Citation Nr: 20002154 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-51 252 DATE: January 9, 2020 ORDER Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agent is denied. Entitlement to service connection for diabetes mellitus type 2 (“diabetes mellitus”), to include as due to exposure to herbicide agent is denied. REMANDED The issue of entitlement to service connection for lumbar strain (“back disability”) is remanded. The issue of entitlement to service connection for right lower extremity sciatica is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents, specifically Agent Orange, in service. 2. The Veteran’s ischemic heart disease did not manifest in service or within the applicable presumptive period and is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran’s diabetes mellitus did not manifest in service or within the applicable presumptive period and is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1967, to include service in Korea from September 1965 to October 1966. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 videoconference hearing; a transcript is of record. Service Connection 1. Ischemic heart disease 2. Diabetes mellitus The Veteran seeks service connection for ischemic heart disease and diabetes mellitus as due to herbicide exposure while he served in Korea. Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including cardiovascular-renal disease and diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the medical evidence of record does not show complaints, findings, or diagnoses of ischemic heart disease or diabetes during service. The Veteran’s heart disease was demonstrated for the first time in 1981, when he was hospitalized for a heart condition. He was diagnosed with diabetes in late 2000’s. Moreover, the medical evidence does not demonstrate that the Veteran had symptomatology of the disabilities at issue continuously from separation. Thus, the evidence does not show any in-service incurrence or manifestation/continuity of the diseases to warrant a direct service connection or service connection under chronic presumption. 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, as the Veteran contends, the issue before the Board is whether the Veteran’s heart disability and diabetes mellitus are caused by the claimed exposure to herbicide agents while he served in Korea from September 1965 to October 1966. Specifically, the Veteran contends that he was exposed to herbicide agents on two incidents. The Veteran asserts that in one incident, he trained ROK (Republic of Korea) soldiers from the White Horse Division and assigned them to spray defoliants and that in another incident, he escorted ROK soldiers from the White Horse Division to Vietnam to resupply units on a temporary duty assignment in February 1966. See, e.g., April 2013 Statement in Support of Claim. He also stated that he was a “NBC [Nuclear, biological, chemical] chemical NCO [non-commissioned officer] for our headquarter and was responsible for spraying defoliants along the roads … to the Peace Talks at the DMZ [demilitarized zone].” March 2014 Veteran’s Statement. Moreover, the Veteran testified that his unit “flew over” to Vietnam with Howitzers, trucks, wagons, and ammunition, following the Headquarters. October 2019 Board Hearing Transcript, at 12. Under VA regulation, ischemic heart disease and diabetes mellitus type 2 have been presumptively associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.307 (a)(6), a veteran is presumed to have been exposed to certain herbicide agents, to include Agent Orange, if they served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea, between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iv). The Department of Defense provided a list of units that have been recognized as having served in areas along the Korean DMZ. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, since ischemic heart disease and diabetes mellitus are known to be associated with herbicide exposure under 38 C.F.R. § 3.309(e), the nexus element for service connection will be met once the in-service incurrence, which in this case is herbicide exposure, is shown. Since the period of the Veteran’s service in Korea does not fall within the period recognized for herbicide exposure presumption, such presumption is not applicable to his case under 38 C.F.R. § 3.307(a)(6)(iv). Thus, the Veteran must directly show that he was exposed to herbicide agents while he served in Korea or that he had a tour to Vietnam during the presumptive period under 38 C.F.R. § 3.307 (a)(6)(iii). The evidence developed by the Veteran and the Regional Office (RO) in order to support or verify his claim of herbicide exposure includes his military personnel records, DPRIS [Defense Personnel Records Information Retrieval System] search results, various buddy statements, copies of military and/or VA documentation on herbicide agents, article excerpts and information from the Internet, a June 2018 statement from Dr. A.F., and the Veteran’s statements. Based on a review of all the evidence in the Veteran’s claims file, the Board finds that the evidence preponderates against finding that the Veteran was exposed to herbicide agents in Korea or he went to Vietnam on a temporary duty while he served in Korea. An April 2016 DPRIS search prompted a review of the unit histories submitted by the battalion the Veteran belonged and the higher headquarters for the period from 1965 to 1966. The DPRIS reviewer found no histories documenting any ROK being assigned to the unit or any type of training taking place with ROK soldiers and no histories documenting unit personnel sent on temporary duty assignments to the Republic of Vietnam. Moreover, the reviewer found no histories documenting use, storage, spraying, or transporting of herbicides, to include Agent Orange and no histories documenting any specific duties performed by the unit members along the DMZ. The Veteran’s military personnel records show that the Veteran attained a rank of specialist E-4 (SP4 E-4) in May 1966, but does not show qualification or training for “NBC NCO.” They do not list any temporary tour of duty to Vietnam. The June 2018 statement by Dr. A. F. stating that the Veteran’s ischemic heart disease is related to his agent orange exposure is probative for showing that the heart disease is related to agent orange exposure. However, whether the Veteran was exposed to agent orange is a determination of a non-medical fact, and thus, this conclusive statement without evaluating pertinent facts of the Veteran’s service affords less weight for showing the Veteran’s herbicide exposure. None of the buddy statements, to include the Veteran’s statements, that describe incidents of “herbicide spraying” is competent for the purpose of showing occurrence of herbicide spraying, for the evidence does not show that the individuals who claimed to have witnessed spraying of or sprayed herbicides had the specialized knowledge to determine if the substance being handled was a herbicide. Moreover, some of the veterans who authored the statements did not serve in a period that overlaps with the Veteran’s or in a location where the Veteran served. A January 2014 Statement by Mr. W.B. refers to how the scenery changed from green in June to brown in September, but he did not specify which year he observed this change. The Internet article submitted by the Veteran about the White Horse Division does not show involvement of the Veteran in the operation. The government documentations on herbicide agents are not applicable to the Veteran because the Veteran’s service period does not fall within the periods discussed in the documents. Thus, they are not probative for purpose of showing that the Veteran was involved in the ROK soldiers or that he was exposed to herbicide agents. A May 2014 Statement by Mr. R.R. refers to the claimed temporary duty in Vietnam with the ROK soldiers for two weeks. However, no more detail is provided than what the Veteran has already stated elsewhere. See, e.g., October 2019 Board Hearing Transcript, at 12. Thus, even though it is competent, it does not afford more weight or credibility than the Veteran’s own statement. As for the issue of herbicide exposure in Korea, no competent evidence in the record shows that the Veteran was exposed to herbicide agents while he served in Korea. As for the issue of temporary tour in Vietnam, the evidence preponderates against the claim. The Board finds that the Veteran’s statement and his buddy statement by Mr. R.R. concerning this issue are less credible because no part of this temporary tour for 2 weeks in Vietnam – the Veteran’s or Mr. R.R.’s involvement with the White Horse Division and flying over to Vietnam with Howitzers and trucks – is supported by his military personnel records and DPRIS search. The Wikipedia article submitted by the Veteran on ROK states that the White Horse Division was deployed to South Vietnam in September 1966. However, as stated above, this article does not show that the Veteran was deployed to Vietnam. For the foregoing reasons, the Board finds that the claims for service connection for ischemic heart disease and diabetes mellitus must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Service connection for lumbar strain The Veteran contends that he had an accident involving a water trailer/tank and a truck while he served in Korea, where he injured his back and that his back hurt since then and his current back disability is a result of this injury. The Veteran also states that he did not seek any treatment for his back condition while in service. See October 2019 Board Hearing Transcript, at 3-5. See also March 2006 Statement in Support of Claim for PTSD. The earliest post-service treatment record for his back in the claims file is an August 1993 x ray. The x ray for lumbar spine showed minimal narrowing of the disc space between L5 and S1 and minimal marginal spur formation of some of the lumbar vertebral bodies. An x ray for hips was taken as well, which showed several metallic clips in the soft tissue in the region of the right hip. Subsequently, he had a laminectomy at L4-L5, and the progression to the current diagnosis of degenerative joint disease is well documented in the medical evidence. The record does not contain sufficient information to make a decision on the Veteran’s claim, as he has not yet been provided an examination and the Board lacks the medical expertise necessary to determine the nature and etiology of any back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA should provide an examination upon remand and obtain a medical opinion for the nexus between the claimed in-service accident and the back disability as found in August 1993 x ray. 2. Service connection for right lower extremity sciatica The Veteran claims that his right lower extremity sciatica is due to his back disability. As such, this claim is inextricably intertwined with the remanded issue of service connection for a back disability. Moreover, this condition warrants an examination in order to confirm the claimed etiology. If such etiology is not confirmed, an opinion concerning the nexus with service must be obtained. Thus, VA should provide an examination upon remand and obtain a medical opinion for the nexus with the back disability or with service.   3. TDIU The issue of a total rating is deferred pending the requested development herein. If service connection for an additional disability were established it could impact this issue. Thus, consideration of this matter is deferred at this time. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability, as manifested in August 1993 x rays. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the claimed in-service truck/water trailer accident and whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of right lower extremity sciatica. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease and whether it is at least as likely as not (1) proximately due to a current back disability, or (2) aggravated beyond its natural progression by a current back disability. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, Associate 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.