Citation Nr: 18110010 Decision Date: 06/11/18 Archive Date: 06/11/18 DOCKET NO. 15-15 205 DATE: June 11, 2018 ORDER Service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure during service, is denied. Service connection for bilateral lower extremity peripheral neuropathy (claimed as bilateral numbness of the feet), to include as secondary to claimed diabetes mellitus and/or secondary to herbicide exposure during service, is denied. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II, and peripheral neuropathy of the bilateral lower extremities, did not manifest during service or within one year therefrom, but rather many years after discharge. 2. The Veteran was not exposed to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, to include as secondary to herbicides during service, have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy (claimed as bilateral numbness of the feet), to include as secondary to claimed diabetes mellitus and/or secondary to herbicide exposure during service, have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1966 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2017. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for diabetes mellitus, type II, will be presumed. See 38 C.F.R. § 3.309(e). With regard to early-onset peripheral neuropathy, service connection will also be presumed if such began within the one year following the last date on which the veteran was exposed to an herbicide agent during service. See 38 C.F.R. § 3.307(a)(6)(ii). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i). Regulations also provide that service connection may be presumed for diabetes mellitus that manifests to a compensable degree within one year of separation from active service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. On appeal, the Veteran has contended that he was exposed to herbicides during his period of service and therefore service connection for his diabetes mellitus is warranted; further, respecting the peripheral neuropathy, he avers on appeal that such is either directly related to herbicide exposure during service or as secondary to his diabetes mellitus. After a review of the claims file, the evidence demonstrates that the Veteran has diabetes mellitus, type II, and bilateral peripheral neuropathy of the lower extremities. The Veteran’s treatment records are void of any evidence of complaints, treatment or diagnosis of diabetes mellitus and/or peripheral neuropathy of his lower extremities during service or for many years thereafter; in fact, in his October 2017 hearing, the Veteran specifically indicated that his neuropathy began approximately 20 years prior to and his diabetes was diagnosed 10 years prior to his hearing, placing onset of his peripheral neuropathy and diabetes mellitus approximately 30 and 40 years, respectively, after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Therefore, this case turns on the issue of whether the Veteran was exposed or is presumed exposed to herbicide agents as a result of his military service. The Board finds that he is not, and therefore, his claims must be denied. During his hearing on appeal, the Veteran testified that he was an aircraft mechanic during military service and that he was stationed on Midway Island. While stationed on Midway Island, the Veteran asserted that he was exposed on a second-hand basis to herbicides because he worked on aircraft that came from the Republic of Vietnam and the Republic of Thailand, some of which were used in the spraying of—or were sprayed by—herbicide agents; he indicated that he worked on C-130’s, C-133’s, and C-141’s. Furthermore, during his hearing, the Veteran testified that he had a 30-day temporary duty assignment (TDY) to an air base, Tan Son Nhut, in the Republic of Thailand; he, however, denied ever working guard duty or security at the perimeter of the base, and also denied ever witnessing the spraying of any herbicide agents during his period in Thailand. Also, in the Veteran’s December 2012 notice of disagreement, he stated that he served as an aircraft mechanic on Midway Island, although he had TDY to Thailand in 1969; he also stated that he worked on all types of aircraft that came out of Vietnam, some of which “distributed the Agent Orange defoliant.” However, in a January 2015 telephone conversation with VA documented in a Report of General Information, VA Form 27-0820, the Veteran denied ever going to Thailand or Vietnam, although he worked on aircrafts that came from Thailand and Vietnam while on Midway Island. He specifically noted in that conversation that he worked on C141, C-133, and C124 aircraft, which distributed Agent Orange and led to his exposure; he worked on both Air Force and Naval aircraft. The Board has reviewed the Veteran’s service personnel records; those records are void of any evidence or documentation of any TDY to the Republic of Thailand. Furthermore, the Board takes notice that Tan Son Nhut was an air base in the Republic of Vietnam, not in the Republic of Thailand. In short, aside from the Veteran’s inconsistent statements of record regarding TDY in Thailand, he has proffered no evidence to show that he actually was in Thailand on TDY at any time during his period of service. In fact, when asked to state where he was on TDY in Thailand, the Veteran noted an air base in Vietnam instead, further eroding the credibility of his assertion of TDY. The Board consequently finds the Veteran’s statements