Citation Nr: 19113406 Decision Date: 02/25/19 Archive Date: 02/25/19 DOCKET NO. 15-12 542 DATE: February 25, 2019 ORDER Entitlement to service connection for diabetes mellitus as due to herbicide exposure is granted. Entitlement to service connection for Parkinson's disease as due to herbicide exposure is granted. Entitlement to service connection for sleep apnea, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran is shown to have served on TDY at Udorn Royal Thai Air Force Base (RTAFB) during the Vietnam era with duties and testimony to demonstrate that he came in contact with herbicide, possibly the designate herbicide agents or a concentrated formula, while living in open air barracks near the base perimeter and witnessing spraying operations; herbicide exposure is conceded. 2. The Veteran is shown to have diabetes mellitus. 3. The Veteran is shown to have Parkinson’s disease. 4. The Veteran’s sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service, including herbicide exposure. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus is presumed due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. Service connection for Parkinson’s disease is presumed due to herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for sleep apnea have not been met; service connection may not be presumed. 38 U.S.C. §§ 1110, 1116, 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 served on active duty in the Air Force from March 1970 to February 1974. These matters come before the Board of Veteran’s Appeals (Board) on appeal from July 2014, March 2015, and May 2017 rating decisions by the Regional Office (RO). (CONTINUED ON THE NEXT PAGE) Service Connection 1. Entitlement to service connection for diabetes mellitus as due to herbicide exposure 2. Entitlement to service connection for Parkinson’s disease as due to herbicide exposure The Veteran contends that he incurred diabetes mellitus and Parkinson’s disease due to exposure to Agent Orange during temporary duty (TDY) assignments at Udorn Royal Thai Air Force Base (RTAFB) during his active service. As an initial matter, the Board acknowledges that a July 2014 VA examination report and an August 2014 DBQ report show that no diabetes mellitus or Parkinson’s disease was diagnosed. However, subsequent VA treatment records show the Veteran is clearly being followed for diagnosed diabetes mellitus and Parkinson’s disease. See, e.g., CAPRI, received April 2017 at p.18 and 33. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Diabetes mellitus and Parkinson’s disease are among those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed in the case of certain herbicide-exposed veterans. VA regulations provide that exposure to certain designated herbicide agents may be presumed in the case of certain Vietnam era veterans who served in the Republic of Vietnam. See 38 C.F.R. §3.307(a)(6) (2018). Here, the Veteran has not alleged service in Vietnam, and the record does not otherwise indicate such service. Designated herbicide agents are sometimes referred to as tactical herbicides in some documentation to distinguish them from widely available commercial herbicides used on military bases worldwide. The diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing designated herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Diabetes mellitus and Parkinson’s disease are among those diseases for which the presumption is available provided exposure to the designated herbicide agents is shown. Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, Compensation and Pension indicated that it had 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation and Pension has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, Compensation and Pension has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation and Pension stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Compensation and Pension indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases 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 military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The Board acknowledges the claims file includes a March 2015 formal finding by the JSRRC Coordinator that the Veteran’s alleged herbicide exposure in Thailand was unable to be verified. However, the March 2015 formal finding cites to outdated VA policy guidance from the old M21-1MR, which manual included a copy of a “Memorandum for the Record” that provided that no tactical herbicides were used on any RTAFBs in Thailand. See Old M21-1MR, IV.ii.2.C (prior to August 2015 revision). The VA manual has since been revised, and no longer includes this memorandum. See also Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 173 (2016) (“the VA Compensation Service has acknowledged that there was ‘some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.’”) (quoting C&P Service Bulletin, May 2010). In several statements and during his Board hearing, the Veteran repeatedly cited this and other information issued by the Veterans Benefits Administration and contained in the in the VA Adjudicative Procedures Manual (M21-1). In DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), the Federal Circuit held the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules. The Federal Circuit specifically noted that the Board is not bound by the M21-1. See also Overton v. Wilkie, 2018 U.S. App. Vet Claims LEXIS 1251). When relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses and if, after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. Upon review of the materials submitted by the Veteran and materials from the Departments of the Army and Air Force reporting the use of herbicides in Thailand, the Board finds that the weight of evidence is that herbicides of some formulation were used and applied by base management personnel using hand-held or vehicle mounted units either during the Veteran’s service at Thai Air Force Bases or with residue persisting in defoliated areas during that service. The herbicides