Citation Nr: 21065779 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-24 146 DATE: October 27, 2021 ORDER Entitlement to service connection for Diabetes Mellitus Type II (DM) due to herbicide agent (Agent Orange) exposure is denied. Entitlement to service connection for a heart condition due to herbicide agent (Agent Orange) exposure is denied. FINDINGS OF FACT 1. The Veteran served in Korea from June 1964 to June 1965; he did not serve in the DMZ of Korea during the period from April 1, 1968 to August 31, 1971. 2. The Veteran's Diabetes 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, to include exposure to herbicide agent (Agent Orange). 3. The Veteran's heart condition 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, to include exposure to herbicide agent (Agent Orange). CONCLUSIONS OF LAW 1. The criteria for service connection for Diabetes Mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 to January 1967. Service Connection Entitlement to service connection for Diabetes Mellitus Type II (DM) and a heart condition due to herbicide agent (Agent Orange) exposure. The Veteran asserts that his Diabetes and his heart condition are due to Agent Orange exposure from his service in South Korea from June 1964 to June 1965. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, 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' - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). 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, known as Agent Orange (AO), 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). The United States DOD has also confirmed that Agent Orange was used from April 1, 1968 through August 31, 1971 along the demilitarized zone (DMZ) in Korea. Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). If exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The DMZ cuts the Korean Peninsula roughly in half following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. The DoD has advised that herbicides were not applied within the DMZ, but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36640, 36641. If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acne form disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 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 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Note 2 of 38 C.F.R. § 3.309(e) indicates that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide agent exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). As an initial matter, the medical evidence of record shows that the Veteran was diagnosed with Diabetes in March 2009 and mild/chronic microvascular ischemic disease in May 2015, thus satisfying the requirement of a current disability. As stated above, the presumption for service connection for Diabetes and Ischemic heart disease applies only to exposure at the DMZ from April 1, 1968 to August 31, 1971. A thorough review of the Veteran's military personnel records (MPR) show that he served from January 1964 to January 1965, with a year of service in South Korea from June 1964 to June 1965 in Headquarters Company, Second Battalion, Eight Cavalry Division (HHC, 2d Bn. 8th Cav). As such, none of the Veteran's service overlaps with the DoD's report of herbicide agent application in South Korea. Moreover, the Veteran's unit is not one of the units that DoD has determined operated in or near the Korean DMZ. The Federal Register lists the specific units that DoD identified that served in areas along the DMZ in Korea where herbicide agents were used during the presumptive period. Exposure to herbicides is to be conceded for veterans who allege service along the DMZ in Korea and were assigned to certain units between the applicable period. The Veteran's assigned unit is not listed among those recognized by the DOD as having served along the Korean DMZ and the Veteran has not alleged having been assigned to a different unit that is listed by the DOD as having been stationed along the DMZ during this time period. See 74 Fed. Reg. 36640, 36641. The Board notes that the Veteran has submitted several statements (July 2018, December 2018, July 2019) in which he contends that a friend told him that Agent Orange was used inside the DMZ in Korea from 1962 to 1965. He also submitted copies of webpages titled, "agent orange in korea 1962 to 1965 Yahoo Image Search Results" in July 2019. The Board has considered this lay evidence. However, the Board finds that such generic research, which does not address the facts in this particular Veteran's case, and does not show that this Veteran had any exposure to herbicide agents, does not amount to competent evidence. Additionally, this lay evidence does not overcome the probative evidence from the Veteran's MPR and the DoD determinations regarding the use of herbicide agents in Korea. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a final matter, the Board notes that a VA examination is not required in this instance. In this claim, the sole evidence of a link between the Veteran's current diagnoses of DM and ischemic heart disease, has been the Veteran's own assertions that he was exposed to Agent Orange in a place and at a time for which the probative evidence shows no such use of Agent Orange. Under current case law, such bare assertions, standing alone, do not suffice to trigger the duty to obtain a VA examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (holding that a veteran's "conclusory generalized statement" that an in-service event caused his current medical problems was not "enough to entitle him to a medical examination...Since all Veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every Veteran's disability case. If Congress had intended that requirement, presumably it would have explicitly so provided.") Accordingly, the Board finds that the probative evidence of record shows that the Veteran's service in Korea does not meet the criteria for presumptive service connection for either Diabetes or ischemic heart disease due to herbicide agent exposure, as the Veteran was not assigned to Korea during the presumptive period of herbicide agent application, nor was he assigned to a unit that operated in or near the DMZ of Korea. Service connection could still be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To that end, the Board has considered whether there is otherwise a direct link between the Veteran's Diabetes or ischemic heart disease and his service. The Board notes that his service treatment records contain no treatment for or complaints of Diabetes or any heart condition, nor has he asserted that either his Diabetes or his heart condition had an onset in service. Without an in-service disease, injury, or event, as is the case here, the required elements for direct service connection are not met. 38 C.F.R. § 3.303. The Board also notes that Diabetes and heart disease may be service-connected as chronic diseases under 38 C.F.R. § 3.309. However, in this case, the record first notes a diagnosis of Diabetes in 2009, 42 years after his separation from service, and a diagnosis of a heart condition in May 2015, 48 years after his separation from service. These dates are well outside of the period for presumptive service connection for Diabetes or heart disease as a chronic disease manifested to a compensable degree within the first post-service year. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In sum, the Veteran's claims for service connection for Diabetes and for ischemic heart disease must denied under any theory of entitlement for service connection. The probative evidence of record shows that the Veteran was not in the Korean DMZ during the period in which the DoD has determined that herbicide agents were used, he had no in-service Diabetes or heart condition treatment or complaints, and his disabilities began well outside of the time period for presumptive service connection for certain chronic diseases. Accordingly, the Board finds that service connection for Diabetes and service connection for ischemic heart disease are not warranted. 38 C.F.R. § 3.303, 3.307, 3.309. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.