regarding TDY in Thailand to be not credible in this case. Given the Board’s finding as to the credibility of statements regarding TDY in Thailand, the Board also need not address the validity or any such exposure in Tan Son Nhut, as the Veteran’s presence at that air base was predicated on his TDY assignment in Thailand. Nevertheless, the Board also notes that there is no evidence of record to corroborate that the Veteran ever had “boots on the ground” in the Republic of Vietnam at any time during his period of service, even if the Board were to assume that his TDY to Thailand occurred in this case. See 38 C.F.R. § 3.307(a)(6)(iii); see also Haas v. Peake, 525 F.3d 1168, 1197 (2008), cert. denied 129 S. Ct. 1002 (2009) (a veteran must have been physically present on the landmass or inland waters of the Republic of Vietnam at some point during his service in order to establish qualifying service in Vietnam as to the presumption of exposure to herbicides). Further, even if the Board were to assume that the Veteran had TDY in Thailand, the Board still could not find that the Veteran was exposed to herbicides based on the Veteran’s own admissions and testimony in this case. Specifically, although the M21 Manual provides that herbicide agents were used at Royal Thai Air Force Bases during the Vietnam era, such exposure to herbicide agents is only to be conceded if the Veteran was a security policeman; security patrol dog handler; member of the security police squadron; or, “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.” See M21-1MR, Part IV, Subpart ii.1.H.5.b. In the Veteran’s hearing testimony, he specifically denied performance any security activities and also specifically denied any work on the perimeter fences of the Thailand air base. Thus, even if the Board were to find the Veteran credible that he had TDY in Thailand, a finding of exposure to herbicide agents could not be found in this case, given that the Veteran did not have the requisite contact with the perimeter fence, by his own admission and testimony. Instead, the thrust of the Veteran’s contentions in this case are centered on the claim that he worked with aircraft that distributed herbicide agents and/or second-hand exposure to aircraft that had been in Thailand and/or Vietnam and therefore would have been exposed to herbicide agents by virtue of their presence in those countries at some point in time. The Board acknowledges that VA presumes exposure to herbicide agents for those servicemembers and veterans who “regularly and repeatedly operated, maintained, or served onboard” the C-123 aircraft that are known to have been used to spray herbicide agents during the Vietnam era; such presumptive exposure is extended in this case to flight, ground maintenance or medical crew members of those aircraft, and include Air Force members and subsequent reservists who operated and maintained those aircraft after the end of the Vietnam era. See 38 C.F.R. § 3.307(a)(6)(v). The Veteran has named 4 specific models of aircraft that he serviced during his period of service—including: C-124, C-130, 1-133, and C141 models—although none of those models are the noted C-123 aircraft models that are known to have sprayed herbicide agents during the Vietnam era. The Board further acknowledges the Veteran’s statements that some of the aircraft he worked on during service distributed herbicide agents. However, the Veteran also testified in his October 2017 hearing that “there was a lot of equipment on the airplane” that he did not know what it was used for, particularly on the C-130 and C-133 models, when he was directly asked whether he had any recollection of seeing any equipment outfitted on the aircraft he serviced that would have been used to spray the land with herbicides. Based on these statements and the fact that the Veteran did not specifically indicate that he ever worked on the C-123 model aircraft in this case, the Board cannot find that the Veteran is presumed exposed to herbicide agents based on his military occupational specialty of a ground-based aircraft mechanic in this case. In short, the Veteran has not demonstrated that he worked on the specific type of aircraft that is due the presumption in this case. Finally, although the Veteran clearly worked on other model aircraft that was present in Vietnam and/or Thailand, there is no presumption of exposure on that basis. The Veteran testified that was unaware of whether the aircraft that he was working on was washed prior to him working on it during service or not. Regardless of whether it was not washed, having contact with an object that was present in the Republics of Vietnam or Thailand at some time during the Vietnam era is not sufficient evidence to substantiate actual exposure in this case. As the record does not show that exposure to herbicides occurred, or may be presumed, the Board must find that the in-service element of service connection has not been met and the claims for service connection for diabetes mellitus, type II, and peripheral neuropathy of the lower extremities must be denied. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board also need not reach the question of secondary service connection in this case, as his service connection for diabetes mellitus is denied and therefore service connection on that basis with respect to the peripheral neuropathy issue is also denied. See 38 C.F.R. § 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel