeal. The Board therefore finds that VA examinations for these disabilities are not warranted. Additionally, the Board acknowledges a correspondence, dated January 2015, noting an evaluation had been conducted as part of the Veteran's recent participation in the VA Agent Orange Registry. There is also a correspondence, dated December 2011, in which the Veteran had indicated he received Social Security Administrative (SSA) benefits due to his heart disability. Although the referenced evaluation report has not been obtained, the summary of the findings of that report is of record, and notes only that the Veteran has the disorders for which he seeks service connection; neither the Veteran nor the record suggests that the underlying evaluation report would aid in substantiating the claim, given that the diabetes and CAD claims rely on an unestablished element that the evaluation report can not remedy, namely exposure to herbicides in service. Nor does the Veteran contend that the evaluation report would show that the referenced disorders actually were present in service or within a year of discharge from service. With respect to the SSA records, the Veteran does not contend that those records would establish that his claimed disorders actually began in service or within a year of discharge. Nor does he contend that the records would include any record establishing exposure to herbicides in service. As neither the evaluation report nor the SSA records have any evident relevance to the instant appeal in the sense that they would aid in establishing the missing elements involved in substantiating the claims, VA's duty to assist does not extend to obtaining those records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). As such, the Board finds that there is no prejudice in proceeding with the appeal. Accordingly, the Board finds that VA's duty to assist has been met. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including type II diabetes mellitus and CAD, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. 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. 38 C.F.R. § 3.303(d). At the outset, the Board acknowledges that private treatment records show that the Veteran has been diagnosed as having type II diabetes mellitus and CAD. The Veteran's STRs, however, are silent for complaints or treatment related to type II diabetes mellitus or a heart disorder. His enlistment and separation examination reports show that his endocrine system and heart were clinically evaluated as normal. Furthermore, in an April 1975 dental patient history STR, the Veteran denied ever being treated for a heart condition or diabetes. A February 2003 private treatment record indicated the Veteran was first diagnosed with type II diabetes 10 years prior and a January 1992 private treatment record noted the Veteran initially began experiencing chest pains approximately 10 years prior and was subsequently diagnosed with CAD. There is no evidence of record to suggest the presence of type II diabetes mellitus or CAD prior to the indicated date of diagnoses. Based on this evidence, there is no indication that the Veteran's type II diabetes mellitus or CAD manifested to a compensable degree within one year of the Veteran's separation from military service in 1975. Thus, service connection is not warranted for type II diabetes mellitus or CAD on a presumptive basis for chronic diseases. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including coronary artery disease and type II diabetes mellitus, shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive/negative evidence as to any issue material to a decision, VA will resolve reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Agent Orange Exposure The Veteran asserts that his coronary artery disease and type II diabetes mellitus were caused by herbicide exposure during active service when he was deployed to Thailand. There is no dispute that he did not serve in the Republic of Vietnam during the Vietnam Era; he does not contend he had Vietnam service and the record does not support such service. The Veteran's DD Form 214 and military personnel file indicate the Veteran served in the 8th Munitions Maintenance Squadron unit in Ubon Airfield in Thailand (PACAF) from July 1973 to July 1974. His military occupational specialty involved munitions maintenance and loading operations. As a load crew chief in Thailand, the Veteran was responsible for munitions loading operations, to include arming, de-arming, reconfiguring aircrafts, and functional checks. The Veteran reported that his duty included responsibility for the loading and unloading of armament prior to aircraft departure and return. He indicated armament loading and unloading took place at the end of the runway adjacent to the perimeter fence for safety reasons. He indicated that he was exposed to dust and debris, presumably to include Agent Orange, stirred up during engine runups and normal winds. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). In noting that the Veteran did not serve in Vietnam, and was thus not exposed to herbicide exposure in Vietnam, the Board also finds that the Veteran is not entitled to a presumption of herbicide exposure due to his service in Thailand. In that regard, previous development procedures that Veterans' Benefits Administration (VBA) was using for purposes of developing information concerning possible Agent Orange exposure in Thailand was replaced by a memorandum for the record that was jointly prepared by the Compensation and Pension Service and the Department of Defense. Now, if a claimed herbicide exposure cannot be resolved based on the information contained in this memorandum, then follow-up inquiries are being sent to the Army and JSRRC. Such a memorandum was associated with the claims file in February 2012. This memorandum reports that tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. This memorandum reflects that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. Although the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. The memorandum further concedes that non-tactical, commercial herbicides were used within fenced perimeters at other times during the Vietnam War period. Therefore, if a Veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood that the Veteran had been exposed to commercial pesticides. Security police units were known to have walked the perimeters, especially dog handlers. However, the Veteran's service was after 1966, and as such, it cannot be presumed that he was exposed to tactical herbicides while stationed in Thailand. The Veteran contends that his military occupational specialty caused him to be present at the perimeter of his military base. Although the Veteran's duties included munitions maintenance and loading operations and the Veteran contends that his duties took him near the perimeters of the base, there is simply no documentation that the Veteran was indeed exposed to herbicides sprayed at the base perimeter. Nor is his military occupational specialty one that is recognized as likely involved proximity to the perimeter of the base. The Board also points out that even if, for safety reasons, he fitted munitions at the far end of the flight line, he would still have fit the munitions on the runway, as it is unlikely that aircraft would be taken off a level runway just to receive armaments. The Board finds it unlikely that the end of the runway abutted the perimeter of the fence, which would leave aircraft with little room to maneuver. The Board finds that the Veteran's account is implausible and lacks credibility. The Board consequently finds he was not exposed to commercial herbicides while stationed in Thailand. The Veteran's claims for ischemic heart disease and type II diabetes mellitus are based entirely on his alleged exposure to Agent Orange. As discussed, the Board finds his account of exposure to lack credibility, and to be unsupported by the nature of his duties. Consequently, the preponderance of the evidence is against a presumptive finding of service connection based on exposure to Agent Orange. The Board finds that the Veteran's service personnel file, and the aforementioned memorandum, is the most probative evidence of record as to whether the Veteran was exposed while serving in Thailand. Therefore, he cannot be presumed to have been exposed to herbicides in Thailand. The Veteran's service personnel records demonstrate that he did not serve in the Republic of Vietnam, and the other probative evidence of record does not show that he was exposed to herbicides at the Ubon base in Thailand, and he is therefore not entitled to the presumption that he was exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, the Board finds the preponderance of the competent and credible evidence weighs against the Veteran's assertions of herbicide exposure. Therefore, the herbicide presumption is not for application in this case. See 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. The herbicide agent presumption does not apply to the Veteran. The Veteran is therefore not entitled to presumptive service connection for CAD and/or type II diabetes mellitus on the basis of herbicide exposure in Thailand. See 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. Although presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for type II diabetes mellitus or CAD on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Direct and Secondary Service Connection The Board has considered whether service connection for type II diabetes mellitus and/or heart disease is warranted on a direct basis, but finds that it is not. Although the record establishes current diagnoses of both claimed disabilities of type II diabetes mellitus and CAD, there is no evidence of either condition in service. The record also contains no nexus evidence linking type II diabetes mellitus or CAD to the Veteran's active military service. The evidence of record shows that the Veteran's heart disease and type II diabetes mellitus were not diagnosed until the 1980s and 1990s, respectfully, and the Veteran also has not indicated these disabilities had its onset in service or soon after separation from military service. In view of the evidence, only current disabilities are shown. An in-service event, injury, or disease, has not been shown and medical nexus evidence linking either claimed disability to military service is lacking. Consequently, service connection for type II diabetes mellitus and CAD are also not warranted on a direct basis. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (service connection requires evidence of in-service incurrence or aggravation of a disease or injury and a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). Regarding the Veteran's claim of service connection for erectile dysfunction, the Veteran is not claiming that this disability is directly related to his military service. See 38 C.F.R. §§ 3.303, 3.304. Rather, it is the Veteran's contention that his erectile dysfunction is secondary to his type II diabetes mellitus. Accordingly, because the Veteran does not contend that his claimed erectile dysfunction is directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for this disability on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding "that the Board is not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). A disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. In the instant case, because service connection for type II diabetes mellitus has not been established, the Veteran's claim of service connection for erectile dysfunction is not warranted as a matter of law. This is because there is no legal basis upon which to award service connection for disabilities that are claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. ORDER Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for CAD is denied. Entitlement to service connection for erectile dysfunction, secondary to type II diabetes mellitus, is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs