Citation Nr: 18112663 Decision Date: 06/21/18 Archive Date: 06/20/18 DOCKET NO. 14-44 465 DATE: June 21, 2018 ORDER Service connection for chronic obstructive pulmonary disease (COPD) (also claimed as bronchitis and pneumonia) is denied. Service connection for prostate cancer is denied. Service connection for diabetes mellitus is denied. Service connection for left hand peripheral neuropathy is denied. Service connection for right hand peripheral neuropathy is denied. Service connection for left foot peripheral neuropathy is denied. Service connection for right foot peripheral neuropathy is denied. Service connection for ischemic heart disease is denied. FINDINGS OF FACT 1. COPD was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 2. Prostate cancer was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 3. Diabetes mellitus was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 4. Peripheral neuropathy of the left hand was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 5. Peripheral neuropathy of the right hand was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 6. Peripheral neuropathy of the left foot was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 7. Peripheral neuropathy of the right foot was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 8. Ischemic heart disease was not shown in service, did not manifest to a compensable degree within one year of service separation, and is not otherwise related to service. 9. The Veteran did not serve in the Republic of Vietnam, did not perform duties on or near the perimeters of military bases in Thailand, and is not shown by evidence of record to have been exposed to herbicide agents (e.g., Agent Orange) in service. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, including based on exposure to herbicide agents (e.g., Agent Orange), have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for prostate cancer, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for diabetes mellitus, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for peripheral neuropathy of the left hand, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for peripheral neuropathy of the right hand, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for peripheral neuropathy of the left foot, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for peripheral neuropathy of the right foot, including based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 8. The criteria for service connection for ischemic heart disease, including as secondary to service-connected disability or based on exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty continuously from August 1954 to August 1977. The Department of Veterans Affairs is grateful for his service. He died in June 2012. The appellant is his surviving spouse, and is recognized as the lawful substitute for the claims the subject of this appeal. See VA 21-0847 dated March 6, 2014; VA Correspondence dated April 12, 2014; see also 38 C.F.R. § 3.1010 (2017). Service Connection for COPD, Prostate Cancer, Diabetes Mellitus, Peripheral Neuropathy of the Left and Right Hands and Left and Right Feet, and Ischemic Heart Disease The appellant contends that all the disabilities the subject of appeal – COPD, prostate cancer, diabetes mellitus, peripheral neuropathy of the left and right hands and left and right feet, and ischemic heart disease – were due to the Veteran’s exposure to Agent Orange in service. In contrast, during his lifetime the Veteran did not contend that he was exposed to Agent Orange in service. Rather, he claimed that COPD was due to respiratory infections in service, and that ischemic heart disease was due to hypertension. He died prior to being examined for his other claims the subject of appeal and never clarified the bases of those claims. The claim for service connection for hypertension was denied, and that denial is not the subject of appeal in substitution. Hence, claim for service connection for ischemic heart disease cannot be supported on the theory of service connection as secondary to hypertension as a matter of law because hypertension is not service connected. 38 C.F.R. § 3.310 (2017). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Diabetes mellitus, organic diseases of the nervous system, and cardiovascular diseases including ischemic heart disease are listed as “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes mellitus, ischemic heart disease, and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Medical treatment records from years prior to his death establish that the Veteran was diagnosed with the claimed COPD, prostate cancer, diabetes mellitus, peripheral neuropathy affecting the hands and feet, and ischemic heart disease. The weight of the evidence is against the presence of COPD, prostate cancer, diabetes mellitus, peripheral neuropathy affecting the hands and feet, or ischemic heart disease in service or within the first post-service year and is against such diseases being present continuously since service. Service treatment records provide no findings of these conditions and none were found upon service separation examination. Medical records do not reflect a diagnosis of any of these conditions for years following service, and provide no finding of onset of these disease processes in service or in years proximate to service. Hence, service connection is not supported for COPD, prostate cancer, diabetes mellitus, peripheral neuropathy affecting either hand or foot, or ischemic heart disease as directly related to service (with the preponderance of the evidence against) or based on presumptions for chronic disease (with evidence not supporting chronic symptoms from service or disability within the first post-service year). 38 C.F.R. §§ 3.303, 3.307, 3.309. The focus of the appellant’s claims, however, is service connection based on asserted herbicide agents (hereinafter also addressed simply as “Agent Orange”) exposure during service, including based on service in Vietnam, duties at or near the perimeter of bases in Thailand, or otherwise based on Agent Orange exposure including when performing duties as an avionics instrument systems technician. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. VA’s Compensation & Pension Service has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5. VA identifies several Royal Thai Air Force Bases (RTAFBs) in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and pursuant to the VA Adjudication Manual, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFBs 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 evidence of daily work duties, performance evaluation reports, or other credible evidence. VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Here, the Veteran during his lifetime did not submit any statement or testimony that he set foot in Vietnam or otherwise went on missions into Vietnam, and did not contend that he had duties which placed him at the perimeter of bases while stationed in Thailand or that he was otherwise exposed to herbicide agents (hereinafter, “Agent Orange”) while stationed in Thailand or at any other time in service. Rather, only the appellant, the Veteran’s surviving spouse, has made assertions of missions into Vietnam and of duties exposing the Veteran to Agent Orange while stationed in Thailand. She has asserted that he told her of missions and duties and that these missions and duties had led him into Vietnam and had otherwise exposed him to Agent Orange. In a May 2018 submission, the appellant contended that the Veteran was exposed to herbicide agents (hereinafter, “Agent Orange”) in multiple ways while in service, including the following: while working near the perimeter at the Takhli air base; while sleeping, showering, and eating near the perimeter of that base, including due to open-air showers and windows being open; through participation in Operation Ranch Hand; and by the Veteran being in Vietnam for a short time, with tasks the Veteran performed in Vietnam including fixing an airplane, ensuring that an airplane was functioning, and escorting bodies. Previously, in a March 2014 statement, the appellant asserted that the Veteran was exposed to Agent Orange that remained on the airplanes while he was working on the airplanes. In a May 2014 submission, the appellant reported that during his service duties as an avionics instrument systems technician the Veteran had frequent temporary duty assignments (TDY), including one to Vietnam “to pick up bodies of U.S. servicemen.” While the Veteran’s service personnel records do reflect missions to or within Thailand including for training and for aircraft retrieval and maintenance, these records do not reflect travel to or duties in Vietnam. Review of the Veteran’s service personnel records reveals that he was not merely an avionics instrument systems technician, but rather was a highly dedicated, experienced, and expert technician recognized in his service for his exceeding specialized skills and abilities, who received many commendations and promotions for his work, and who by the Vietnam Era had achieved senior level positions tasked with supervisory authority over many avionics repair technicians, as a trainer of other technicians and as a supervisor of shops and repair operations. The relevance of this high-level expertise and his senior-level positions are twofold: the Veteran’s time was much in demand and his duties were highly specialized. The commendations repeatedly note the Veteran’s tireless efforts in his field and his extreme level of dedication to his work. For all these reasons, it is exceedingly doubtful that the Veteran would been removed from his highly in-demand, specialized, expert, sought-after work within the service to be sent to Vietnam for duties removing bodies of fellow soldiers. There is no indication in the personnel records that the Veteran was ever tasked with such tasks. Similarly, at her hearing the appellant asserted that the Veteran had been sent all over scavenging instrument panel parts from downed planes. Again, it is unlikely such an in-demand, specialize, expert, sought-after, highly dedicated professional would have been sent into Vietnam for such tasks. The personnel records do reflect special missions including secret missions, but, as noted, they are now documented in the Veteran’s personnel records and reflect only missions to Taiwan or Thailand or within Thailand, not missions to Vietnam. The appellant has asserted that the Veteran’s military personnel records clearly show Vietnam service. However, while the Veteran’s service personnel records contain duty records reflecting “Vietnam R” from May 29, 1969 to March 9, 1970, the Veteran’s subsequent service personnel records inform that he was actually stationed at the Takhli Royal Thai Air Base, Thailand during that interval. Thus, “Vietnam R” may have represented Vietnam region, or may have been orders that were changed. Regardless, the service personnel records establish stationing in Thailand during that interval rather than Vietnam. There is a TDY in the Veteran’s 201 file from April 23, 1969 to May 20, 1969, with the 4417 Combat Crew Training Squadron (CCTS) Instrument Section. Accordingly, an inquiry was sent to the U. S. Army and Joint Services Records Research Center (JSRCC) (formerly the U.S. Armed Service Center for Research of Unit Records (USASCRUR)). However, a reply from the Defense Personnel Records Information Retrieval System (DPRIS) in September 2014 informed that they had no record of a TDY of the 4417th CCTS into Vietnam during the January to June of 1969 interval. Hence, because none of the Veteran’s service personnel records support such a TDY into Vietnam, this does not support the Veteran having set foot in Vietnam. Thus, service records do not support service in Vietnam or a TDY into Vietnam. Service records also do not support duties at or near the perimeter of bases while in Thailand. The appellant has also submitted copies of favorable decisions of the Board of Veterans’ Appeals (Board) in other Veterans’ cases. The appellant asserts that these other cases involved other veterans being exposed to Agent Orange, with evidence relied on in those cases including pictures of bases where exposures occurred and information about duties of those other Veterans. However, decisions by the Board are not precedential, and the Board’s decision for each case is fact-specific and may be subject to variance in its application of specific law based on facts and circumstances unique to an individual case. See 38 C.F.R. § 20.1303 (2017); Hudgens v. Gibson, 26 Vet. App. 558, 566 (2014). The Board is thus not required to be consistent in its decision-making. Id. The Board does not here consider these submitted other Board decisions pertaining to other claimants to be probative for purposes of the Board’s adjudication of the appellant’s claims, since these other decisions were made in the context of other evidence and circumstances of which the undersigned cannot be fully aware, not having reviewed the files of those other veterans. The Board finds that the preponderance of evidence presented is against the likelihood that the Veteran was stationed in Vietnam, had missions in Vietnam, or otherwise set foot in Vietnam, and is also against the Veteran having duties at or near the perimeter of bases when stationed in Thailand. The record contains no indication that aviation instrumentation repair facilities at which the Veteran worked were located at or near the perimeter of military bases, nor would it appear reasonable to locate such valuable operations at the perimeter which would of necessity be the least protected area and most susceptible to attack. The appellant has presented no evidence supporting a likelihood that the Veteran’s duties as an avionics systems technician or as a supervisor took him into Vietnam, or supporting these duties being at or near the perimeter of a base in Thailand. In light of the considerable body of service treatment and service personnel records documenting the Veteran’s stations and missions while in service, with none of these supporting the appellant’s assertions of duties exposing the Veteran to Agent Orange or missions sending him into Vietnam, and in light of the highly valued and specialized work of the Veteran while in service most likely effectively precluding him from missions into Vietnam to pick up bodies of fallen soldiers (as the appellant has alleged), the Board finds that the preponderance of the evidence is against the likelihood of such missions into Vietnam or duties at or near the perimeter of bases in Thailand. While the appellant is competent to testify to what she may have been told by her spouse, the Veteran, about actions or missions in service, such statement may have been told in other contexts for other purposes, and hence may not be reliable accounts of actions of the Veteran. The Board finds more probative the countervailing service personnel records and service treatment records which do not place the Veteran in Vietnam and do not support perimeter duties while the Veteran was in Thailand. Accordingly, because the Board finds that the Veteran is not entitled to a presumption of exposure to Agent Orange and that the weight of the evidence is otherwise against Agent Orange exposure in service, the Board concludes that the claims cannot be support based on Agent Orange exposure. 38 C.F.R. §§ 3.307, 3.309. The appellant has not contended and the evidence does not otherwise support other theories of entitlement. The claimed disabilities are not asserted to have developed in service or to be otherwise directly causally related to service other than based on claimed Agent Orange exposure, and the preponderance of the evidence is against any such direct link to service. 38 C.F.R. § 3.303. Rather, the claimed disabilities have not been shown to have been present until years following service. Hence, service-connected on a first-year-post-service presumptive basis is also not warranted for claimed heart disease. 38 C.F.R. § 3.307, 3.309. Accordingly, the evidence preponderates against the claims on all theories presented. 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 appellant’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Lana K. Jeng Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter, Counsel