Citation Nr: 1810787 Decision Date: 02/21/18 Archive Date: 03/01/18 DOCKET NO. 14-20 453A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes, to include as due to herbicide exposure. 2. Entitlement to service connection for a heart condition, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from July 1968 to June 1972. This appeal arises before the Board of Veterans' Appeals (Board) from a December 2011 rating decision in which the Department of Veteran Affairs (VA) St. Petersburg, Florida, Regional Office (RO) denied entitlement to service connection for diabetes and coronary artery disease status post coronary bypass grafting. In February 2016, the Board remanded the appeal for further development. FINDINGS OF FACT 1. The record does not establish that the Veteran served in the Republic of Vietnam during the Vietnam era or in Korea, in or near the demilitarized zone (DMZ) between April 1, 1968 and August 31, 1971, there is insufficient evidence that the Veteran was exposed to herbicides during his period of service, including his temporary duty assignment in Okinawa, Japan, and the record does not indicate that the Veteran had complaints of or sought treatment for diabetes during service or within one year of separation. 2. The record does not establish that the Veteran served in the Republic of Vietnam during the Vietnam era or in Korea, in or near the demilitarized zone (DMZ) between April 1, 1968 and August 31, 1971, there is insufficient evidence that the Veteran was exposed to herbicides during his period of service, including his temporary duty assignment in Okinawa, Japan, and the probative evidence of record does not indicate that the Veteran's heart condition was caused by or related to his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1133, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a heart condition, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1133, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS SERVICE CONNECTION 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. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1133 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, a veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents. In the case of such a veteran, service connection for certain disorders, such as diabetes or ischemic heart disease, will be rebuttably presumed if they are manifest to a compensable degree at any time after service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. § 3.307(d) (2017). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for a herbicide-related disease to be applicable. Otherwise, exposure to herbicides is not presumed. However, if actual exposure to herbicides has been established, the presumption of service connection found in 38 C.F.R. § 3.309 (e) (2017) for herbicide-related diseases is applicable. Diabetes The Veteran contends that his diabetes is due to his period of service. Specifically, the Veteran asserts that he was exposed to herbicides during his service in Southeast Asia, which resulted in his development of diabetes. Turning to the record of evidence, the Veteran's military records indicate that the Veteran served overseas in Kadena AB, Okinawa, Japan. The Veteran's MOS is reported as Administrative Specialist. The Board notes that the records do not indicate any other overseas service. In a May 2011 Statement in Support of Claim, the Veteran reported that he was in Southeast Asia in 1969 to 1970 and 1971 to 1972. The Veteran stated that he was stationed at McCoy Air Force Base (AFB) and went on temporary duty in Okinawa, Japan. The Veteran further reported that from Japan, he went to the U-Tapao AFB in Thailand for three days, and then to Tuy Hoa AFB in Vietnam for two weeks. The Veteran stated that he was with the 306th Bomb Wing. The Veteran reported that he was told at the time that 34,000 gallons of Agent Orange were deployed. The Veteran further stated that he knows his diabetes is not hereditary because he has no one in his family with diabetes. In an August 2011 Statement in Support of Claim, the Veteran stated that he was with operation ARC LIGHT with 306th Bomb Wing based out of McCoy AFB in Florida. The Veteran also stated that he was deployed to Kadena AFB in Okinawa, Japan and U-Tapao, Thailand, in 1969 to 1970 and 1971 to 1972. The Veteran also submitted an internet article with information on the Arc Light/Young Tiger deployments. In January 2012 correspondence, the Veteran stated that he was diagnosed with borderline diabetes while at Kadena AFB. He further asserted that he was again diagnosed with borderline diabetes at McCoy AFB prior to his discharge. The Veteran also submitted an internet article regarding Agent Orange in Okinawa. In a May 2012 Notice of Disagreement, the Veteran stated that in June 1972, when he returned from Southeast Asia to McCoy AFB, he was having problem losing weight and was always thirsty. The Veteran stated that he had a blood test done and was diagnosed with pre-diabetes. A June 2014 VA Memorandum stated that the United States Department of Defense (DOD) list indicates only that limited testing of tactical herbicides was conducted in Thailand from April 2, 1964 through September 8, 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. The memorandum stated that report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. The memorandum noted that this location was not near any U.S. military installation or Royal Thai Air Force Base. The memorandum went on to note that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. VA received a letter from the Department of the Air Force stating that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. The records indicated that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer. In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCHHAND or by helicopters under the control of the U.S. Army Chemical Corps. Base Civil Engineers were not permitted to purchase or apply tactical herbicides. The memorandum states that there were no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there were records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30, 1963 through September 16, 1963 and from October 14, 1966 to October 17, 1966. The 1966 missions involved the spraying of Malathion insecticide for the "control of malaria carrying mosquitoes." These facts are not sufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. The memo further notes that there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. The memorandum stated that aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. Additionally, the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Also, there are no studies showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. In a March 2017 Memorandum, VA stated that the claimed herbicide exposure was not conceded. The memorandum explained that, to verify the Veteran's exposure, research was conducted by reviewing the Veteran's exposure statements, electronic claims file, Agent Orange Mailbox and the Joint Service Records Research Center (JSRRC). The JSRRC researched the available 1968 (USAF) station list and found that the 3382nd student squadron was assigned to the 3380th technical school, and stationed at Keesler Technical Training Center (KTTC), Keesler Air Force Base (AFB), and Mississippi. The memorandum also stated that the JSRRC researched the May through October 1968 history submitted by the KTTC and additional available historical information. The JSRRC stated that the records were negative and did not report on or discuss the Veteran or unit personnel assigned to the 3382nd student squadron being exposed to Agent Orange or tactical herbicides while training at KTTC. JSRRC also reviewed the history of the DOD programs for the testing, evaluation and storage of tactical herbicides and the department of defense listings of herbicide spray areas and test sites outside the Republic of Vietnam; Keesler AFB is not a listed location. JSRRC reviewed and maintains a copy of U.S. Air Force Historical Research Agency memorandum for the Department of Veterans Affairs dated August 11, 2015. The memorandum pertains to the USAF installations operating in Thailand from 1963 through 1976. These installations were located on the following Royal Thai Air Force Bases: U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The memorandum concludes "...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." Therefore, the JSRRC concluded that without further review, the claimed exposure is not conceded. A separate March 2017 correspondence regarding herbicide verification inquiry stated that DOD provided Compensation Service with a listing of locations outside Vietnam and the Korean DMZ where Agent Orange was used, tested, or stored. The list did not contain names of individuals involved with Agent Orange. Additionally, there were no references to routine base maintenance activities such as range management, brush clearing, and weed killing. These were accomplished with commercial herbicides on all military bases worldwide. The correspondence noted that commercial herbicides do not fall under the regulations governing Agent Orange exposure at 38 CFR § 3.307(a)(6)(i). The correspondence went on to state that DOD has not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Okinawa during those years and so there was no need for Agent Orange use there. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. All evidence shows that any herbicide use the claimant or others observed, or were associated with, was the commercial variety, not Agent Orange. Therefore, Compensation Service can provide no evidence to support the claim. In a May 2017 lay statement, the Veteran reported that at the time he was on temporary duty from McCoy AFB, Orlando, Florida, 306th Bomb Wing, he was sent with a detachment, for a little less than 2 weeks, to Tuy Hoa to take the official correspondence. The Veteran explained that security concerns of basing SAC's bombers directly in South Vietnam resulted in the assignment of B52s to U-Tapao AFB in neighboring Thailand. The Veteran stated that Tuy was given a tactical air support mission instead. He stated that his temporary duty orders should be in his military records. The Veteran went on to state that at U-Tapao AFB, Thailand, Agent Orange was stored in the flight building where 306th Bomb Wing was located. He stated that he was a clerk typist next to the building, where many barrels were stored. The Veteran further asserted that while stationed at Kessler AFB in 1968, while in technical school, he was assigned to a detail moving many barrels of Agent Orange at Gulf Port, Mississippi. The Veteran stated that the barrels had Dow chemical on them, and he was told they were herbicides to be stored until ready to ship overseas. The Veteran went on to state that, while stationed at Kadena AFB on temporary duty in 1971, his duty station was on the flight line in the building next to where an of inventory of 25,000 barrels of herbicides were sent to Okinawa prior to shipment to Johnston Island in 1971 during Operation Red Hat. He stated that he was assigned to cleaning detail for the FOR-123 aircraft that transported Agent Orange. In a June 2017 Memorandum, VA stated that the JSRRC researched the July 1969 to June 1970 histories submitted by the 306th Bombardment Wing (BW) stationed at McCoy Air Force Base (AFB), Florida. The histories document that the 306th BW's primary KC-135Q support was for SR-71 missions flown out of Beale AFB, California and Kadena AB, Okinawa. The histories also document that the 306th Air Refueling Squadron (306th ARS) kept four crews on Kadena AB at all times. The histories further document the 306th BW's involvement in "Project Arc Light." The JSRRC reported, however, that the histories do not document the use, spraying, testing or storage of Agent Orange or tactical herbicides at Kadena AB during the reporting period. The JSRRC concluded therefore that without further review, the claimed herbicide exposure is not conceded. After review of the evidence, the Board finds that there is insufficient evidence to establish that the Veteran was exposed to herbicides during service. The Veteran's military personnel record does not establish that the Veteran touched the ground in Vietnam. Moreover, the evidence of herbicide use in Okinawa and Thailand consists of the Veteran's statements and Internet-based articles that assert that Agent Orange and other toxic herbicides were used by the U.S. military in Okinawa and Thailand. The articles, however, provide only speculative generic statements that contain no evidence that the Veteran in this case was exposed to herbicides during his service in Okinawa. Therefore, the articles do not, in and of themselves, support the claim for service connection. Wallin v. West, 11 Vet. App. 509 (1998). Moreover, the Veteran's MOS would not suggest exposure to herbicides. Furthermore, the JSRRC indicates that there is no evidence of the Veteran's exposure to herbicides during service. As this information was procured by sources with the ability to verify whether a solution had the chemical properties of an herbicide agent and whether locations and people were exposed to it, these statements are highly probative. Therefore, the evidence weighs against a finding of herbicide exposure, and the presumption of service connection based on herbicides exposure does not attach. Notwithstanding the foregoing presumption provisions, the Appellant may establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has a current diagnosis of diabetes. The Veteran has stated that he was diagnosed with pre-diabetes prior to separation from service; however, the Veteran's service treatment records do not indicate a diagnosis of, complaint of, or treatment for diabetes during service or within one year following separation from service. As the second element of service connection has not been met, service connection on a direct causation theory is not warranted. The Board recognizes the Veteran's contention that his diabetes resulted from his period of service. Although lay persons are competent to provide opinions on some medical issues, the specific issue of determining the etiology of the Veteran's diabetes falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report observed symptoms, any opinion regarding whether his diabetes was related to his period of service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his diabetes was due to his service. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for diabetes. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Heart Condition The Veteran also contends that his heart condition is due to his period of service. Specifically, the Veteran asserts that his heart condition is the result of exposure to herbicides. As previously noted, the record does not establish that the Veteran experienced herbicide exposure for the purposes of presumptive service connection. Although the record does not sufficiently show that the Veteran was exposed to herbicides such that it would establish service connection for ischemic heart disease on a presumptive basis, the Board will consider all theories of service connection, to include service connection on direct causation basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Turning to the record of evidence, in a June 2009 private medical record, the Veteran had a diagnosis of coronary atherosclerotic heart disease with triple vessel involvement. Therefore, the first element of service connection has been met. The Veteran's service treatment records indicate that in November 1971, he was treated for a chest condition. The examiner noted borderline cardiomegaly as the impression. Therefore, the second element of service connection has been met. Turning to the third element of service connection, a nexus must be established. In July 2017, the Veteran was afforded a VA examination. The examiner stated that the only heart-related issue the Veteran had in service was a November 1971 chest x-ray that showed borderline cardiomegaly. The examiner noted that the chest x-ray of June 1972 was negative with no cardiomegaly found. The examiner explained that borderline cardiomegaly is an imaging finding, not a diagnosis. It sometimes can be associated with a congestive heart failure (CHF) or an athletic heart in a larger person. The examiner noted that the Veteran is 6 foot 2 inches, and he has never had CHF. The examiner stated that it is not associated with ischemic heart disease (IHD) or coronary artery disease (CAD). The examiner went on to state that the fact that the subsequent chest x-ray in June 1972 was negative means the borderline cardiomegaly resolved. The examiner noted that the Veteran's separation examination of June 1972 was negative for any IHD or CAD-related complaints or diagnoses. The examiner further noted that there was no evidence that the Veteran had IHD/CAD until his cardiac catheterization and CABG in 1994. Therefore, the examiner opined that the Veteran's coronary artery disease with CABG and stent placements, are less likely than not incurred in or caused by the illness, event, or injury that occurred during service. In a July 2017 private medical opinion, the examiner stated that the Veteran had been a patient under his care since 1993 and had been diagnosed with coronary heart disease. The examiner stated that he reviewed the Veteran's medical records and history. The examiner noted that the Veteran stated that his military medical records had a finding in 1971 of coronary heart disease. The examiner explained that the Veteran stated that his service treatment records revealed a finding in November 1971, which was borderline cardiomegaly which is hypertrophy of the heart, coronary heart disease. He reported that the Veteran stated that he was unaware of these findings until 1993 when he was seen by the examiner as a patient. The examiner concluded that the Veteran had onset of his coronary heart disease in 1971, and it is more likely than not that the Veteran's coronary heart disease was caused during the time of his military service and deployment. After review of the evidence, the Board finds that the record does not establish a nexus such that service connection is warranted. The July 2017 VA opinion offered detailed explanation that the Veteran's in-service incurrence was isolated in nature and had resolved itself prior to his separation. The opinion references specific findings in the medical records and offered reasons and bases in coming to the conclusion. For these reasons, the Board finds the July 2017 VA medical opinion to be highly probative in nature. While the July 2017 private medical opinion offers a positive nexus opinion, it does not offer reasons and bases to bolster the opinion. Moreover, it is not clear that the examiner reviewed the Veteran's service treatment records rather than solely his records after separation to formulate the opinion. Therefore the private medical opinion is of low probative value for the purpose of adjudicating the claim. As the probative medical evidence of record weighs against a finding that a nexus between the Veteran's current heart condition and his in-service incurrence has been established, service connection for a heart condition is not warranted. The Board recognizes the Veteran's contention that his heart condition resulted from his period of service. Although lay persons are competent to provide opinions on some medical issues, the specific issue of determining the etiology of the Veteran's heart condition falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report observed symptoms, any opinion regarding whether his heart condition was related to his period of service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his heart condition was due to his service. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for a heart condition. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. ORDER Entitlement to service connection for diabetes, to include as due to herbicide exposure, is denied. Entitlement to service connection for heart condition, to include as due to herbicide exposure, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs