Citation Nr: 20004095 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-58 025 DATE: January 16, 2020 ORDER New and material evidence having been received, the appeal to reopen a claim for service connection for diabetes mellitus is granted. Entitlement to service connection for diabetes mellitus, to include as due to in-service exposure to herbicide agents, is denied. Entitlement to service connection for a heart disorder, to include as due to in-service exposure to herbicide agents or as due to diabetes mellitus, is denied. Entitlement to service connection for cellulitis of the lower extremities, to include as due to diabetes mellitus, is denied. FINDINGS OF FACT 1. A February 2003 rating decision denied service connection for diabetes mellitus’ the Veteran failed to appeal the February 2003 rating decision, and new and material evidence was not received within one year of that rating decision. 2. The evidence associated with the claims file subsequent to the February 2003 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim service connection for diabetes mellitus, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents during his active duty service, to include while serving in Okinawa, Japan. 4. The Veteran’s diabetes mellitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 5. The Veteran’s heart disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, or secondary to a service-connected disability. 6. The Veteran’s cellulitis of the lower extremities is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The February 2003 rating decision, which denied the Veteran’s claim for service connection for diabetes mellitus, became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for diabetes mellitus are met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for diabetes mellitus, to include as due to in-service exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a heart disorder, to include as due to in-service exposure to herbicide agents or as due to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for cellulitis of the lower extremities, to include as due to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1966 to April 1969 and in the United States Marine Corps from September 1973 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2017 rating decision mischaracterized the Veteran’s claim for cellulitis as a claim to reopen. However, the record shows that the Veteran filed a timely notice of disagreement (NOD) in August 2017. As such, the Board will adjudicate the claim for cellulitis of the lower extremities as an original claim for service connection. 1. Reopening service connection for diabetes mellitus. The Veteran is seeking to reopen his previously denied claim for service connection for diabetes mellitus. Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a February 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim for service connection for diabetes mellitus on the grounds that the evidence did not show that the Veteran served in Vietnam or was exposed to herbicide agents during his service. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year of the February 2003 rating decision; therefore, the February 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. The Board finds that there is sufficient evidentiary basis to reopen service connection for diabetes mellitus. The new evidence includes internet articles relating to the use of herbicide agents in Okinawa, Japan. The Board finds that this evidence is new in that it has not previously been received and is not cumulative or redundant of evidence previously of record. The Board also finds this evidence to be material because it addresses a previously unestablished element of in-service exposure to herbicide agents. The credibility of this evidence is presumed for the purpose of reopening the service connection claim. Justus, 3 Vet. App. at 513. Therefore, the Board finds the newly-received evidence to be both new and material to reopen service connection for diabetes mellitus. 38 U.S.C. § 5108; 38C.F.R. § 3.156. The claim for service connection for diabetes mellitus is, therefore, reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Exposure to certain herbicide agents, including Agent Orange, is presumed for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. Similarly, the presumption of in-service herbicide exposure also applies to certain veterans who served 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 (DMZ ) in an area in which herbicides are known to have been applied during that period; and, to certain Air Force veterans who regularly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. See 38 C.F.R. §§ 3.307(a)(6)(iii)-(v). For veterans who are presumed to have been exposed to certain herbicide agents, including Agent Orange; or, for those veterans who are not entitled to the presumption of exposure, but who have otherwise established exposure to herbicide agents on a direct basis, certain diseases are presumed to be due to that exposure. These diseases include type diabetes and ischemic heart disease. See 38 C.F.R. §§ 3.307(a)(6); 3.309(e). For certain chronic diseases, including diabetes mellitus and cardiovascular disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 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 claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. 2. Service connection for diabetes mellitus. The Veteran contends that his diabetes mellitus is related to exposure to Agent Orange during his service in Okinawa, Japan. First, the evidence shows a current disability. Specifically, treatment records show the Veteran was diagnosed with diabetes mellitus in July 1999. See June 2002 Medical Treatment Record – Government Facility, p. 7. Therefore, the first element of service connection has been satisfied. Shedden, 381 F.3d at 1163-67. However, the Board finds that the second service connection requirement of an in-service disease, event, or injury has not been met. Service treatment records do not reflect, and the Veteran does not assert, onset of diabetes mellitus during service or within one year thereafter. In fact, the Veteran stated that he was not diagnosed with this condition until many years after his tour of duty. See August 2002 VA 21-4138 Statement in Support of Claim, p. 1. This evidence weighs against a finding that symptoms of diabetes mellitus were chronic in service, continuous since service separation, or manifested to a compensable degree within one year of separation. Therefore, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309; Walker, 708 F.3d 1331. The above-referenced evidence also weighs in-service onset of diabetes mellitus. With respect to the Veteran’s assertions of in-service exposure to herbicide agents, the Veteran’s service department records show that his foreign service was limited to Okinawa, Japan. This service does not satisfy the criteria for presumptive herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). Nevertheless, the unavailability of presumptive service connection pursuant to 38 C.F.R. § 3.307(a)(6) does not preclude a veteran from establishing service connection based on direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Specifically, service connection would be warranted if actual, rather than presumptive, exposure to herbicide agents is demonstrated. In cases where the Veteran alleges exposure to in-service herbicide agents in places where the presumption of exposure does not apply, VA will obtain as much information as possible from the Veteran about the alleged exposure; and, if feasible, will attempt to obtain verification of the use of such herbicides. If enough information is received from the Veteran, VA can request a review of the Department of Defense (DOD) inventory of herbicide operations to determine whether herbicides were used as claimed. If that review does not confirm that herbicides were used as claimed, and if sufficient information to permit a search by the Joint Services Records Research Center (JSRRC) has been provided, a request for verification of exposure to herbicides is sent to that entity. In this case, the RO acknowledged the Veteran’s service at Camp Schwab in Okinawa, Japan. The Veteran reported that he worked around buildings where barrels were stored during his time in Okinawa. See October 2017 Form 9, p. 1. He also reported that he was sent to Camp O’Donnell on work details. Id. He advanced that he was routinely sent to off-load ships from Vietnam and transferred goods from the ships onto trucks for shipment, although they never knew what was in the barrels. Id. The Veteran has submitted articles suggesting that herbicide agents were stored in Okinawa, Japan. See October 2017 Correspondence; see also February 2018 Correspondence. In a September 2017 Memorandum, the JSRRC provided a response from the Department of Defense (DoD)/VA Central Office Agent Orange Research Center. The DoD had not identified any location on Okinawa, including Camp Schwab or Camp O’Donnell, where Agent Orange was used, tested, stored or transported. It was noted that Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. The JSRRC indicated that there were no combat operations in Okinawa during those years so there was no need for Agent Orange there. It was also noted that all use of Agent Orange by the U.S. military was terminated in 1971, three years prior to the Veteran’s claimed exposure. The JSRRC indicated that Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. All liquids, ranging from cooking oil to jet fuel, were shipped in 55-gallon drums so the presence of such drums did not demonstrate the use of Agent Orange. Further, there was no scientific evidence available to VA that demonstrated that being in the vicinity of aircraft, cargo ships or equipment previously used in Vietnam could be considered as exposure to active Agent Orange or could result in long-term health effects. The JSRRC determined that all evidence that showed any herbicide usage the Veteran or others may have observed, or were associated with, was of the commercial variety, not Agent Orange, and there was insufficient evidence to corroborate Agent Orange exposure. Thus, evidence failed to establish the Veteran’s service may have exposed him to Agent Orange. Despite the Veteran’s contentions, further verification efforts are not warranted. Assertions of herbicide agent exposure cannot, alone, support a finding of actual exposure, particularly where, as here, the official records specifically state that Agent Orange was not stored in Okinawa. The service department records and the September 2017 JSRRC memorandum weigh against a finding of actual in-service exposure to herbicide agents. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (The Board may weigh evidence on factors such inherent plausibility and consistency with additional evidence). The Board has considered the articles submitted by the Veteran, which suggest that herbicide agents were stored in Okinawa. However, these articles do not provide sufficient evidence to support a finding that the Veteran was actually exposed to herbicide agents in Okinawa, Japan. The above-referenced internet articles are outweighed by the service department records and the September 2017 JSRRC memorandum, which made specific findings that the Veteran’s actual exposure to herbicide agents in Okinawa, Japan, could not be confirmed. Based on the foregoing, the Board finds that the weight of the evidence is against finding that the Veteran had actual exposure to herbicide agents during service. The Veteran has not otherwise provided any medical evidence that his diabetes mellitus may be related to service other than his general assertions that his diabetes is related to in-service exposure to herbicide agents. While the Veteran believes that his diabetes mellitus is related to service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, and the ability to interpret complicated diagnostic medical testing, which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives no probative weight to the Veteran’s assertions, which purport to link his diabetes mellitus type 2 to service, are assigned no probative value. For these reasons, the Board finds that a preponderance of the evidence is against finding that the Veteran’s diabetes mellitus was incurred in service or is otherwise related to service. Accordingly, service connection for diabetes mellitus must be denied. As the preponderance of the evidence is against the claim, the benefit-of- the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for a heart disorder The Veteran contends his heart disorder was caused by herbicide exposure, or in the alternative, by his diabetes mellitus. The Board finds that the Veteran has a current heart disability. The record reflects that the Veteran has been diagnosed with coronary artery disease. See, e.g., November 2003 Medical Treatment Record – Non-Government Facility, p. Therefore, the first requirement for service connection is met. Shedden at 1163-67. However, the weight of the evidence is against the Veteran’s claim. Service treatment records show no complaints of, treatment for, or diagnosis of a heart disorder. The Veteran does not allege that his heart disability began in service, or that symptoms of his heart disability were chronic in service, continuous since service separation, or manifested to a compensable degree within one year of service separation. Accordingly, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309; Walker, 708 F.3d at 1338-40. The above-referenced evidence also weighs in-service onset of a heart disability. Moreover, as noted above, the Veteran’s service in Okinawa, Japan, does not satisfy the criteria for presumptive herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). Additionally, the Veteran is not shown to have had actual exposure to herbicide agents during service. As such, service connection for a heart disability as a result of the claimed exposure to herbicide agents during service is not warranted. The Board notes that the Veteran claimed a heart condition secondary to diabetes mellitus. As noted above, service connection for diabetes mellitus has not been established. Therefore, where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition as a matter of law. See 38 C.F.R. § 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service-connected); Sabonis, 6 Vet. App. at 430. The Veteran has not otherwise provided any medical evidence that his heart disability may be related to service other than his general assertions that his heart disability is related to in-service exposure to herbicide agents. While the Veteran believes that his heart disability is related to service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, and the ability to interpret complicated diagnostic medical testing, which the Veteran is not shown to have. Jandreau, 492 F.3d at 1377 n.4 . Consequently, the Board gives no probative weight to the Veteran’s assertions, which purport to link his heart disability to service, are assigned no probative value. For these reasons, the Board finds that a preponderance of the evidence is against finding that the Veteran’s heart disability was incurred in service, is otherwise related to service, or is secondary to a service-connected disability. Accordingly, service connection for a heart disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of- the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 4. Service connection for cellulitis of the lower extremities The Veteran contends his cellulitis of his bilateral lower extremities is due to his diabetes mellitus. The Board concludes that, while the Veteran may have a diagnosis of cellulitis of the lower extremities, the determination above regarding service connection for diabetes mellitus does not allow for entitlement on a secondary basis for cellulitis. Thus, the second element of secondary service connection is not met. Specifically, where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection for a secondary condition as a matter of law. See 38 C.F.R. §§ 3.310(a), (b) (providing for service connection for a disability only where such disability is proximately due to, the result of, or aggravated by, a disease or injury that is already service-connected); Sabonis, 6 Vet. App. at 430. In addition, the Veteran has not alleged, and the evidence does not reflect, that his cellulitis is directly related to service. Service treatment records do not otherwise show complaints of, treatment for, or diagnosis of cellulitis of the lower extremities. Therefore, neither the in-service event element nor the nexus element required for direct service connection have been met. See Shedden at 1163-67. For these reasons, the preponderance of the evidence is against the claim for service connection for cellulitis of the lower extremities. As the preponderance of the evidence is against the claim, the benefit-of- the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.