Citation Nr: 21001586 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-08 657 DATE: January 11, 2021 ORDER Entitlement to service connection for arteriosclerotic heart disease, as due to exposure to herbicides, is denied. Entitlement to service connection for type II diabetes mellitus, as due to exposure to herbicides is denied. Entitlement to service connection for neuropathy of the left lower extremity, as secondary to diabetes mellitus, is denied. Entitlement to service connection for neuropathy of the right lower extremity, as secondary to diabetes mellitus, is denied. Entitlement to service connection for neuropathy of the left upper extremity, as secondary to diabetes mellitus, is denied. Entitlement to service connection for neuropathy of the right upper extremity, as secondary to diabetes mellitus, is denied. Entitlement to service connection for bilateral retinopathy, as secondary to diabetes mellitus, is denied. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is denied. FINDING OF FACT There is no competent evidence of record indicating the Veteran was exposed to herbicide agents as defined by VA regulations during service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for arteriosclerotic heart disease, as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for type II diabetes mellitus, as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing service connection for neuropathy of the left lower extremity, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for establishing service connection for neuropathy of the right lower extremity, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for establishing service connection for neuropathy of the left upper extremity, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for establishing service connection for neuropathy of the right upper extremity, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for establishing service connection for bilateral retinopathy, as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for establishing service connection for hypertension, to include as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from December 1965 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2010 and November 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2015. This case was previously before the Board in March 2016, March 2019, and March 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. The Veteran died in October 2019, and his surviving spouse has been substituted as the Appellant in this case. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of service connection for a disability resulting from exposure to a herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service 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 U.S.C. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). Exposure to herbicide agents outside the Republic of Vietnam may be proven with credible evidence. The term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4 D; 2,4,5 T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Certain diseases shall be service-connected presumptively for veterans with exposure to herbicides, even if there is no record of such disease during service. 38 C.F.R. § 3.307(a). The diseases that will be presumed to be related to service as a result of exposure to herbicides are enumerated in 38 C.F.R. § 3.309(e), but a claimant is not precluded from establishing service connection for other disabilities with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for arteriosclerotic heart disease and type II diabetes mellitus, as due to exposure to herbicides Throughout the appeal, the Appellant and, previously, the Veteran have continuously maintained that the Veteran was exposed to herbicides while in service on Okinawa, at Kadena Air Base. The Appellant has not raised any other theory of entitlement, and none is raised by the record. As there is therefore no indication any of the current disabilities might be associated directly with the Veteran’s service, there is no duty on VA’s part to obtain a medical opinion on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board first notes there are confirmed diagnoses in the record of arteriosclerotic heart disease and type II diabetes mellitus, as well as the secondary disabilities the Appellant is claiming, including right and left upper and lower diabetic neuropathy, bilateral retinopathy, and hypertension. Regarding the asserted in-service exposure, the Veteran did not have any service in the Republic of Vietnam or in any of the other circumstances enumerated in the regulations, including the Korean DMZ or in an Air Force unit that regularly and repeatedly operated and maintained 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). Therefore, the presumption does not apply and the Veteran cannot be presumed to have been exposed to herbicides during service. In June 2010, the Veteran submitted a written statement reporting that he spent 18 months in Okinawa, working as a material specialist. He handled and issued tools to airplane mechanics, who flew the tools to Vietnam on 90-day temporary duty assignments, and checked the tools back in upon their return. He also reported unloading barrels from aircraft by forklift and loading them onto other aircraft, approximately once a week for three months. At the December 2015 Board hearing, the Veteran testified that, in addition to his duties managing the aircraft tools, he was tasked with unloading barrels of liquid from certain airplanes and loading them on a truck. He then drove the truck to the flight line or, on some occasions, to Naha Air Base or Marine posts elsewhere on the island. The Veteran described getting wet with the liquid from the barrels, which he described as large drums with an orange stripe and possibly some writing on them. In support of the contention the Veteran encountered herbicides in Okinawa, the Appellant has submitted several articles and reports. One article describes the discovery in June 2013 of barrels of liquid beneath a soccer field in Okinawa, which tests revealed to contain 2,4,5 T and 2,3,7,8 TCDD dioxin. The article contains reports from former servicemembers and Okinawa residents of the storage of barrels of toxic munitions on the island from 1962 through the 1970s. Another article described Operation Red Hat, an effort to remove U.S.-owned chemicals, particularly nerve agents such as mustard agent, sarin, and VX, from Okinawa. An essay included a photograph of U.S. Marines unearthing barrels of chemicals in Futenma on Okinawa in 1981. The reports submitted included an excerpt from a 1971 U.S. Army report noting an “ORANGE Stockpile in Vietnam” and “Herbicide Stockpiles Elsewhere in PACOM US Government Restricted Materials Thailand and Okinawa (Kadena).” VA attempted to locate the entirety of the report, as did the Appellant, but it was not available to add to the claims file. The Appellant also submitted an ecological report documenting a study in response to three fish kills in December 1974, January 1975, and October 1986, which noted contamination on and near Camp Kinser, on another part of Okinawa, involving pesticides such as malathion, chlordane, diazinon, DDT, dieldrin, dioxin, and a high concentration of PCBs. The Appellant also submitted a report entitled “An Ecological Assessment of Johnston Atoll,” which was cited in the article discussing Operation Red Hat. This report, conducted by independent researchers, asserts, “In 1972, the U.S. Air Force brought about 25,000 55-gallon drums of the chemical, Herbicide Orange (HO), to Johnston Island that originated from Vietnam and was stored on Okinawa.” Finally, another report dated in January 2013 discusses allegations of herbicide use and storage on Okinawa. This report noted that tactical herbicides, including Agent Orange, were kept under tight control by the Department of Defense, creating a paper trail indicating the production and transport of each barrel of herbicide agent. The report also noted the common use of commercial herbicides, which contained some of the same chemicals but in a vastly diluted form, on Okinawa, which also was controlled administratively by registration with the Japanese Department of Agriculture and Forestry. The report reviewed deck logs of ships originating from ports of embarkation that were authorized to store tactical herbicides and message forms from the Vietnam Era, finding no evidence of shipments of herbicides to or through Okinawa, either for transport by another ship or by aircraft. The report also addressed the assertion made in the “Ecological Assessment” report, as well as by one of the articles submitted by the Appellant, that 25,000 drums of Agent Orange had been stored on Okinawa. The report concluded that Agent Orange was shipped from Vietnam to Johnston Atoll, but this occurred directly, without storage on Okinawa, and as part of Operation Pacer Ivy. Operation Red Hat occurred in 1971 and involved the removal of nerve and mustard agent from Okinawa to Johnston Atoll. Further, the deck log of the cargo ship used in Operation Pacer Ivy indicated arrival at Da Nang, Cam Ranh Bay, and Port of Saigon to load barrels of herbicide from three air bases, then arrival at Johnston Island 18 days later, with no stops recorded in Okinawa. This record coincides with the records reviewed in the report regarding the logistics planning for removal of Agent Orange from Vietnam. In response to the Appellant’s claim, VA attempted to verify the Veteran’s reported exposure. The Air Force Historical Research Agency looked at the Veteran’s unit history and noted the unit assisted others in getting to Vietnam, either by mid-air refueling or by support for the Young Tiger operation, which refueled fighter aircraft in Southeast Asia. However, the unit itself did not send anyone to Vietnam, and none of the refueling operations required the deployment of ground personnel such as supply specialists. The historian also examined the Veteran’s assertion that he handled tools that had been taken to Vietnam and opined that the tools would not have been contaminated with Agent Orange, which was sprayed at a low altitude and with winds no more than 15 knots. The herbicide was an oil-based chemical, and therefore fell directly to the ground in targeted areas, and not on places the tools would have been used or stored. The historian also noted that Agent Orange was only shipped by sea, so barrels unloaded from aircraft would not have had the herbicide in them. VA also documented the Department of Defense (DoD) response regarding locations outside Vietnam where Agent Orange was used. DoD has not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported, and Okinawa was not on the shipping supply line for the herbicide. DoD noted that routine base maintenance activities, including range management, brush clearing, and weed killing, were accomplished with commercial herbicides that do not fall under the definition of herbicide agent in 38 C.F.R. § 3.307(a)(6)(i). After careful review of all the evidence of record, the Board finds the Veteran’s asserted in-service exposure to herbicide agent cannot be substantiated. The Board acknowledges the Veteran’s service in Okinawa, Japan, and his statements supporting that he was exposed to herbicides during service. The Board notes the Veteran is competent to establish facts that can be observed by the use of a person’s five senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is competent to report the events that occurred during service, including the locations of such service and the duties during service. The Board does not call into question the Veteran’s reports that he handled barrels of liquid during service in Okinawa. However, the Board does not find that the Veteran has established the competency to distinguish herbicide agents from other liquids or chemicals he may have witnessed or handled during service. Accordingly, the Veteran is not competent to say he was exposed to herbicides based on his handling of barrels of liquid because the Veteran has not been shown to have any specialized training that would allow him to identify a chemical such as herbicides by sight. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a layperson’s assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event occurred during service). Further, the articles and reports the Appellant submitted in support of these claims do not establish that the Veteran was exposed to Agent Orange or other herbicide agents. The article discussing the discovery of chemical barrels does not specify when the barrels were present on Okinawa, much less that the Veteran was exposed to any of the contents of these barrels, and the article discussing Operation Red Hat is not applicable to whether the Veteran was exposed to herbicides, as Operation Red Hat dealt with nerve agents. Thus, neither of these articles is competent evidence that the Veteran was exposed to herbicide agents while stationed at Okinawa. The “Ecological Assessment” report alleges that 25,000 barrels of Agent Orange were transported to Johnston Island that originated in Vietnam and were stored in Okinawa; however, the response from the DoD indicates that Agent Orange was not stored on Okinawa. The Board finds the DoD report regarding the use, transportation and storage of Agent Orange to be the most probative evidence of record regarding the use and storage of Agent Orange on Okinawa because the DoD was the agency charged with producing and distributing Agent Orange. Additionally, the “Ecological Assessment” report does not clearly provide a basis or citation for the allegation that Agent Orange was stored on Okinawa. Moreover, even assuming this report is sufficient evidence to demonstrate that barrels of Agent Orange were stored at Okinawa at some point, this article does not provide competent evidence that the Veteran was actually exposed to the herbicides allegedly contained in the barrels. The 1971 Army report appears to distinguish between Agent Orange storage in Vietnam and other herbicides kept on Okinawa, and does not provide any information regarding the chemical makeup of the herbicides allegedly kept on Okinawa. Also, the probative value of this report is diminished by the fact that a complete copy of the report could not be obtained. The ecological report completed in response to the fish kills studied an area on Okinawa away from Kadena Air Force Base, and appears to focus on a time period at least five years after the Veteran left Japan. These articles and reports, either each alone or taken together, do not establish that the Veteran was exposed to herbicide agents as defined by VA regulations on Okinawa at the time the Veteran was serving there. The Board finds the January 2013 report discussing allegations of herbicide use on Okinawa to be highly probative, as it relies on and cites to documents clearly indicating where Agent Orange was authorized to be shipped, stored, and used. Its findings are consistent with the DoD’s response that there are no records of Agent Orange on the island. Finally, the Board finds the Air Force Historical Research Agency’s response to be probative as well, as it relied on the unit history and documentation of the operations in which the unit participated. In particular, the Board finds persuasive the explanation regarding the tools that returned from Vietnam, that these would not be contaminated with Agent Orange residue because they would not have been in the well-controlled spray zone. Therefore, the Board finds the Appellant’s contention that the Veteran was exposed to herbicides on Okinawa is not supported by the evidence of record. As noted above, the Veteran’s lay statements of exposure are not competent evidence as he was not shown to have any specialized education or training that would allow him to identify herbicides by sight. The various reports and articles described above that appear to suggest that herbicides such as Agent Orange were either stored or used on Okinawa at some point are outweighed by the DoD response that indicates that Agent Orange was not used or stored on Okinawa. As noted above, even if these articles demonstrated that Agent Orange or other herbicides were either used or stored at Okinawa at some point, they are nonetheless not sufficient to demonstrate that the Veteran was actually exposed to herbicide agents while stationed on Okinawa. Accordingly, the evidence does not show that the Veteran’s arteriosclerotic heart disease and diabetes mellitus are related to service, specifically to herbicide exposure, as the evidence weighs against a finding of in-service exposure to herbicides. Therefore, service connection for arteriosclerotic heart disease and diabetes mellitus is not warranted. 2. Entitlement to service connection for neuropathy of the left and right upper and lower extremities, bilateral retinopathy, and hypertension, as secondary to diabetes mellitus (Continued on the next page)   Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). As service connection has not been established for diabetes mellitus, service connection on a secondary basis is not available for the Veteran’s neuropathy of the right and left upper and lower extremities, bilateral retinopathy, and hypertension. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.