Citation Nr: 18101191 Decision Date: 05/01/18 Archive Date: 05/01/18 DOCKET NO. 16-23 476 DATE: May 1, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER Service connection for a heart disability is denied. Service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death, claims for entitlement to service connection for a heart disability and for diabetes mellitus, type II, were pending. 2. The Veteran’s exposure to an herbicide agent during his active duty service is not shown. 3. The preponderance of the evidence is against a finding that a heart disability, including coronary artery disease and congestive heart failure, manifested during service or within the first post service year, or were otherwise related to service. 4. The preponderance of the evidence is against a finding that diabetes mellitus, type II, manifested during service or within the first post service year, and there is no competent evidence suggesting the condition is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2017). 2. The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 to November 1975. The Veteran died in January 2016, and the Appellant is his surviving spouse. The Appellant has been substituted as the claimant in this case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Appellant and the Veteran’s daughter testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. In June 2017, the Board remanded this matter for additional evidentiary development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2) (2012). Service Connection The Appellant is seeking service connection for the Veteran’s heart disability and diabetes mellitus, type II. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include diabetes mellitus and cardiovascular-renal disease may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active service in the Vietnam era, certain diseases, including diabetes mellitus, type II, and ischemic heart disease (including coronary artery disease) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. A veteran who served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Additionally, a veteran who served in certain units on or near the Demilitarized Zone (DMZ) in Korea from April 1, 1968 to August 31, 1971 may also be presumed to have been exposed to herbicide agents. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, service connection may also be established with proof of actual direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Appellant contends that the Veteran was exposed to an herbicide agent during his military service. He is not shown to have served in the Republic of Vietnam or near the Korean DMZ, but did serve for a period of time in Thailand. Under the procedures outlined in the M21-1MR, if a Veteran served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang during the Vietnam Era as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluations, or other credible evidence, then herbicide exposure may be conceded on a direct or facts-found basis. See VBA Manual M21-1, IV.ii.1.H.5.b. In April 2015, the RO obtained a report from the Joint Services Records Research Center (JSRRC) indicating that it could not confirm that the Veteran was exposed to Agent Orange/herbicide agents during his military service. Specifically, the Veteran was found not to have met the standards for herbicide exposure while he was in Thailand. In June 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent ("Agent Orange") during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(v). The new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, "regularly and repeatedly operated, maintained or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. The Veteran’s service personnel records reflect that he served in the Air Force from April 1954 to November 1975, that his specialty number was 46250, and that his primary title during this time frame was Weapons Mechanic and Weapons Flight Chief. Records also show that the Veteran served with the 355th Munitions Maintenance Squadron at the Takhli Royal Thai Air Force Base in Thailand from December 1966 to November 1967; and that he frequently worked on the M-61 gunnery system. He subsequently served as a training technician later in his career. Although the evidence indicates that the Veteran regularly and repeatedly maintained aircraft during his service during the Vietnam era and also crossed the perimeter when departing the base, there is no indication that any of these aircraft were the C-123s discussed in 38 C.F.R. § 3.307(a)(6)(v). The regulations are very specific in that this is the only qualifying aircraft. The Veteran's units of assignment are not listed among those currently recognized in VA's current list of military personnel who had regular and repeated exposure to contaminated C-123s. A January 2018 RO memorandum noted that the Veteran served as an AFSC 46250 Weapons Mechanic installing and inspecting M-61 Gunnery systems and loading and unloading conventional munitions on F105 aircraft stationed at Takhli Air Force Base from December 1966 to November 1967 with the 354th Tactical Fighter Squadron and the 355th Munitions Maintenance Squadron. The report further noted that there were no OCH C-123s at Takhli Air Force Base during this time frame, and also that there were no OCH C-123s present while the Veteran was stationed at the Osan Air Base (March 1965 to July 1965), or during his time at the Itazuke Air Force Base (1970 to 1973) in Japan. See M21-1, Part IV.ii.1.H.3. Under these circumstances, the Veteran is not shown to have been exposed to an herbicide agent during his military service. He is not shown to have duties involving the perimeter of the air base. Moreover, the record does not show that he would have worked on OCH C-123s. Accordingly, the presumption of service connection based upon the in-service exposure to an herbicide agent is not warranted. Based upon a longitudinal review of the evidence of record, the Board also concludes that the preponderance of the evidence is against a finding that the Veteran had diabetes or a heart disability related to his military service, including any in-service herbicide exposure. A review of his service treatment records revealed in-service complaints of chest pain. Specifically, the Veteran sought treatment for chest pains in December 1970 and November 1972. An EKG examination, performed in November 1972, revealed a diagnosis of sinus bradycardia. On the August 1975 report of medical history at separation, the Veteran responded affirmatively to having shortness of breath, pain or pressure in chest, and chronic cough. He denied palpitation or pounding heart, and indicated he did not know if he had heart trouble or high blood pressure. The examiner noted the complaints concerning shortness of breath, chest pain and chronic cough were attributed to smoking and that he has never been treated for heart trouble or blood pressure. It was also noted that his blood pressure was normal on examination at that time. No diagnosis of or complaints concerning diabetes mellitus were shown during the Veteran’s miliary service, or the first post service year. His August 1975 separation examination was silent The first post service treatment report noting a diagnosis of diabetes mellitus or a heart disability was dated in November 2010, 35 years after his separation from military service. There is no competent evidence linking either of these conditions to the Veteran’s military service. An August 2017 VA medical opinion concluded that his heart disabilities, including coronary artery disease and congestive hearing failure, were less likely as not related to his military service. In support of this opinion, the VA examiner noted that the Veteran’s in-service episodes of chest pain during service were less likely as not due to a heart condition. The VA examiner noted that the Veteran sought treatment on multiple occasions for peptic ulcer disease and a respiratory condition during service, and that these conditions were the likely the cause of his in-service chest pain. The VA examiner further noted that the Veteran’s post service heart symptoms did not begin until 2014, when he had a myocardial infarction and subsequent congestive heart failure. As for his diabetes mellitus, the Board notes that a medical opinion was not obtained concerning this claim. However, there is no competent and credible evidence of diabetes mellitus during the Veteran’s military service or for 35 years thereafter, and no competent evidence suggesting his diabetes mellitus is related to service. In the absence of competent and credible evidence of an in-service event, an opinion is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). To the extent the Appellant believes the Veteran suffered from diabetes mellitus or a heart disability during service or that such conditions are related to service, as a lay person she has not been shown to possess specialized training sufficient to render such an opinion. In this regard, the diagnosis of diabetes mellitus and a heart disability requires medical testing and training to determine. Accordingly, the Appellant’s opinion as to the diagnosis and/or etiology of either of these conditions is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, the preponderance of the evidence is against the Appellant’s claims for service connection for diabetes mellitus and for a heart disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Appellant’s claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates, Counsel