Citation Nr: 21068740 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-12 053A DATE: November 12, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute basis is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to diabetes mellitus and Parkinson's disease, and to include as due to herbicide agent exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute basis is remanded. FINDINGS OF FACT The Veteran's type II diabetes mellitus was not manifested in service or within the Veteran's first post service year; and it is not shown to be related to his active service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute basis, on a substitute basis have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Navy from December 1958 to December 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in March 2020. The appellant in this case is the Veteran's surviving spouse who has been properly substituted. 38 C.F.R. § 3.1010. Under this statute, an eligible person may process any pending claims to completion following the death of a veteran. Such request must be filed not later than one year after the date of the Veteran's death and, as provided for in the provision, a person eligible. for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...." Id.;38 U.S.C. § 5121A. In April 2020, within a year from the Veteran's death in March 2020, the appellant filed a request to substitute for the Veteran in the claims under appeal at the time of his death. Thus, the claims listed on the cover page of this decision are properly before the Board with the appellant substituting for the deceased Veteran. Finally, this case has been the subject of previous Board remands. As reflected in the subsequent discussion, the development ordered specific to the issue being decided has been completed, and the Board finds substantial compliance with its directives for this issue. Service Connection 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection is also warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Certain chronic diseases, including type II diabetes mellitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). If a veteran was exposed to an herbicide agent during service, certain enumerated diseases shall be service connected even though there is no record of such disease during service, if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption includes type II diabetes mellitus. The regulations pertaining to herbicide agent exposure state the following: a veteran who, during active military, naval, or air service, 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 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)(iii). 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, operated in or near the Korean DMZ in an area in which herbicides 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). An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307 (a)(6)(v). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran asserted that his exposure to Agent Orange, herbicides, and pesticides while he was stationed at Atsugi Air Force Base in Japan caused his type II diabetes mellitus. He detailed that he believed that he was exposed because he worked between a large golf course and the base's flight line; Agent Orange was used to control the vegetation in that area. He also asserted that he was exposed to herbicides through second-hand contact with deliveries and personnel who traveled to Atsugi from east Asia and Vietnam. See April 2010 VA 21-4138 Statement in Support of Claim. The Veteran also asserts that his type II diabetes mellitus was secondary to nerve gas, mustard gas, and ionization exposure in Japan. See April 2014 Third Party Correspondence. Additionally, he asserts that his diabetes mellitus is secondary to yellow fever. See January 2018 Third Party Correspondence. Military personnel records confirm the Veteran was stationed at Atsugi Air Force Base from at least April 1960 to December 1962. Due to the fact that the Veteran was not stationed in Vietnam or the Korean DMZ during the requisite time to qualify for the presumption of exposure to herbicide agents under 38 C.F.R. § 3.307. Direct exposure to herbicide agents is also not shown. The Veteran and the appellant have submitted numerous documents and articles throughout the appeal period which purport to support the use of Agent Orange and herbicides in Japan around the time the Veteran was stationed at Atsugi. In a September 2021 memorandum, the Joint Services Records Research Center (JSRRC) noted that the Department of Defense (DOD) had not identified any location on Atsugi Air Force Base, Japan, where the Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. Atsugi Air Force Base was not on the Agent Orange shipping supply line, which went directly from storage at Mobile, Alabama, or Gulfport Mississippi, to South Vietnam through merchant ships. Also, there was no scientific evidence available to VA showing that Agent Orange was used on any golf courses or base flight lines in Japan. In conclusion, no evidence was located to support documentation of the claimed event. The Board finds this September 2021 memorandum to be highly probative that herbicide agents, specifically Agent Orange, were not used during the time that the Veteran was stationed at Atsugi Air Force Base in Japan. The Board acknowledges the Veteran's statements that he was exposed to herbicides through second-hand contact with deliveries and personnel who traveled to Atsugi from east Asia and Vietnam. Although the Veteran may have had contact with other service members for which exposure to herbicide agents is presumed, their presumptive exposure does not expand to everyone they came into contact with after the fact. In describing his theory of exposure, the Veteran did not claim to be able to identify herbicide agents on people, clothing, and/or equipment. He did not state that at any time during this service he was told by someone qualified to identify herbicide agents that the people, clothing, and/or equipment had retained such agents despite the rigors of their transport to Japan. Thus, the Veteran is not claiming to have actual firsthand knowledge of a specific incident in which he was exposed to herbicide agents. Absent competent and credible evidence of a specific incident of actual exposure, the Board does not concede exposure to herbicide agents. Further, the Veteran's military personnel records and service treatment records are silent for any instances of exposure to herbicides, pesticides, mustard gas, nerve gas, and/or radiation. The Veteran's service treatment records are silent for any signs, symptoms, diagnosis, or treatment for type II diabetes mellitus. The Veteran was not diagnosed with diabetes mellitus until many years after service. As such, service connection on a presumptive basis and service connection based on a theory of continuity of symptomatology is not warranted. In December 2017, the Veteran was afforded a VA examination. The Veteran was diagnosed with type II diabetes mellitus. The VA examiner stated that by the Veteran's own admission, the earliest that the Veteran could have been diagnosed with type II diabetes mellitus would have been in 1987. The Veteran stated Kaiser only kept medical records a few years, then destroyed them. The VA examiner explained that even accepting the Veteran's statement at face value, the Veteran would have only developed diabetes at the earliest, over 23 years after discharge, so it would not be service-connected. When asked about this, the Veteran said he was depending on somehow looking into evidence that there was Agent Orange at the base on Atsugi. Agent Orange was not known to have been used in Japan other than possibly in limited amounts in Okinawa. Hence, it was less likely not that the Veteran's type II diabetes mellitus was related to or otherwise incurred in service. Diabetes was not known to be caused by exposure to herbicides or pesticides. The Veteran was not known to have been exposed to nerve gas or mustard gas. Regarding the possibility of nuclear fallout or radiation exposure from the blast at Hiroshima, Hiroshima is located over 762 km nearly due west of the base at the town of Atsugi, Japan, (where this vet was stationed) in the opposite direction of the typical prevailing winds. The nuclear blast on Hiroshima was on 8/6/1945 (18 years earlier) and Nagasaki was much farther away, 3 days later. There had been no reports of excess radiation exposure related to service members being stationed at Atsugi in the 1960s time frame. In September 2018, a VA addendum medical opinion was obtained. The VA examiner opined that it was less likely than not that the Veteran's type II diabetes mellitus was incurred in or caused by exposure to pesticides in Japan during service. The VA examiner stated that by the Veteran's own admission, the earliest that the Veteran could have been diagnosed with type II diabetes mellitus would have been in 1987, while living in California and being treated at a hospital. The Veteran was started on pills only at first. The Veteran and his son stated that the hospital only kept medical records a few years and destroyed them. They did not have records from that time frame. When he moved to Georgia to be near his son in the early 1990s, he was already on insulin. Even accepting the Veteran's statement at face value, he would only have developed diabetes over 23 years after discharge, so it would not be service connected. When asked about this, the Veteran stated that he was depending on somehow looking into evidence that there was Agent Orange at the base in Atsugi, Japan. However, Agent Orange was not known to have been used in Japan other than possibly in limited amounts in Okinawa. Diabetes mellitus was not known to be caused by exposure to herbicides or pesticides. The Veteran was not known to have been exposed to nerve gas or mustard gas. Regarding the possibility of nuclear fallout or radiation exposure from the blast at Hiroshima, Hiroshima was located over 762 kilometers due west of the base at the town of Atsugi, Japan (where the Veteran was stationed) in the opposite direction of the typical prevailing winds. The nuclear blast on Hiroshima was on August 6, 1945 (18 years earlier), and Nagasaki was much farther away. There had been no reports of excess radiation exposure related to service members being stationed at Atsugi in the 1960s time frame. The VA examiner stated that the only article that "could possibly" have had some bearing on the Veteran's claim was the article submitted by the Veteran's agent. This article was entitled Pesticide Induced Diseases Database and was from the website "Beyond Pesticides." It was not a scientific research study published in a peer-reviewed journal. Pesticides and other environmental factors were almost always linked to type II diabetes mellitus without proper support. According to the online medical database UpToDate, which based its conclusions upon scientifically acceptable studies: "Type II diabetes mellitus was characterized by hyperglycemia, insulin resistance, and relative impairment in insulin secretion. It was a common disorder with a prevalence that rose markedly with increased degrees of obesity. The prevalence of type II diabetes had risen alarmingly in the past decade, in large part linked to the trends in obesity and sedentary lifestyle." They also cited the evidence in support of genetic susceptibility, increased incidence in certain ethnic groups, and environmental factors, but noted that increased weight gain and decreased physical activity in an elderly population were of far greater significance. This Veteran was clearly obese (BMI 34 on July 27, 2018) and for a variety of reasons related to his other disability, was noted at recent PCP visits to be quite sedentary. Other factors with objective evidence in support of them playing a role in the development of diabetes mellitus were drugs, thiazide diuretics, and antipsychotics. Although there was some evidence supporting environmental factors, including pesticide exposure, being linked to an increased risk of development of diabetes mellitus, even though authors of the article cited that their goal was to "stimulate further research in this area." It would be making a great leap to surmise that the most likely cause of the development of diabetes some 23 years following exposure to pesticides in Japan could be that exposure. The Veteran's diagnosis of diabetes mellitus was less likely than not (less than a 50 percent probability) incurred in or caused by the exposure to pesticides in Japan during service. In December 2020 a VA addendum medical opinion was obtained. The VA examiner opined that it was less likely than not that the Veteran's type II diabetes mellitus was incurred in or caused by the claimed in-service injury, event, or illness. A review of the records showed that the Veteran was diagnosed with diabetes mellitus in 1987. Records also showed that there were articles submitted by the Veteran and his spouse regarding pesticide exposure causing diabetes mellitus. The records showed that the Veteran had a history of obesity, which was already well-established as one of the most important risk factors from type II diabetes mellitus. There was also another opinion in 2018 that explained that although the articles between association between type II diabetes mellitus and pesticides were there, to state that pesticides were the main cause of type II diabetes mellitus 23 years later would be a "great leap" and purely speculative, especially in the presence of a major risk factor such as obesity. The only article that "could reasonably" have some bearing on the Veteran's claim was submitted by the appellant's agent, which was titled Pesticide-Induced Diseases Database and was from the website called "Beyond Pesticides." It was not a scientific research study published in a peer-reviewed journal. The claim was made that pesticides and other environmental factors were almost always linked to type II diabetes mellitus without proper support. The VA examiner explained that according to the online medical database UpToDate, which actually did base its conclusions upon scientifically acceptable studies: "Type II diabetes mellitus was characterized by hyperglycemia, insulin resistance, and relative impairment in insulin secretion. It was a common disorder with a prevalence that rose markedly with increasing degrees of obesity. The prevalence of type II diabetes mellitus had rose alarmingly in the past decade in large part linked to the trends in obesity and sedentary lifestyles. It also cited to the evidence in support of genetic susceptibility, increased incidence in certain ethnic groups, but did not note that increased weight gain and decreased physical activity in an elderly population were of far greater significance. The Veteran was clearly obese (BMI 34 on July 27, 2018) and for a variety of reasons related to his other disability was noted at recent PCP visits, including the latest on July 27, 2018, to be quite sedentary. Although there was some evidence supporting environmental factors, including pesticide exposure, being linked to an increased risk of development of diabetes mellitus, even the authors of the article cited stated that their goal was to "stimulate further research in this area." It would be a great leap to surmise that the most likely cause of the development of diabetes was about 23 years exposure to pesticides in Japan. Based on this evidence, it was less likely than not that there was a current type II diabetes mellitus condition caused by or incurred during the service, including exposure to pesticides. The Board finds the December 2017, September 2018, and December 2020 VA medical opinions to be adequate and probative in value when taken together as a whole. When read together as a whole, these medical opinions address the Veteran's lay statements, contentions, articles submitted, consider the Veteran's medical history, and provide a sufficient rationale for the conclusion. These medical opinions, as a whole, greatly weigh against the Veteran's claim for service connection for type II diabetes mellitus. As for the statements from the Veteran relating his type II diabetes mellitus to his active service, while he may be competent to testify as to the symptoms he experiences, it is beyond his competence as a layperson to opine that his type II diabetes mellitus is related to any event or injury in service. The Veteran is a layperson and lacks the training to opine regarding medical etiology; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (finding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's type II diabetes mellitus and his military experiences. Accordingly, the appeal seeking service connection for type II diabetes mellitus must be denied. The Board notes that the Veteran claims that his type II diabetes mellitus is secondary to yellow fever. However, the Board finds that type II diabetes cannot be granted based on a theory of secondary service connection. The Veteran is not service-connected for yellow fever; therefore, he does not meet all the elements for service connection on a secondary basis. Therefore, secondary service connection for type II diabetes mellitus is denied. The Board notes that the Veteran claims his type II diabetes mellitus is related to his claim under 38 U.S.C. § 1151 claim for neck surgery. The Veteran is not service-connected for neck surgery under 38 U.S.C. § 1151; therefore, service connection is not warranted under this basis either. REASONS FOR REMAND 2. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus and Parkinson's disease, and to include as due to herbicide agent exposure and pesticides, and to include entitlement to compensation under 38 U.S.C. § 1151, on a substitute basis, is remanded. VA medical opinions were obtained in April 2015, December 2017, and November 2021. The VA medical opinions of record did not fully address all of the Veteran's contentions. Specifically, the VA examiners did not address whether the Veteran's headaches were related to his exposure to pesticides while in Japan. The examiners did not address whether the in-service yellow fever vaccine (see January 2018 Correspondence regarding article that reported that headaches were a side effect of a yellow fever vaccine) caused the Veteran's headaches. Also, the November 2021 VA examiner did not fully address the theory of secondary service connection with regard to the Veteran's headaches and service-connected Parkinson's disease. The VA examiner only addressed aggravation and not causation. A remand is warranted to obtain a new VA addendum medical opinion to address these matters. The matters are REMANDED for the following action: 1. Obtain VA addendum medical opinion to determine the nature and etiology of the Veteran's headaches. If an opinion cannot be rendered without performing a VA examination, then a VA examination must be scheduled and conducted. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's headaches are proximately due to, caused by, and/or aggravated by his service-connected Parkinson's disease? (b.) Is it at least as likely as not that the Veteran's headaches are related to his in-service yellow fever vaccine? See January 2018 Correspondence (medical article listing headaches as a side effect of yellow fever vaccine). The Board notes that the Veteran was vaccinated for yellow fever while he was in the military. The Board has conceded that the Veteran was exposed to the yellow fever virus during his military service. See December 2017 C&P Exam. (c.) Is it at least as likely as not that the Veteran's headaches are related to his exposure to pesticides during his military service in Japan? It has already been conceded that the Veteran was exposed to pesticides during his service in Japan. All medical opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.