Citation Nr: 18126659 Decision Date: 08/15/18 Archive Date: 08/15/18 DOCKET NO. 17-37 169 DATE: August 15, 2018 ORDER 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure, is denied. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, is denied. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, is denied. FINDINGS OF FACT 1. The preponderance of the probative evidence shows that the Veteran did not have service in Vietnam during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The preponderance of the probative evidence shows that the Veteran did not have service at a Royal Thai Air Force Base as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise near the air base perimeter during the Vietnam era, and was not exposed to an herbicide agent, including Agent Orange, during his service. 3. The preponderance of the probative evidence does not demonstrate that the Veteran’s currently diagnosed diabetes mellitus manifested during, or as a result of, active military service, or manifested to a compensable degree within one year of service discharge. 4. The Veteran’s peripheral neuropathy of the bilateral lower extremities has not been shown to have begun during active service, and was not caused or aggravated by any incident of his active service. 5. The Veteran’s peripheral neuropathy of the bilateral lower extremities was not caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, to include as due to Agent Orange exposure, have not been met. 38 U.S.C. §§1101, 1110, 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities, including as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1968. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Jurisdiction has since been transferred to the RO in Columbia, South Carolina. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may be presumed for those exposed to particular herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including diabetes mellitus, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307 (a)(6)(iii) (2017). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). Effective June 2015, VA published an interim rule establishing a presumption of exposure to certain herbicide agents for Veterans 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 a herbicide agent (Agent Orange) during the Vietnam era and later develop an Agent Orange presumptive condition. 80 Fed. Reg. 35246-01 (June 19, 2015) (currently codified at 38 C.F.R. § 3.307 (a)(6)(v)). Notably, the designation of “UC-123” indicates that the particular aircraft was equipped with spray apparatus. See Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange Contaminated C-123 Aircraft 10 (2015). The Veteran alleges that he came into close contact with fighter jets, which he contends had possibly flown through herbicide agents, but there is no specific allegation that he came in contact with C-123 aircraft. Therefore, the presumption of § 3.307(a)(6)(v) does not apply in this case. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (“M21-1”). 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. 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. See M21-1, Part IV.ii.1.H.5.a. A section of this manual addresses herbicide exposure in Thailand during the Vietnam Era. (In this regard, the sense of the word “herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation.) The manual directs rating specialists to concede herbicide agent exposure to those who served in the U.S. Air Force at a number of Royal Thai Air Force Bases. 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). Despite the foregoing, when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). In addition, certain listed chronic diseases, such as diabetes mellitus, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for diabetes mellitus is denied. The Veteran contends that his diabetes mellitus is a result of Agent Orange exposure while serving during the Vietnam era on the Royal Thai Air Force Base of Ubon. He reports that he was stationed at the Ubon air force base in Thailand where he worked as an aircraft mechanic. During the May 2017 Regional Office hearing, the Veteran testified that he took trips to Vietnam between two and three times per month while he was stationed in Thailand. He further stated that he may have come into contact with Agent Orange while walking near the perimeter of the Ubon base when traveling to the local town. The Veteran also stated that he believed Agent Orange was sprayed on the planes he worked on during service. Turning to the evidence of record, there are medical treatment records that indicate a diagnosis of diabetes mellitus. See Private Treatment Record dated February 13, 2014. Therefore, there is competent medical evidence establishing that the Veteran has a current diagnosis of diabetes mellitus during the pendency of this appeal. Resolution of the Veteran’s appeal turns on whether his current disability is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Here, the evidence shows that the Veteran has a current diagnosis of diabetes mellitus, an enumerated disease associated with herbicide agent exposure under 38 C.F.R. § 3.309 (e). He does not contend that this condition had its onset in service or within a year of service, but rather asserts that he was first diagnosed in October 2012. See June 2013 VA Form 21-526. Indeed, the service treatment records are silent for any complaints, diagnoses, or treatment related to diabetes mellitus. As there is no showing that his diabetes mellitus manifested to a degree of 10 percent within a year from separation from service, the presumption of service connection under those circumstances does not apply. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, as the Veteran does not contend, and the evidence of record, including service treatment records, does not otherwise show that his diabetes mellitus had its onset in service, service connection on a direct basis is not warranted. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, at primary issue in this case is the determination of whether the Veteran is entitled to a presumption of exposure to herbicide agent based on service during the Vietnam era. The Veteran’s DD Form 214 does not reflect Vietnam service. It does illustrate his military occupational specialty as an aircraft mechanic and his branch as Air Force. The Board acknowledges that the Veteran’s DD 214 shows he is a recipient of the Vietnam Service Medal. However, this does not constitute proof of “in country” Vietnam service for VA purposes, as these medals were awarded to personnel who did not serve in Vietnam. See Haas, supra. The Veteran is not entitled to the presumption of service connection based solely on receipt of the Vietnam Service Medal. Proof of service on the landmass or in the inland waterways of the Republic of Vietnam must be shown. Id. at 1197. His military personnel records show that he was, in fact, an aircraft mechanic who was stationed at Ubon from November 1965 through November 1966. In a Memorandum for the Record, VA confirmed that the Department of Defense list shows that tactical herbicides were used in Thailand from April 2, 1964 through September 8, 1964. The location was identified as the Pranbrui Military Reservation, not near any Royal Thai Air Force Base. VA confirmed that a letter from the Department of the Air Force’s letter shows that there are no records to indicate that there was any herbicide storage in Thailand, aside from the Pranbrui Military Reservation. A May 2014 formal finding indicates a lack of information required to corroborate the Veteran’s allegation of exposure to herbicide agent while in service. After considering the evidence of record, including the evidence showing the Veteran was not in Vietnam or its inland waterways at any point, the Board finds that the presumption is not warranted and the evidence does not otherwise show by competent and credible evidence that he was exposed to herbicide agent in service. The evidence does not show that he was present on the landmass or the inland waters of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(iii); Haas, supra. There is also no evidence that he was exposed to herbicide agents while in Thailand. He was at one of the Royal Thai Air Force Bases, but nothing in his military personnel records indicates, nor does the Veteran contend that he was a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter. Additionally, the VA Memorandum confirmed that herbicide agents were not sprayed during the time frame when the Veteran was stationed at Ubon, nor were they stored at that location. Concerning the Veteran’s reports regarding his stops in Vietnam, there is no evidence to support his claims, other than his own lay statements regarding his monthly trips. The Board acknowledges that he submitted two photographs, which he contends is proof of his presence in Vietnam, specifically Saigon. However, the Board finds these photographs lack probative value to support the Veteran’s contention of exposure to herbicide agents as they do not (1) identify the date these photographs were taken (2) identify the aircraft (3) identify the area of Vietnam or (4) prove the Veteran was present in Vietnam. Given the absence of proof to corroborate the Veteran’s service in Vietnam, his vague belief that he may have been exposed to herbicide agent while in Thailand, and the official records that confirm that he did serve in the Air Force, but he did not serve near the perimeter of an air base in Thailand, the weight of the evidence is against the conclusion the Veteran was exposed to herbicide agents. For these reasons and bases, the Board finds that the weight of the lay and medical evidence is against this claim. As exposure to an herbicide agent is not demonstrated, presumption of service connection based on exposure to an herbicide agent is not indicated. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for diabetes mellitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for peripheral neuropathy of the bilateral lower extremities is denied. The Veteran also seeks service connection for peripheral neuropathy of the bilateral lower extremities, which he contends is related to his diabetes mellitus. There is no dispute that the Veteran has a current diagnosis of peripheral neuropathy of the lower extremities. See VA Treatment Record dated June 18, 2013. On the Veteran’s June 2013 VA Form 21-526 (Application for Compensation or Pension), he indicated that he desired to establish service connection for peripheral neuropathy as secondary to his diabetes mellitus. Service connection may also be granted for disability which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). As discussed above, service connection for diabetes has been denied by the Board. As service connection has not been granted for diabetes mellitus, service connection cannot be granted for peripheral neuropathy as secondary to diabetes mellitus. 38 C.F.R. § 3.310. Further, as none of the evidence indicates, nor does the Veteran contend that his peripheral neuropathy is due to his period of active service, the Board finds that service connection must also be denied on a direct basis. As such, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for peripheral neuropathy of the bilateral lower extremities. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel