Citation Nr: 19157698 Decision Date: 07/24/19 Archive Date: 07/24/19 DOCKET NO. 08-04 719 DATE: July 24, 2019 ORDER Service connection for a heart disability, to include coronary artery disease (CAD) and/or ischemic heart disease (IHD), claimed as due to exposure to herbicide agents and insecticides, is denied. Service connection for type II diabetes mellitus, claimed as due to exposure to herbicide agents and insecticides, is denied. FINDINGS OF FACT 1. The Veteran did not serve in or visit the Republic of Vietnam during, or because of, his military service. 2. The Veteran was not exposed to Agent Orange during his military service. 3. The Veteran’s CAD and/or IHD and diabetes mellitus are not related to his service (to include herbicide agents and insecticides exposure), began during his service, or began within one year after his separation from active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a heart disability, to include CAD and/or IHD, claimed as due to exposure to herbicide agents and insecticides heart disability, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria to establish service connection for type II diabetes mellitus, claimed as due to exposure to herbicide agents and insecticides heart disability, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1966 to May 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2009, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board; a copy of the transcript has been associated with the record. In a January 2013 letter, the Board apprised the Veteran that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. He was given an opportunity to request another hearing before a different Veterans Law Judge. In a response received later in January 2012, the Veteran indicated that he did not wish to appear for another hearing. By way of procedural background, in a December 2011 decision, the Board denied the Veteran’s service connection claim for diabetes mellitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2012 Memorandum, the Court vacated the December 2011 Board decision, and remanded the case to the Board for further proceedings consistent with its decision. In March 2013, the Board remanded both issues on appeal for further development which was completed. In a June 2014 decision, the Board denied both issues on appeal. In an October 2015 Memorandum Decision, the Court vacated the Board decision, and remanded the claims for readjudication. The issues were again remanded by the Board in January 2017 and May 2018. Service Connection Laws and Regulations 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; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Heart Disorders and Diabetes The record established that the Veteran has current disabilities, diagnosed as diabetes mellitus and coronary artery disease with aortic stenosis, the latter included in the generally accepted medical definition of IHD. See 38 C.F.R. § 3.309 (e) (2018). Therefore, the first element of service connection is met and will not be further discussed. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). These disorders are among those diseases for which a presumption of service connection is available if a veteran was exposed to certain designated herbicide agents in service. Id. , 38 C.F.R. § 3.307 (a)(6) (2018). Not all herbicide agent exposure qualifies for presumptive service connection for the Veteran’s diabetes and heart disorders. This regulation provides that a qualifying herbicide means a chemical of the type that was used in support of U.S. and allied forces in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. This specifically includes the chemical compounds and mixtures known as 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. Government reports occasionally refer to the designated herbicides as “tactical” herbicides because of their use in hostile areas against an enemy as opposed to “commercial” herbicides more widely used in agricultural and landscaping applications. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975; in a unit operating near the demilitarized zone in Korea from April 1, 1968 to August 31, 1971; or in Air Force service involving operation or maintenance of C-123 aircraft known to have been used in spraying designated herbicide agents; is presumed to have been exposed to the designated herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). The Veteran does not contend and the record does not show service under these circumstances. Therefore, the presumption of exposure is not available. Instead, the Veteran contends that his current IHD and type II diabetes mellitus are due to exposure to herbicide agents and insecticides during his military service. Specifically, he has alleged that his duties as a cook in Fort Rucker, Alabama, involved providing meals to people training in the field, and that certain areas were sprayed with Agent Orange during this time. He has also asserted that the helicopters that he was transported in were covered with Agent Orange and that trucks he rode in drove through areas that had been sprayed with Agent Orange. See the Veteran’s August 2006, November 2007, May 2009, and March 2010 statements, February 2008 substantive appeal (VA Form 9), and the May 2009 hearing transcript, generally. He also indicated witnessing a helicopter spraying Agent Orange in an area near Fort Rucker. See the hearing transcript 5. The Veteran testified that he saw barrels of numbered 55-glalon barrels containing chemicals. Id. at 4. The Veteran also reported that a representative of his Congressman informed him that there are published government reports of the use of the designated herbicides at Fort Rucker. The Veteran’s service treatment records do not show any complains, diagnoses, or treatment for a heart disroder or for diabetes. The medical evidence also does not demonstrate that these disorders first manifested within one year after his separation from active service. The record contains the following information obtained by the RO relevant to the use of designated herbicide agents at Fort Rucker during the Veteran’s tour of duty from June 1966 to May 1968. In October 2006, the National Personnel Records Center reported that a record review showed no evidence of exposure of the Veteran to herbicide agents. Service personnel and treatment records are silent for any participation by the Veteran in handling or spraying operations of any form of herbicide and pesticide or treatment for any acute exposure to the skin, digestive, or respiratory systems. However, preparing and serving meals in the field on the training base and riding in trucks or helicopters to sites in the field are reasonably consistent with the Veteran’s duties. In December 2009, the Joint Services Record Research Center (JSRRC) found no evidence of “spraying, testing, storage, or usage of Agent Orange at Fort Rucker” during this period of service. In a January 2008 memorandum, an official of the VA Compensation and Pension Policy service noted his review of a Department of Defense list of 71 locations where Agent Orange was used outside of Vietnam. He noted that Fort Rucker was not on that list. The list itself has not been associated with the claims file. The official noted that the list of sites outside Vietnam did not contain names of participants or contain any references to routine base maintenance activities, such as brush clearing or weed killing. He noted that the Department of Defense advised that small-scale herbicide applications had not been compiled into a list, and, with regard to the Veteran’s reference to clearing the landing zones, there were no records of small-scale brush or weed clearing activity around the base and no way to know the chemical content of such claimed herbicide use. In October 2011 and June 2014, the Board found that the Veteran was not exposed to the designated herbicides, finding that the weight of the evidence from the official government sources outweighed the generalized lay assertions provided by the Veteran. As the Board found that there was not an approximate equal balance of evidence for and against the claimed exposure, the Board declined to apply the “benefit of doubt rule.” 38 U.S.C. § 5107 (b) (2012). In Memorandum Decisions in October 2012 and October 2015, the Court vacated the decisions. The Court found that the Board did not provide adequate reasons and bases for declining to apply the benefit of doubt rule, failed to address the consistency of the Veteran’s statements, improperly cited a statement by the Veteran that was not found in the record, and applied probative weight to the Department of Defense negative evidence that there was no list of small-scale herbicide applications. In October 2015, the Court also found that the Board should reconsider whether a VA medical examination was warranted in view of the Veteran’s statements of exposure to herbicides. The issues were again remanded in January 2017 in order to obtain additional evidentiary development to determine whether the Veteran was exposed to the designated herbicide agents or any other form of commercial herbicide during service at Fort Rucker in 1966-68 and, if so, whether his diabetes mellitus and ischemic heart disease were caused by that exposure. Specifically, the Board requested VA examinations and opinions that considered exposure to tactical and commercial herbicides. The Board also requested that the AOJ obtain information from the Armed Forces Pest Management Board (AFPMB) on the types of herbicides that were available for use by base management personnel for clearing landing zones and training areas at Fort Rucker in 1966-1968. In June 2017, a VA examiner provided negative opinions based on his finding that the Veteran’s exposure to insecticides was undocumented. In a November 2017 correspondence, the AFPMB noted that their records “do not include details about Fort Rucker’s installation vegetation management practices,” but acknowledged that “[p]pesticides applied on installations during the period of service of this veteran would have been commercial products registered in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act.” The AFPMB went on to state that “[t]he herbicides used at Fort Rucker may have contained the chemical compounds known as 2,4-D and 2,4,5-T and, although unlikely, possibly Picloram.” The AFPMB also noted that “[t]actical herbicides, such as Herbicide Orange, were never transported through, used or tested at, disposed of, or stored on Fort Rucker.” In a January 2018 memorandum, the AOJ found no evidence that Agent Orange was used while the Veteran was stationed at Fort Rucker, but did find that “commercial pesticides registered in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act” were used during that time. In a February 2018 addendum opinion, the June 2017 VA examiner opined that the heart disease and diabetes were “less likely than not” incurred in or caused by the claimed in-service injury, event or illness.” The examiner quoted the AOJ’s findings as the rationale for this opinion. The Board finds that both the June 2017 and the February 2018 VA opinions lack probative value. The June 2017 opinion was obtained prior to the AFPMB report and the AOJ finding that insecticides were used at Fort Rucker during the time the Veteran was stationed there. The February 2018 addendum implicitly acknowledges insecticide use at Fort Rucker, but provides no rationale for the negative opinion. Pursuant to the Board’s most recent remand in May 2018, a new medical opinion was obtained in January 2019. The examiner noted that the claims file had been reviewed. It was then opined that the Veteran’s diabetes and CAD were not related to service, to include the alleged exposure to insecticides. In support of this opinion, the examiner noted that, as documented in the email sent by the AFPMB, “Tactical herbicides, such as Herbicide Orange, were never transported through, used or tested at, disposed of, or stored on Fort Rucker.” The examiner further indicated that Agent Orange had been the herbicide that had been associated with diabetes and CAD. According to the examiner, each compound/herbicide had specific effect in the body due to the organ that they affected and therefore, not all herbicides produced the same effect or toxicity. As per that document, during the time of the Veteran’s service, pesticide application in Fort Rucker may have contained two main chemical compounds: 2,4 D (2,4-Dichlorophenoxyacetic acid) and 2,4,5-T (2,4,5-Trichlorophenoxyacetic acid) and unlikely Picloram. According to the Department of Defense, Pest Management Program, 1964, pesticide application (including herbicides) required direct supervision of trained and certified personnel. The examiner further explained that, even if the Veteran was exposed to significant amounts of these pesticides, they did not cause diabetes or heart problems. Instead, the examiner noted that 2,4-Dichlorophenoxyacetic acid was known to cause fertility problems and this depended on the amount and duration of the exposure. Further, 2,4,5-Trichlorophenoxyacetic acid was shown to cause neurotoxicity and cancer. Picloram produced mild toxicity in the eyes and skin as acute effect, with no chronic effect observed. The Board finds that the January 2019 VA medical opinion discussed above is highly probative as to the etiology of the Veteran’s diabetes and heart disorders. The examiner reviewed the claims file, discussed the relevant evidence of record, and provided a detailed rationale in support of the opinions rendered. The Board has also considered the Veteran’s statements purporting to relate his currently diagnosed diabetes and heart disorders to service, to include as due to herbicide agents and insecticides. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorders of diabetes and CAD. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). Diabetes and hearty disorders are medically complex disease processes because of their multiple possible etiologies. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Such competent evidence has been provided by the January 2019 VA examiner who reviewed the Veteran’s claims file. Here, the Board attaches greater probative weight to the VA examiner’s opinion than to the Veteran’s statements. For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for CAD and diabetes, and the claims must be denied. The record does not establish to an equipoise or higher standard that the Veteran was exposed to herbicides containing the chemicals for which there is a presumption of service connection for certain diseases due to exposure. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.