were used to clear areas on the perimeter for security purposes such as identifying and engaging intruders. Resolving any doubt in the Veteran’s favor, the Board finds that in this case the designated herbicide agents may have been present in sufficient concentration and formulation to qualify as the agents for which the presumption of causation of certain diseases are available. There is no presumption of exposure to the designated herbicide agents (e.g Agent Orange, etc,). There is no evidence of aerial or wide area spraying on these bases. Exposure must be determined on a facts-found basis. In this case, the Veteran’s DD Form 214 shows his occupational specialty was aircraft maintenance specialist. His personnel records show that he was not awarded a Vietnam Service Medal. However, he was on a list of airmen potentially ordered to temporary duty (TDY) at Udorn RTAFB four times in 1970-71. See Personnel records, received March 2014 at p.11-16 of 67. Travel claims showing the execution of the orders are illegible but were either placed in his file or in the Veteran’s possession. The Veteran testified at the Board hearing that there were only a few planes of the type that he worked on at Udorn (the C-130), and that his work area was in close proximity to the perimeter. See Board hearing transcript at p.8 of 21. He also testified that his barracks assigned to temporary duty airmen were “open-air” and close to the perimeter fence. See id. at p.6-7. He also submitted scanned color photographs at the hearing of his barracks, apparently at Udorn RTAFB, showing no vegetation on the ground under a trampled area with hanging laundry next to a building, as well as a photo of the entrance of the Udorn RTAFB. See Photographs, August 2018. That the Veteran’s duties took him near the perimeter alone does not demonstrate that he came in contact with herbicide or its residue. However, he provided credible testimony that the Veteran lived in open air barracks that were close enough to the perimeter to have been sprayed and that he witnessed spraying in that area. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that he did come in contact with some form of herbicide, possibly the designated herbicide agents, or its residue. The Board need not address other contentions of contact with the designated herbicide agents during his regular duty assignments on Guam or that he was a crew member that carried barrels of the designated agents on flights to Thailand. Because the Veteran is shown to have diabetes mellitus and Parkinson’s disease, and because herbicide exposure in Thailand during the Vietnam era is found, the Board concludes that service connection may be presumed for the claimed disabilities, and service connection is granted for diabetes mellitus and Parkinson’s disease. 3. Entitlement to service connection for sleep apnea, to include as due to herbicide exposure. The Veteran also asserts that he has sleep apnea due to herbicide exposure in service. Although herbicide exposure has been conceded, sleep apnea is not among those diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed due to herbicide exposure. The Veteran may nevertheless prove entitlement to service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (“veterans retain the opportunity to show direct service connection by establishing direct actual causation”). The Veteran’s service treatment records show no complaints of trouble sleeping. His January 1974 separation report of medical history shows he denied trouble sleeping. See Service treatment records, received November 2012 at p.27. Post-service, a January 2015 VA sleep study report shows no evidence of obstructive sleep apnea was found, but a need for a Split Study to rule-out sleep apnea was noted. See CAPRI, received March 2014 at p.8 and 14. An April 2015 record shows further study revealed severe sleep apnea. See CAPRI, received April 2017 at p.85. Subsequent VA treatment records show the Veteran is being followed for obstructive sleep apnea. See id. at p.3. There is no medical evidence of record tending to indicate any etiological link between the Veteran’s sleep apnea and his active service, including any link to his conceded herbicide exposure. No record of complaint is shown in service or until 2015, which is 41 years after his service. Such a prolonged period without complaint weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (2000). Therefore, without any evidence of complaint or symptoms in service, and without any medical evidence tending to link the Veteran’s sleep apnea to his active service or herbicide exposure, the Board finds the claim must be denied. The Board acknowledges that Veteran asserts that he has experienced sleep apnea since service. See Form 9, November 2017. The Board, however, finds this report to be not credible because it is inconsistent with his own contemporaneous report in service on his January 1974 separation report of medical history on which he denied sleep trouble. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (“the Board as fact finder is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (“the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements”). The Board adds that, generally, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736 (1992). The Board also acknowledges that the Veteran, in his lay opinion, believes that his sleep apnea is due to herbicide exposure in service. See Notice of disagreement, May 2017. While the Veteran is certainly competent to report his own symptoms, such as trouble sleeping, he is not shown to have the training, medical expertise, or credentials to competently provide an opinion as to the etiology of his obstructive sleep apnea. See King v. Shinseki, 700 F.3d 1339 (2012). Therefore, the Board concludes that the preponderance of the evidence is against entitlement to service connection for sleep apnea, and service connection is not warranted; the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel