Citation Nr: 20046782 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-40 131 DATE: July 13, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus, type 2 (diabetes) is denied. FINDINGS OF FACT 1. Hypertension did not manifest during service, was diagnosed more than one year after service, and is etiologically not related to service. 2. Diabetes did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. Hypertension did not manifest during service, may not be presumed to have been incurred therein, and is unrelated to service. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Diabetes was not incurred in or aggravated by military service, may not be presumed to have been incurred therein, and may not be presumed to have been so incurred as due to in-service herbicide exposure. 38 U.S.C. §§ 1110, 1112, 1131, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to July 1968. 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, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension and diabetes mellitus if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Thus, hypertension and diabetes mellitus are included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a).   Issue 1: Entitlement to service connection for hypertension. For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1. A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran contends that his hypertension is related to service as he was hospitalized due to hypertension at the VA Medical Center (VAMC) in Beckley, West Virginia approximately two years following his July 1968 separation from service. See August 2016 Board hearing transcript. Service treatment records do not show complaints, findings or treatment for hypertension. The enlistment exam, although not completely legible, shows that the Veteran’s blood pressure appeared to be 120/76. His February 1968 separation examination shows his blood pressure 120/80. After service, VA treatment records in December 1969 show the Veteran’s blood pressure was 140/80. VA treatment records in August 1970 show the Veteran’s blood pressure was 118/84. A VA examination for the feet in June 1972 shows the Veteran’s blood pressure ranged from 130/70 to 135/80 to 130/90. VA treatment records in June 1972 show a blood pressure reading of 120/68. VA treatment records in October 1976 show the Veteran’s blood pressure was 150/100, 150/98 standing, 150/100 sitting, 140/90 lying. The diagnosis was rule out hypertension. VA hospital records in October 1976 show a diagnosis of essential hypertension and the examiner noted the Veteran had a history of hypertension for the last three to four months. On VA examination in April 2019 the examiner reviewed the claims folder in conjunction with examining the Veteran. The examiner noted that there was no mention of elevated blood pressure during service. The examiner opined that it is less likely than not that hypertension was caused by service based on the rationale that there is no evidence that being in the miliary can affect the elastic properties of the arteries or cause renal stenosis that could lead to hypertension. He noted that the records do not reflect an elevated blood pressure with the separation examination showing a normal blood pressure. The examiner opined that there is no evidence of the development of hypertension during service or immediately thereafter. The examiner noted that the first mention of hypertension was in 1976 and stated that there were no records prior to 1976 from the VA Medical Center. In the May 2019 remand, the Board instructed that treatment records from July 1968 to the present be obtained from the VA Medical Center in Beckley, West Virginia and afterwards the Veteran be scheduled for a VA examination. Such records were obtained in October 2019 and include a record from December 1969 that shows the Veteran had elevated blood pressure as his blood pressure was 140/80. Although this record was obtained subsequent to the April 2019 VA examination, there is an April 2019 QTC Medical Evaluation Protocol accompanying the April 2019 VA examination whereby the Veteran reported that after service he was hospitalized for blood pressure approximately in 1968. Thus, even though the examiner did not see the December 1969 record the examiner was aware of the Veteran’s reported history of elevated blood pressure shortly after service. The Board finds that the Veteran has not been prejudiced by the omission to associate the treatment records from the Beckley VAMC prior to his VA examination. Thus, there has been substantial compliance with the Board’s remand directives and the April 2019 VA examination is fully adequate. Further, the Board finds the April 2019 VA opinion to be probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran’s hypertension in proffering the opinion. The opinion is uncontroverted by the other competent evidence of record. As a lay person, the Veteran is competent to report symptoms pertaining to his hypertension. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran’s hypertension is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorder. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. The Veteran’s representative in a June 2020 brief contended that the Veteran had prehypertension contemporaneous with service and cited to a study published in The West Indian Medical Journal that found prehypertension is associated with a three fold increase in the incidence of hypertension. The United States Court of Appeals for Veterans Claims has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin v. West, 11 Vet. App. 509 (1998). The Board places little probative value on the literature submitted by the Veteran as it was written to explain general medical principles, and not opinions regarding the specific facts in this case. To the extent that the Veteran is asserting continuity of symptomatology, his assertions are outweighed by the evidence of record discussed above. Accordingly, because the preponderance of the evidence is against the claim of service connection for hypertension, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Issue 2: Entitlement to service connection for diabetes. Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to a herbicide agent, including Agent Orange, during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. The current list of diseases subject to presumptive service connection includes diabetes mellitus, type 2. 38 C.F.R. §§ 3.307 (a)(6)(ii); 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not allege, nor do his service records demonstrate, that he served in the Republic of Vietnam (Vietnam) during the Vietnam War. Instead, the Veteran contends that he was exposed to herbicides while serving in Okinawa, Japan. The Veteran in his October 2014 Form 9 Appeal stated during service in Okinawa he worked on planes that came in from Vietnam and were loaded with Agent Orange. In the September 2013 claim, the Veteran contends that during service he was with the 22nd Bomb Wing Strategic Air Command and was sent to Kadena Air Force Base in Okinawa. He stated he had shop and flight line duties. The Veteran’s DD 214 shows that he had service in the U.S. Air Force and was assigned to the 22nd Field Maintenance Squadron. Service personnel records show an evaluation covering the period from March 1967 to September 1967, which includes the Veteran’s service at the Kadena Air Base. It was noted that the Veteran was at the Kadena Air Base with the 22nd Field Maintenance Squadron, where he performed various machine tool cutting operations. Service treatment records do not show complaints, findings or treatment for diabetes mellitus. VA treatment records show a diagnosis of diabetes mellitus type 2. See, e.g., VA treatment records dated in September 2013 and October 2015. Notably, during the August 2016 Board hearing the Veteran testified that he was a diabetic for approximately 10 years. During the August 2016 Board hearing the Veteran also testified that during service he was a machinist. He stated he had temporary duty to Okinawa, and he was part of the task force that went to Kadena Air Base. He stated that he worked on planes that came in from Vietnam and were sprayed with Agent Orange. The Veteran asserted that his diabetes was due to his proximity to aircraft that landed in Vietnam. He stated that he assumed the C-123 aircraft he worked on were sprayed with Agent Orange. Thus, the question before the Board is whether the Veteran’s diabetes mellitus is related to his claimed exposure to Agent Orange. Exposure to herbicide agents is not presumed for those veterans stationed in Okinawa, Japan. The presumptive regulations do not preclude a veteran from establishing service connection with proof of direct causation. See Combee. Thus, to support an award of entitlement to service connection in the current instance and in consideration of the Veteran’s contention, the evidence must demonstrate that his diabetes was caused by actual exposure to an herbicide agent while serving on active duty. For the following reasons, the Board concludes that the claim must be denied because there is no probative evidence demonstrating that the Veteran was actually exposed to an herbicide agent during active service. Correspondence from the Compensation Service in April 2019 shows that the Department of Defense has not identified any location on the island of Okinawa, to include Kadena Air Force Base, where Agent Orange was used, tested, stored, or transported. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from Mobile, Alabama, or Gulfport, Mississippi, to South Vietnam via merchant ships. C-123 aircraft that was used to spray Agent Orange as part of Operation Ranch Hand were flown out of bases in Vietnam. Agent Orange used in Operation Ranch Hand was stored in Vietnam not in Okinawa. Ranch Hand C-123 aircraft were not flown out of Okinawa. All evidence shows that any herbicide use the Veteran observed, or was associated with, was the commercial variety, not Agent Orange. Therefore, the Compensation Service could not provide evidence to support the claim. On July 16, 2019 the Joint Services Records Research Center (JSRRC) replied that they researched the available histories submitted by the 22nd Bombardment Wing (BW) (Heavy), higher headquarters for the 22nd Field Maintenance Squadron (FMS) stationed at March Air Force Base (AFB), California. The information shows that beginning in February 1967 the 22nd BW was tasked to support combat operations in the Republic of Vietnam (RVN) under Operation ARC Light. The 22nd BW bomber aircraft was deployed to Andersen AFB, Guam, and the fuel tanker aircraft were deployed to Kadena Air Base (AB), Okinawa. The information also shows that the maintenance crews also accompanied the aircraft at the different locations. However, the information was negative and did not report on, or discuss the Veteran or unit personnel assigned to the 22nd FMS or the 22nd BW as being exposed to Agent Orange (AO) or tactical herbicides while performing daily duty assignments on or around the unit aircraft at Kaden AB. The histories also did not report on unit personnel being assigned to work on C-123 aircraft while at Kadena, or that AO or tactical herbicides were stored at Kadena AB during the Veteran’s service there. In a November 2019 Memorandum a formal finding was made that the Veteran’s exposure to herbicides while serving at Kadena Air Base in Okinawa, Japan remains unconfirmed. The Board acknowledges that the Veteran submitted articles that purport to show there was Agent Orange in Okinawa during his service. In April 2014 the Veteran submitted an article from The Asia-Pacific Journal dated in January 2013 that claimed there was an herbicide stockpile at Kadena Air Base in Okinawa. The article contends that in August 1966 US military technicians visited the installation to train service members and Okinawa base personnel in the use of herbicides. In June 2014 the Veteran submitted an article from The Japan Times that shows a US veteran who was awarded benefits due to Agent Orange exposure in Okinawa from 1967 to 1968 while transporting it in barrels and rubber bladders and spraying it in training areas. It was reported that C-123 airplanes that sprayed defoliants over Vietnam were sent to the base for maintenance. The Veteran in June 2014 also submitted an article from The Voice of Russia dated in March 2014 that contends there was Agent Orange at Kadena Air Base in Okinawa in the 1960s. The Board places little probative value on the articles submitted by the Veteran as they are not supported by official documentation, and there is otherwise nothing to support the authors’ allegations. Nor do the articles otherwise discuss the particular circumstances in the instant case. The specific facts in each case are different. To the extent that one of the articles shows another Veteran was granted service connection due to Agent Orange exposure in Okinawa, Board decisions are not precedential, and the previously issued Board decision is considered binding only with regard to the specific case decided. 38 C.F.R. § 20.1303. A Board decision can not establish a presumption for future cases. Thus, the Veteran’s contentions are outweighed by the evidence of record discussed above and the matter of whether his contentions are credible is not reached. The Board again notes that while the Veteran contends that he worked on C-123 aircraft at Kadena, neither his service records nor his service department supports his claim. Moreover, even if he did work with C-123 aircraft, to obtain the presumption of exposure to herbicides, the C-123 aircraft in question must have been known to have been used to spray an herbicide unit. 38 C.F.R. § 3.307(a)(6)(v). Here, the service department confirmed that those type of aircraft were not present at Kadena. Accordingly, the Veteran is not presumed to have been exposed to herbicides. (Continued on the next page)   Thus, for the above reasons the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for diabetes must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.