Citation Nr: 21068726 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-34 751 DATE: November 12, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide agent exposure, is denied. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent, including Agent Orange, during his service. 2. The Veteran's coronary artery disease is not etiologically related to an in-service event, injury, or disease. 3. The Veteran's diabetes mellitus is not etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease (CAD) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1966 through June 1978. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. This matter is before the Board of Veterans' Appeal (Board) on appeal from a December 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is in the Veteran's file. The Board previously remanded the appeal in May 2020, and the matter has been returned for appellate consideration. As reflected in the following analysis section, the development ordered by the Board has been completed (namely determining whether the Veteran's duties rendered him eligible for the herbicide agent presumptions), the Board finds substantial compliance with its remand directive. Service Connection 1. Entitlement to service connection for coronary artery disease (CAD), to include as due to herbicide agent exposure. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure. The Appellant is seeking service connection for the Veteran's heart disability and diabetes mellitus on the basis that his disability is linked to exposure to an herbicide agent during active service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). VA has also established a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. § 3.309 (e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307 (d). 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 (the Vietnam Era). 38 C.F.R. § 3.307 (a)(6). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to such herbicide agents. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). The Veteran's current treatment records reflect a diagnosis of CAD and diabetes mellitus, as such the first element of service connection, a current disability, is met. Turning to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Board notes that the preponderance of the evidence is against finding that the Veteran's CAD and diabetes mellitus were incurred or aggravated during service, to include herbicide agent exposure. The objective medical evidence of record fully supports that conclusion. The Board notes that the Veteran's service personnel records (SPRs) do not show that the Veteran was deployed to Vietnam. The Appellant, however, contends that the Veteran reported that he was exposed to an herbicide agent during his time on the naval ships USS Ticonderoga (CVA-14), USS Kearsarge (CVS-33), and the USS Hornet (CVS-12) between October 1966 to December 1968. Moreover, the Veteran also reported that on two occasions he traveled on two different occasions to Da Nang to pick up misrouted mail. In June 2020, this matter was remanded for additional development as to whether the Veteran served within the 12 nautical mile territorial sea of Vietnam, in accordance with Procopio v. Wilkie. 913 F.3d 1371 (Fed. Cir. 2019). The April 2021 Herbicide Exposure Verification Memorandum found that the exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters (within 12 nautical mile territorial sea of Vietnam). The Board finds that the April 2021 Herbicide Exposure Verification Memorandum regarding Agent Orange exposure during the Veteran's naval service weigh against the Veteran's statements. There is no evidence that the Veteran was otherwise exposed to an herbicide agent. The naval ship that the Veteran served on from October 1966 to December 1968 did not come within 12 nautical mile territorial sea of Vietnam, nor is there any evidence to corroborate to support the contention that the went ashore to Vietnam on two different occasions. Based on the places and circumstances of the Veteran's service, the evidence does not support herbicide exposure. Accordingly, as herbicide exposure is not established, service connection may not be established for CAD and diabetes mellitus on the basis that it is linked to such exposure, presumptively or otherwise. The record does not otherwise support service connection for CAD and diabetes mellitus. Review of the Veteran's service treatment records documents no evidence of chronic complaints, treatment or diagnosis related to CAD and diabetes mellitus while on active duty. The Appellant, however, has not provided details alleging any in-service event or diagnosis that could be related to the Veteran's CAD and diabetes mellitus. As discussed above, the service treatment records do not support the Veteran's claim the onset of his disabilities during service. In fact, the Veteran was not diagnosed until many years after service discharge. The absence of post-service complaints, findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Thus, any assertions as to onset during service with subsequent continuity of are not supported by the objective evidence of record. Finally, absent evidence of an in-service incurrence, no VA examinations are necessary before the Board may decide this case. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding of an in-service event, injury, or disease, or that the Veteran's CAD and diabetes mellitus are causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, service connection for CAD and diabetes mellitus are denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.